         [Cite as State v. Kinney, 2018-Ohio-404.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-160415
                                                         TRIAL NO. B-1506803-C
        Plaintiff-Appellee,                          :

  vs.                                                :      O P I N I O N.

DARRELL KINNEY,                                      :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 2, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger Kirk, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}     Defendant-appellant Darrell Kinney pleaded guilty to two counts of

aggravated burglary under R.C. 2911.11(A)(1), two counts of aggravated robbery under

R.C. 2911.01(A)(1), two counts of kidnapping under R.C. 2905.01(A)(2), one count of

carrying a concealed weapon under R.C. 2923.12(A)(2), and one count of vandalism

under R.C. 2909.05(B)(2), in connection with an armed home invasion.                  The

aggravated-robbery, aggravated-burglary, and kidnapping offenses each carried a three-

year gun specification.

       {¶2}     In this appeal, Kinney challenges the voluntariness of his guilty pleas,

and the trial court’s imposition of a 34-year aggregate prison sentence. Because we

conclude the trial court failed to substantially comply with Crim.R. 11(C), we reverse the

trial court’s judgment and remand the cause for further proceedings consistent with this

opinion and the law.

                            Factual and Procedural Posture

       {¶3}     Kinney was indicted along with two codefendants for multiple felony

offenses stemming from his involvement in the armed home invasion of a prominent

local attorney, Stanley Chesley, and his wife, Susan Dlott, a federal district court

judge. Kinney was charged with three counts of aggravated burglary, three counts of

aggravated robbery, one count of robbery, four counts of kidnapping, two counts of

felonious assault, one count of having a weapon while under a disability, one count of

carrying a concealed weapon, one count of receiving stolen property, one count of

vandalism, and one count of escape. The aggravated-burglary, aggravated-robbery,

robbery, kidnapping, and felonious-assault offenses were each accompanied by one-

year and three-year gun specifications.




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       {¶4}     Kinney withdrew his not guilty pleas and pleaded guilty to two counts

of aggravated burglary, two counts of aggravated robbery, two counts of kidnapping

and the accompanying three-year gun specifications, carrying a concealed weapon,

and vandalism. In exchange for his guilty pleas, the state dismissed the remaining

charges and gun specifications.

       {¶5}     Thereafter, the trial court engaged Kinney in a Crim.R. 11 dialogue on the

record. After the prosecuting attorney read the facts from the indictment, Kinney

indicated that he understood the charges against him, that no one had threatened him to

enter the plea, and that he was pleading guilty of his own free will.

       {¶6}     The trial court told Kinney that the two aggravated-burglary, two

aggravated-robbery, and two kidnapping counts were first-degree felonies and that each

offense carried a potential maximum sentence of three to 11 years in prison and a

maximum fine of $20,000. It further informed Kinney that he was also pleading guilty

to a three-year gun specification for each of these first-degree-felony charges, that the

three-year specifications each carried mandatory prison time, and that the time on the

specifications was required to be served consecutively and prior to any time imposed on

the underlying first-degree felonies.

       {¶7}     The trial court also informed Kinney that the carrying-a-concealed-

weapon count was a fourth-degree felony that carried a maximum term of six to 18

months in prison and a $5,000 fine, and that the vandalism count was a fifth-degree

felony that carried a six-to-12 month prison term and a $2,500 fine. The court then told

Kinney that he would be subject to five years of postrelease control and explained the

penalties for violating postrelease control. Kinney answered in the affirmative when the

trial court asked if he understood the charges against him and the possible penalties.

The court further explained that “ ‘probation’ was not a possibility in the case.”



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}     Next, the trial court inquired whether Kinney had read and understood

the guilty plea form. Kinney indicated he had read and understood the written guilty

plea form. The trial court also questioned whether Kinney had the opportunity to

discuss the pleas with his counsel. Kinney answered affirmatively. Then the court asked

Kinney if he was currently on parole. When Kinney responded affirmatively, the trial

court informed Kinney that by pleading guilty, he could violate his parole, and that any

prison time imposed on the parole violation could be additional to the sentence imposed

in the current case.

       {¶9}     The trial court next explained to Kinney the constitutional rights he

would be waiving by pleading guilty, and Kinney acknowledged that he understood these

rights. The trial court asked Kinney if he had ingested any drugs or medication in the

last 24 hours, and Kinney stated he was on prescription medication that helped him to

think clearer. The trial court asked defense counsel if Kinney was entering the pleas

knowingly, voluntarily and intelligently. Counsel replied affirmatively. The trial court

then accepted Kinney’s guilty pleas as voluntary.

       {¶10}    Later that day, Kinney was brought back before the trial court. The trial

court advised Kinney that the written guilty plea form was wrong with respect to the

first-degree felonies. The plea form had incorrectly stated that none of the time for the

first-degree felonies was “mandatory” prison time.        The court explained that a

mandatory prison term had to be imposed for the underlying counts associated with the

gun specifications to which he had pleaded guilty. The following exchange then took

place on the record:

               Kinney: See I didn’t even know that, ma’am.




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               Defense counsel: Yeah, well, it goes along with exactly what we

       talked about. Nothing will change as far as sentencing. Nothing will

       change as far as what you plead to —

               The Court: Exactly.

               Defense counsel: — because we knew you weren’t going to get

       community control. But we just had to —

               Kinney: I thought the only mandatory time was the gun specs.

               The Court: The gun specs. Well, the gun specs have to be run

       consecutive to something, so I have to impose a sentence on the

       underlying counts.

       {¶11}   Defense counsel advised Kinney that nothing would change as far as his

sentencing, because Kinney knew he was not going to get community control.

               Defense counsel: Remember how we talked about how the

       minimum sentence in the best possible way could be six years? The three

       years on the gun spec. So that’s all we’re talking about is to clarify that.

               Kinney: So it’s mandatory time on my original charges running

       consecutive with the gun spec time?

               Defense counsel: Yes.

               Kinney: So that’s more time isn’t it?

               Defense counsel: No.

               The Court: No. The number that you discussed with your lawyer

       it still comes out the same. We just failed to write it on the form. There is

       no additional time we are informing you about right now.

               Defense counsel: You heard it from the judge. So it doesn’t affect

       the time we are talking about. Is that correct, Your Honor?



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                 The Court: That’s correct.

       {¶12}     The court, the prosecuting attorney, defense counsel, and Kinney then

engaged in a lengthy discussion about whether the sentences on the underlying charges

could be run concurrently or consecutively to each other and to the gun specifications.

The court explained that it could impose any time on the six underlying first-degree-

felony offenses concurrently, so Kinney would just get one three-year sentence. But the

court explained that each of the six underlying charges had a three-year gun

specification.   So the 18 years on the gun specifications would have to be served

consecutive to the three-year minimum sentence on the underlying offense, if the court

would impose that sentence.

                 Kinney: It does make it clear, but I was under, you know a whole

       other thought process. I thought after 18 I could file for this and come

       home.

                 The Court: You’re right. You could file. But there is – well –

                 Kinney: But the other mandatory time. I’ll have to wait longer.

                 Defense counsel: Well, I think we’re all talking about the same

       thing.    It doesn’t change at all what we talked about for a possible

       sentence at all. That’s the most important thing. We just had to clarify on

       the record what it meant.

                 Kinney: I didn’t sign for that, though.

                 Defense counsel: Yeah, you did, actually.

                 Kinney: I thought the only mandatory time I was facing was my

       gun specs. I didn’t know – you know, that’s the only thing I have been

       basing my whole thing about.

                 Defense counsel: * * * Everything we talked about is still the same.



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               OHIO FIRST DISTRICT COURT OF APPEALS



        Kinney: I’m kind of special. I’m sorry.

        Defense counsel: Everything we talked about is still the same.

You have to do your gun specs. That’s still the same. But the Judge had

just told you she could run them concurrently, the underlying charges,

not the gun specs. And that will give you three years.

        Assistant prosecuting attorney: Yeah. It doesn’t have any impact

on judicial release.

        Defense counsel: It doesn’t have any impact on anything we

talked about this morning. We just had to clarify and put it on the record.

        Kinney: I didn’t sign for that.

        Defense counsel: Yeah, you did. We’re just talking about the same

thing. We’re just putting on the record that you have to do at least three

years on the underlying charge. But when we talked about our possible

sentences, we included that.

        The Court: When you left here this morning, what did you think

was the minimum time you could get on all this?

        Kinney: I knew that the mandatory time was 18. And * * * my old

attorney, he had said six years would be the minimum. But then I had

talked to the prosecutor and he said something totally different.

        Assistant prosecuting attorney: Well, 18 is correct.

        The Court: They’re right. The minimum of 18 — and that has not

changed by this conversation that we just had. The minimum is 18.

Okay?

        Kinney: Yes ma’am.




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               OHIO FIRST DISTRICT COURT OF APPEALS



        The Court: And then you can file for whatever you want for – if I

give you more than that. You have to serve those 18 because that’s the

gun specifications.

        Kinney: Right.

        The Court: Whether I run the underlying charges concurrently or

consecutively, we’ll decide that at sentencing.         But that 18 has not

changed as far as once you serve that 18 mandatory, you can file for

judicial release, post you know, whatever it is that they offer at that point.

You know, they call them oatmeal cookie days, your good time days, and

stuff like that. You got to serve the 18 for the gun specifications and then

kind of the gate opens in the sense of you can file for things, you can earn

credit, all of that after the 18 is served. So that has not changed at all.

        The Court: So you’re still good with all of this?

        Kinney:    Not for real.      Like, I was under a whole ‘nother

impression for real, but like, I mean, I understand everything that is being

said right now. But I didn’t originally sign knowing that I had mandatory

time on my other charges. I thought personally that after 18 – after 18 I

would be able to come – you know, and you just said that I would still be

able to, but I didn’t know about the whole – the three years here, three

years there, and —

        Defense counsel: Do you understand it now?

        Kinney: I definitely understand it. But I’m not okay with it. I

didn’t understand. I didn’t sign for that.

        Defense counsel: Well you can withdraw your plea and go to trial.

        Kinney: I don’t want to go to trial.



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              OHIO FIRST DISTRICT COURT OF APPEALS



       Defense counsel: Well, then there you go. If you don’t want to go

to trial, this is the plea. It’s exactly like we explained it to you. We just

had to clarify it on the record. So you want to stay with it.

       Kinney:    I still feel like I signed something without knowing

everything that was –what was going on.

       Defense counsel: But now it has been explained to you. Do you

want --.

       Kinney: It’s already happened. You know, I already done signed

it.

       Defense counsel:      Do you want to go ahead with this? You’ve

already signed it and we have already explained it to you now twice. Do

you want to go ahead with it?

       Kinney: No.

       The Court: You want to tear up the plea and go to trial?

       Kinney: I don’t want to go to trial but I don’t –

       Defense counsel: That is what is going to happen if you don’t-

       The Court: Those are your only options. The deal isn’t going to

get any better. The State is offering this, exactly what you plead to this

morning. Nothing has changed. So it’s either stick with this or go to trial.

Those are your only options.

       Kinney: It was pointless bringing me down here.

       Defense counsel: No, it wasn’t because we –

       Kinney: I understand that you all got to bring it to my knowledge,

but – it’s not going to change nothing.

       Defense counsel: Right.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



                Kinney: It’s too late. I already signed it.

                Defense counsel: It’s not changing anything. So you want – we’re

        going to go ahead with it. Okay? All right. I think we’re going to go ahead

        with it, Your Honor. Thank you.

                The Court: Very good, thank you.

                Defense Counsel: All right. I’ll see you later. We’ll get ready then

        for sentencing. (Emphasis added.)

        {¶13}    The record reflects that the guilty plea form was changed. Under the

heading for mandatory prison term, the number zero was whited out for each of the

first-degree felonies and the number three was written in. Defense counsel placed his

initials next to the changes on the plea form. Kinney, however, did not re-sign the plea

form following these changes. Thus, the amended guilty plea form stated that each first-

degree felony carried a prison term of three to 11 years, but that only three years of that

prison term was mandatory time. The plea form further provided that Kinney would be

ineligible for judicial release for any mandatory term the trial court imposed. According

to the plea form, Kinney was subject to a mandatory three-year prison term for each of

the six first-degree felonies and a three-year mandatory prison term for each of the

accompanying firearm specifications, for a total of 36 years of mandatory prison time.

        {¶14}    Prior to sentencing, the state filed a sentencing memorandum. The state

asserted that Kinney had a prior conviction for burglary, a second-degree felony, and

thus, pursuant to R.C. 2929.13(F)(6) he was subject to a mandatory prison term for all

six of the first-degree felonies.

        {¶15}    The trial court sentenced Kinney to nine years in prison for each

aggravated-burglary count, to be served consecutively to the accompanying three-year

gun specification, to nine years in prison for each aggravated-robbery count to be served



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                      OHIO FIRST DISTRICT COURT OF APPEALS



consecutively to the accompanying three-year gun specification, to nine years for each

kidnapping count to be served consecutively to the accompanying gun specification, to

18 months for carrying a concealed weapon, and to 12 months for vandalism.

       {¶16}    The trial court ordered the nine-year sentences for counts one, the

aggravated burglary, count four, the aggravated robbery, and count eight, the

kidnapping which involved Chesley, and the 12-month sentence on vandalism to be

served consecutively to each other and consecutively to the three-year gun specifications

accompanying counts one and eight. The sentences on the remaining counts, including

the gun specifications, were run concurrently with each other and with the sentences on

counts, one, four, eight, and 18. The total aggregate sentence was 34 years, 33 years of

which was mandatory prison time.

                                   Kinney’s Guilty Pleas

       {¶17}    In his first assignment of error, Kinney argues that his guilty pleas

were involuntarily made because the trial court failed to comply with Crim.R. 11.

       {¶18}    When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. State v. Engle, 74 Ohio St.3d 525, 527,

660 N.E.2d 450 (1996). Before accepting a guilty plea in a felony case, a trial court must

inform the defendant that he is waiving certain constitutional rights, including the

privilege against compulsory self-incrimination, the right to a jury trial, the right to

confront his accusers, and the right of compulsory process of witnesses. See State v.

Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 12. In addition to these

constitutional rights, the trial court is also required to determine that the defendant

understands the nature of the charge, the maximum penalty involved, and the effect of

the plea. Crim.R. 11(C)(2)(a-b); Jones at ¶ 12.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19}   While the trial court must strictly comply with Crim.R. 11 when notifying

a defendant of the constitutional rights set forth in the rule, it need only substantially

comply when informing the defendant of the nonconstitutional ones. State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14 and 18. “Substantial

compliance means that under the totality of the circumstances the defendant

understands the implications of his plea and the rights he is waiving.” State v. Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). A trial court’s “failure to comply with

nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered

prejudice.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

The test for prejudice is whether the plea would have otherwise been made. Id.

       {¶20}   Kinney argues that his guilty pleas were not voluntarily, intelligently,

or knowingly made, because he expressed repeated confusion about the potential

maximum sentence and whether the underlying charges carried mandatory

sentences as opposed to the mandatory nature of the gun specifications.

       {¶21}   A prison term is presumed for a first- or second-degree felony. R.C.

2929.13(D)(1). A trial court can impose community control if it makes certain findings.

R.C. 2929.13(D)(2). A trial court can only impose community control if the offender is

not required to serve a mandatory prison term. A mandatory prison term also affects a

defendant’s ability to seek judicial release. R.C. 2929.20(A)(1)(a), (B), and (C). A

defendant serving a mandatory prison term is ineligible for judicial release. See State v.

Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11.

       {¶22}    This court has held that the trial court is under no obligation to inform a

defendant regarding his eligibility for judicial release. See State v. Simmons, 1st Dist.

Hamilton No. C-050817, 2006-Ohio-5760, ¶ 13. However, if a defendant who pleads

guilty is misled as to whether he would be eligible for judicial release or when he



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                      OHIO FIRST DISTRICT COURT OF APPEALS



becomes eligible to apply for judicial release, other courts have held that the defendant’s

guilty plea was invalid. See State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, 865

N.E.2d 37, ¶ 3, 11, and 16; State v. Williams, 8th Dist. Cuyahoga Nos. 104078 and

104849, 2017-Ohio-2650, ¶ 21-22; State v. Ealom, 8th Dist. Cuyahoga No. 91455, 2009-

Ohio-1365, ¶ 5; State v. Cox, 3d Dist. Union No. 14-06-47, 2007-Ohio-6023, ¶ 18; State

v. Silvers, 181 Ohio App.3d 26, 20098-Ohio-687, 907 N.E.2d 805, ¶ 15 (2d Dist); State

v. Lloyd, 6th Dist. Erie Nos. E-10-055 and E-10-056, 2011-Ohio-2964, ¶ 18.

       {¶23}    R.C. 2929.13(F)(6) requires a mandatory prison term for any offense

that is a first- or second-degree felony when the defendant has a prior conviction for a

first- or second-degree felony. Here, Kinney was subject to a mandatory prison term for

each of the six first-degree felonies because of his prior second-degree-felony conviction

for burglary. When an offender is sentenced to a mandatory prison sentence, it carries

additional ramifications, as the offender will not be eligible for community-control

sanctions or judicial release or certain other reductions in sentence. State v. Cruz, 8th

Dist. Cuyahoga No. 96999, 2012-Ohio-1943, ¶ 10.

       {¶24}    The record reflects that Kinney’s ability to file for judicial release was a

factor in his decision to plead guilty.    Although the trial court clarified that Kinney

would be required to serve mandatory time on the underlying first-degree felonies, both

the trial court and the amended plea form incorrectly stated that only three years of the

three-to-11-year term was mandatory, when in fact any prison term imposed within this

range would be mandatory time. Although Kinney stated that he understood the time

on the underlying offenses was mandatory, he could not have fully appreciated the effect

of his pleas, because the trial court, defense counsel, and the prosecuting attorney

repeatedly told Kinney that the mandatory time on the underlying first-degree-felony

offenses would not affect his sentence or his eligibility for judicial release. They assured



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Kinney that he would still be eligible to file for judicial release after serving the

mandatory 18 years on the gun specifications. This advisement was legally erroneous.

Any time the trial court imposed on the underlying first-degree-felony charges was also

mandatory time that Kinney would have to serve without judicial release.               R.C.

2929.13(F)(6); Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, at ¶ 11.

Because the trial court failed to accurately explain the mandatory nature of the time

Kinney would serve on the underlying first-degree felonies, it failed to substantially

comply with Crim.R. 11.

       {¶25}    Kinney, however, must show that he suffered prejudice from the trial

court’s legal misadvisement.     That is, he must demonstrate that he would not have

pleaded guilty absent the trial court’s erroneous advisement as to the sentence. We

recognize that the amended plea form incorrectly stated that Kinney would be subject to

36 years of mandatory prison time: three years of mandatory time on each of six first-

degree-felony counts and three years for each accompanying gun specification.          The

record reflects, however, that Kinney did not sign the amended plea form and that the

form incorrectly stated that only three years of the three-to-11-year prison term for the

underlying first-degree felonies was mandatory prison time. Moreover, the record

reflects that Kinney relied on the trial court’s assurances about the nature of the

mandatory terms at the plea hearing.

       {¶26}    The state argues that Kinney cannot establish prejudice because,

although displeased with the possible penalties he faced, he repeatedly stated that he did

not want to reject his guilty pleas and proceed to trial.         We disagree.    Kinney’s

statements that he did not want to proceed to trial were made immediately after the trial

court’s assurances that the imposition of mandatory prison terms on the underlying

offenses would not affect his sentence or his eligibility to apply for judicial release. The



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trial court told Kinney that nothing had changed after its additional advisement and that

Kinney would still be eligible to apply for judicial release after he had served 18 years on

the gun specifications. Because Kinney was ultimately sentenced to 34 years in prison,

33 years of which was mandatory time, when he was repeatedly reassured by the trial

court that he would be eligible to apply for judicial release after 18 years, we hold he has

demonstrated prejudice. See State v. Bryant, 4th Dist. Meigs No. 11CA19, 2012-Ohio-

3189, ¶ 13-17; see also State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462, ¶ 39 (holding that the defendant’s plea was not knowingly, voluntarily, or

intelligently made given the trial court’s expanded, but inaccurate explanation of the

law). We, therefore, sustain his first assignment of error.

       {¶27}    Our resolution of Kinney’s first assignment of error has rendered

moot his second assignment of error in which he argues that his sentence is contrary

to law because the trial court failed to merge as allied offenses of similar import the

two aggravated-burglary, two aggravated-robbery, and two kidnapping offenses, and

because it failed to make the necessary findings before imposing consecutive

sentences. See App.R. 12(A)(1)(c). We hold that the trial court erred in accepting

Kinney’s guilty pleas, because the court failed to substantially comply with Crim.R.11.

We, therefore, reverse the trial court’s judgment and remand this matter for further

proceedings consistent with this opinion and the law.

                                                  Judgment reversed and cause remanded.

MOCK, P.J., and MILLER, J., concur.


Please note:
       The court has recorded its own entry this date.




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