[Cite as State v. Rogers, 2016-Ohio-1382.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103227


                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.


                                     ROBERT ROGERS
                                                    DEFENDANT-APPELLANT



                           JUDGMENT:
             CONVICTION AFFIRMED; SENTENCE VACATED;
                  REMANDED FOR RESENTENCING


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-592218-A

        BEFORE: Kilbane, J., Keough, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                   March 31, 2016
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 200
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Gregory J. Ochocki
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Robert Rogers (“Rogers”), appeals from his guilty

plea and sentence for operating a vehicle under the influence of alcohol or drugs (“OVI”),

in violation of R.C. 4511.19(A)(1)(a). The state concedes that Rogers’s sentence is

contrary to the Ohio Supreme Court’s decision in State v. South, 144 Ohio St.3d 295,

2015-Ohio-3930, 42 N.E.2d 734. Having reviewed the record and the controlling case

law, we agree that Rogers must be resentenced.      Therefore, we affirm his conviction,

vacate his sentence, and remand the matter for resentencing.

      {¶2} In January 2015, Rogers was charged with two counts of OVI. Count 1

was brought pursuant to R.C. 4511.19(A)(1)(a) (operating under the influence) and

carried a furthermore clause stating Rogers’s previous OVI conviction in CR-05-470506

and the forfeiture of his vehicle. Count 2 was brought pursuant to R.C. 4511.19(A)(1)(d)

(alcohol concentration of eight-hundredths of one gram or more but less than

seventeen-hundredths of one gram) and carried a furthermore clause stating Rogers’s

previous conviction in CR-05-470506 and a forfeiture specification of his vehicle. Both

counts were third-degree felonies because of Rogers’s previous felony conviction in

violation of R.C. 4511.19.1




      1A  review of the record reveals that Rogers was previously convicted of OVI
six other times, spanning from 1984-1999.
       {¶3} Pursuant to a plea agreement, Rogers pled guilty to Count 1 and forfeited

his vehicle. In exchange, the state nolled Count 2. The trial court sentenced Rogers to

five years in prison, including a mandatory 60 days of imprisonment. The court also

sentenced him to three years postrelease control.

       {¶4} Rogers now appeals, raising the following two assignments of error for

review.

                                Assignment of Error One

       The trial court imposed a sentence contrary to law.

                                Assignment of Error Two

       [Rogers’s] guilty plea was not knowingly and voluntarily entered.

                                         Sentence

       {¶5} In the first assignment of error, Rogers contends and the state concedes that

the proper sentencing range for his sentence is between nine to thirty-six months, as set

forth by the Ohio Supreme Court in South,144 Ohio St.3d 295, 2015-Ohio-3930, 42

N.E.2d 734

       {¶6} In South, the defendant was charged with one count of OVI, in violation of

R.C. 4511.19(A)(1)(a), a third-degree felony, and a repeat-offender specification under

R.C. 2941.1413; one count of OVI, in violation of R.C. 4511.19(A)(1)(d), a third-degree

felony; and one count of driving under suspension, in violation of R.C. 4510.11, a

first-degree misdemeanor. The jury returned a guilty verdict on each count, including the

specification. Id. at ¶ 2.
       {¶7} The trial court merged the two OVI counts for sentencing purposes. The

court imposed a three-year sentence for the specification, plus an additional, consecutive

five-year sentence for the underlying OVI offense. The court characterized both counts

as “mandatory.” Id. at ¶ 3. South appealed to the Ninth District Court of Appeals,

which vacated his sentence, holding that it was contrary to law. Id. at ¶ 4. The Ninth

District found that South’s sentence “‘had to consist of a one- to five-year mandatory

prison term on his specification[,] R.C. 4511.19(G)(1)(e)(i), ‘and a prison term’ of any

duration specified in division (A)(3) of [R.C. 2929.14].’” Id. at ¶ 4, quoting State v.

South, 9th Dist. Summit No. 26967, 2014-Ohio-374, ¶ 17, quoting R.C. 2929.14(B)(4).

Because the trial court’s five-year sentence exceeded the permissible maximum under

R.C. 2929.14(A)(3)(b), the Ninth District vacated the sentences related to his underlying

OVI conviction and the specification, and remanded the matter to the trial court for

resentencing. Id. at ¶ 4.

       {¶8} On appeal to the Ohio Supreme Court, the South court addressed the interplay

of R.C. 4511.19, 2941.1413, 2929.13, and 2929.14 and found that the permissible

sentencing range for a third-degree-felony-OVI is “a discretionary 9- to 36-month definite

prison term for the underlying OVI conviction.” Id. at ¶ 19. The court stated:

       R.C. 2929.14 applies if a sentencing court elects or is required to impose a
       prison term. R.C. 2929.14(A)(3)(a) provides that for a felony of the third
       degree that is a violation of listed offenses not at issue here, the term “shall
       be” in the range of 12 to 60 months. But for third-degree-felony offenses
       not listed in division (A)(3)(a), “the prison term shall be nine, twelve,
       eighteen, twenty-four, thirty, or thirty-six months.” R.C. 2929.14(A)(3)(b).

       R.C. 2929.14(B)(4) also provides:
       If the offender is being sentenced for a third or fourth degree felony OVI
       offense under [R.C. 2929.13(G)(2)], the sentencing court shall impose upon
       the offender a mandatory prison term in accordance with that division. In
       addition to the mandatory prison term, * * * if the offender is being
       sentenced for a third degree felony OVI offense, the sentencing court may
       sentence the offender to an additional prison term of any duration specified
       in division (A)(3) of this section.

       Again, several points are important. First, because the underlying OVI
       offense at issue here is not one of the excepted third-degree felonies listed
       in R.C. 2929.14(A)(3)(a), subsection (A)(3)(b) provides a sentence of 9 to
       36 months for that offense. Second, R.C. 2929.14(B)(4) repeats the
       requirement of imposing a one- to five-year sentence arising from R.C.
       2929.13(G)(2) and the specification conviction. And finally, for those
       specification-offenders     sentenced     under     R.C.     2929.13(G)(2),
       R.C. 2929.14(B)(4) expressly states that for third-degree-felony-OVI
       offenses, a sentencing court may impose “an additional prison term of any
       duration specified” in R.C. 2929.14(A)(3), that is, a sentence of 9 to 36
       months for the underlying OVI offense.

Id. at ¶ 16-18.

       {¶9} The South court applied the foregoing to South’s sentence and found that his

specification-related sentence — a mandatory three-year prison term — was not contrary

to law because courts must impose a prison term of one, two, three, four, or five years for

the R.C. 2941.1413 specification conviction. Id. at ¶ 23, citing R.C. 4511.19(G)(1)(e)(i)

and 2929.13(G)(2).     The court found South’s five-year mandatory sentence for the

underlying OVI conviction was contrary to law because R.C. 2929.14(A)(3)(b) provides

that any additional prison term for an underlying third-degree-felony-OVI conviction

must be nine, twelve, eighteen, twenty-four, thirty, or 36 months. Id. at ¶ 24.

       {¶10} Subsequently, the court reinstated South’s mandatory three-year prison

sentence associated with his repeat-offender-specification conviction, and remanded the
matter to the trial court for resentencing on the underlying OVI conviction in accordance

with R.C. 2929.14(A)(3)(b). Id. at ¶ 27.

       {¶11} In applying South to the instant case, we agree with Rogers and the state that

Rogers’s sentence is contrary to law. See also State v. Mericsko, 8th Dist. Cuyahoga No.

102262, 2015-Ohio-4489 (where we applied South and found that defendant’s sentence

was contrary to law because defendant received a five-year mandatory term on the

repeat-offender OVI specification, R.C. 2941.1413, to be served prior to and consecutive

with a 120-day prison term for the underlying OVI conviction, but under R.C.

4511.19(G)(1)(e)(ii), the 120-day prison term was applicable only if defendant was not

convicted of the repeat offender specification.) Therefore, we vacate Rogers’s sentence

and remand the matter for resentencing Rogers to: (1) the mandatory 60-day consecutive

prison term, and (2) a discretionary prison term of nine, twelve, eighteen, twenty-four,

thirty, or thirty-six months.

       {¶12} Accordingly, the first assignment of error is sustained.

                                        Guilty Plea

       {¶13} In the second assignment of error, Rogers challenges the knowing and

voluntary nature of his guilty plea and argues that the trial court failed to ensure he

understood that he was not eligible for community control sanction.

       {¶14} “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,

1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea
was knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for

nonconstitutional issues, such as in the matter before us, is substantial compliance, and

strict compliance for constitutional issues. State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163

(1977). “Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is

waiving.” Nero at 109. In addition, when challenging his guilty plea based on the trial

court’s lack of substantial compliance, a defendant must also show a prejudicial effect —

that the plea would not have been otherwise entered but for the error. State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15.

      {¶15} Crim.R. 11(C)(2)(a) requires that the trial court determine that “the

defendant is making the plea * * * with understanding of the * * * maximum penalty

involved, and, if applicable, that the defendant is not eligible for probation or for the

imposition of community control sanctions at the sentencing hearing.”

      {¶16} With regard to Rogers’s eligibility for community control sanctions and his

mandatory prison sentence, the trial court advised Rogers of the following:

      COURT: Mr. Rogers, the charge of driving while under the influence as
      indicted in Count 1 is a felony of the third degree. As we’ve stated, under
      OVI laws this case is punishable by a prison term of 60 days up to five
      years. It also carries with it a possible fine anywhere from $1,350 to
      $10,500. It also requires a Class II driving suspension, which is anywhere
      from three months to life.

      ***
       COURT: Do you also understand that this count carries with it a forfeiture
       of the vehicle used?

       ROGERS: Yes, Your Honor.

       COURT: Okay. Do you each understand that if the Court grants
       community control sanctions, otherwise known as probation, you would
       have to comply with all the conditions set forth by this Court and the
       probation department, and failure to do so would result in the imposition of
       a prison term?

       ROGERS: Yes, Your Honor.

       ***

       COURT: Do you understand that if a prison term is imposed, you must
       serve the time as announced by the Court without any reduction in time for
       good behavior?

       ROGERS: Yes, ma’am.

       {¶17} Rogers contends that based on the foregoing, he could have readily believed

that he was eligible for community control sanctions when he was facing a mandatory

minimum of 60 days in prison. However, Rogers has not demonstrated, nor even argued,

that he would not have entered the guilty plea but for the perceived lack of advisement.

As this court has previously held “‘even if the [trial] court failed to substantially comply

with explaining the effects of his plea,’ the defendant still has to prove that he was

prejudiced by the court’s failure.” State v. Mannarino, 8th Dist. Cuyahoga No. 98727,

2013-Ohio-1795, ¶ 15, quoting State v. Simonoski, 8th Dist. Cuyahoga No. 98496,

2013-Ohio-1031. Here, Rogers has not demonstrated, nor argued, prejudice.
       {¶18} Moreover, the record demonstrates Rogers was aware that he was ineligible

for community control sanctions and was advised of the mandatory 60-day sentence right

before entering his guilty plea. We recognize that a defendant may learn of information

not relayed to him by the trial court but from other sources, such as his attorney. State v.

McCown, 8th Dist. Cuyahoga No. 69683, 1996 Ohio App. LEXIS 4801, *19 (Oct. 31,

1996). The record demonstrates that at the plea hearing the state advised Rogers of the

mandatory prison sentence: “[a]nd, Your Honor, I would also state on the record the

penalties for a third degree felony OVI. There is a bit of a conflict regarding the

sentencing. Under the OVI laws there’s a mandatory minimum of 60 days prison[.]”

Similarly, defense counsel informed the trial court that Rogers was aware of the

mandatory prison term he faced: “Judge, he knows he’s going to be remanded and he’s

prepared to go forward and withdraw his previously entered not guilty plea and he’ll be

entering a guilty plea as outlined[.] My client and I have had a number of discussions.

He is fully aware of what he’s pleading to and he is also aware of what the possible

sentence may be.” In addition, at no time during the proceedings did Rogers express

confusion or a lack of understanding regarding the nature of his plea.

       {¶19} Thus, the totality of the circumstances demonstrate that the trial court

substantially complied with Crim.R. 11 and Rogers’s plea was entered knowingly and

voluntarily.

       {¶20} Therefore, the second assignment of error is overruled.
      {¶21} Accordingly, Rogers’s conviction is affirmed, his sentence is vacated, and

the matter is remanded to the trial court for resentencing on his third-degree-felony-OVI

conviction.

      It is ordered that appellee and appellant share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.



      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
