[Cite as State v. Wyatt, 2017-Ohio-8319.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105332




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   PAUL A. WYATT, III
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                               Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
            Case Nos. CR-15-597560-A, CR-16-604654-A, and CR-16-609331-A

        BEFORE: E.T. Gallagher, P.J., Boyle, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: October 26, 2017
ATTORNEY FOR APPELLANT

Sarah R. Cofta
P.O. Box 16425
Cleveland, Ohio 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Ashley B. Kilbane
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:

      {¶1} Defendant-appellant, Paul A. Wyatt, III, appeals his convictions and raises

the following sole assignment of error:

      The trial court failed to comply with Crim.R. 11(C)(2), to the prejudice of
      appellant, who did not knowingly, intelligently, and voluntarily enter into
      his guilty plea for aggravated robbery.

      {¶2} We find no merit to the appeal and affirm the trial court’s judgment.

                           I. Facts and Procedural History

      {¶3} Wyatt was charged with one count of grant theft, with a one-year firearm

specification, in Cuyahoga C.P. No. CR-15-597560-A. The trial court granted Wyatt

entry into a pretrial diversion program, and he almost immediately violated the

community control sanctions related to the program. The court gave Wyatt a second

chance and allowed him to start over in the diversion program. However, a month later,

the Cuyahoga County Grand Jury returned a new indictment in Cuyahoga C.P. No.

CR-16-604654-A, charging Wyatt with two counts of robbery, one count of theft, and one

count of kidnapping. Wyatt pleaded guilty to the theft charge and to an amended count

of aggravated theft. The other two counts were nolled. Wyatt’s convictions made him

ineligible for the diversion program, and the court now had to sentence Wyatt in both

Case Nos. C.P. CR-16-604654-A and CR-15-597560-A.

      {¶4} Before Wyatt was sentenced, the Cuyahoga County Grand Jury returned yet

another indictment against Wyatt in Case No. CR-16-609331-A. The new indictment

charged Wyatt with one count each of aggravated robbery, robbery, kidnapping, and
carrying a concealed weapon.       The charges included one- and three-year firearm

specifications, and the carrying a concealed weapon charge included a forfeiture

specification. Pursuant to a plea bargain, Wyatt agreed to plead guilty to one count of

aggravated robbery, with a one-year firearm specification, and one count of carrying a

concealed weapon, with the forfeiture specification. The state agreed that the remaining

counts would be nolled.

      {¶5} A substitute judge rather than the assigned judge accepted Wyatt’s guilty

pleas in Case No. CR-16-609331-A. During the plea colloquy, Wyatt asked if he could

return home to be with his family until sentencing. The substitute judge advised Wyatt

that the assigned judge would have to make that decision and asked Wyatt’s trial counsel

if he had any “problems” with the substitute judge taking the plea on behalf of the

assigned judge.   Counsel replied, “No, your Honor.       We thank you for doing so.”

(Tr. 74.) Wyatt subsequently pleaded guilty to all three charges.

      {¶6} The court sentenced Wyatt on all three cases at a single sentencing hearing.

In Case No. CR-15-597560-A, the court sentenced Wyatt to 12 months in prison, to be

served concurrently with the sentences in the other two cases.            In Case No.

CR-16-604654-A, the court sentenced Wyatt to 180 days in the county jail to be served

concurrently with the other two cases. And in Case No. CR-16-609331-A, the court

sentenced Wyatt to an aggregate five-year prison term on all the charges, including the

one-year firearm specification, to be served concurrently with the sentences in the other

two cases. The court imposed costs and expenses for all three cases and gave Wyatt 75
days of jail-time credit.        Wyatt now appeals his convictions in Case No.

CR-16-609331-A.

                                  II. Law and Analysis

       {¶7} In the sole assignment of error, Wyatt argues he did not knowingly,

intelligently, or voluntarily enter his guilty pleas in Case No. CR-609331-A because the

trial court failed to specifically inform him that he was subject to a mandatory, minimum

four-year prison term.

      {¶8} Guilty pleas are governed by Crim.R. 11. As relevant here, Crim.R.
11(C)(2)(a) provides that, before a trial court may accept a guilty plea, the court must first
address the defendant personally and determine:

       that the defendant is making the plea voluntarily, with understanding of the
       nature of the charges and 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.

Under Crim.R. 11(C)(2)(a), the trial court must make sure that, before a defendant pleads

guilty to a felony, he or she understands (1) the nature of the charges; (2) the maximum

penalty involved, and, if applicable; (3) that the defendant is not eligible for community

control sanctions, i.e., prison is mandatory.

       {¶9} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements

regarding the waiver of constitutional rights, which means that the court must inform the

defendant of the constitutional rights he is waiving and make sure the defendant

understands them.     State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 18. For nonconstitutional rights, such as the right to be informed of the maximum

penalty involved and the mandatory nature of a prison sentence, substantial compliance
with the rule is usually sufficient. Id. at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86,

92, 364 N.E.2d 1163 (1977).

       {¶10} “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.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing Stewart

at 92-93. “[A] slight deviation from the text of the rule is permissible; so long as the

totality of the circumstances indicates that ‘the defendant subjectively understands the

implications of his plea and the rights he is waiving.’” State v. Clark, 119 Ohio St.3d

239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting Nero at 108.

       {¶11} If an appellate court finds that a trial court did not substantially comply with

a requirement of Crim.R. 11(C)(2)(a), which governs the advisement of nonconstitutional

rights, the appellate court must make a further determination as to whether the trial court

“partially complied” or “completely failed” to comply with the requirement. Clark at ¶

32.   If the trial court partially complied, the plea may be vacated only if the defendant

demonstrates a prejudicial effect, i.e., “‘whether the plea would have otherwise been

made.’” Id., quoting Nero at 108.       If, however, the trial court completely failed to

comply, the plea must be vacated because “‘[a] complete failure to comply with the rule

does not implicate an analysis of prejudice.’” Id., quoting State v. Sarkozy, 117 Ohio

St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

       {¶12} Before Wyatt entered his guilty pleas, the substitute judge asked him if he

had any questions regarding the case or any aspects of the plea hearing.        In response,
Wyatt asked: “Due to me copping out to a year, can I make arrangements for my family?”

 Wyatt asserts the phrase “copping out to a year” proves he mistakenly believed he was

only going to be sentenced to one year in prison, and that he did not understand that he

faced a mandatory, minimum four-year sentence by virtue of his guilty pleas in Case No.

CR-16-609331-A.      He relies on State v. Tutt, 8th Dist. Cuyahoga No. 102687,

2015-Ohio-5145, to support his argument.

      {¶13} In Tutt, we held that

      where a defendant faces a mandatory prison sentence as a result of a guilty
      or no contest plea, the trial court must determine, prior to accepting a plea,
      that the defendant understands that he or she is subject to a mandatory
      prison sentence and that as a result of the mandatory prison sentence, he or
      she is not eligible for probation or community control sanctions.

Id. at ¶ 19.   A trial court may meet this requirement by (1) expressly informing the

defendant that he or she is subject to a mandatory prison sentence and therefore does not

qualify for community control sanctions, or (2) confirming the defendant’s subjective

understanding of the mandatory nature of the prison term from the totality of the

circumstances.     Id., citing State v. Smith, 8th Dist. Cuyahoga No. 83395,

2004-Ohio-1796; State v. McLaughlin, 8th Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶

19.

      {¶14} In McLaughlin, we held that “the trial court need not specifically inform the

defendant he is ‘ineligible for probation’ if the totality of the circumstances warrant the

trial court in making a determination the defendant understands the offense is

‘nonprobational.’” Id. at ¶ 19, citing Nero, 56 Ohio St.3d 106, 564 N.E.2d 474.
       {¶15} We vacated Tutt’s no contest pleas because although the trial court properly

advised Tutt of the maximum potential penalties he could receive, it failed to expressly

state that prison was mandatory, and the totality of the circumstances failed to

demonstrate that Tutt subjectively understood that prison was mandatory. Id. at ¶ 26.

Indeed, the trial court misled Tutt into believing that prison terms on the base offenses

were optional because it advised him that on his two first-degree felonies he could be

sentenced to “anywhere from 3 to 11 years in prison * * * and/or a fine up to $20,000.”

Tutt at ¶ 7. (Emphasis added.) This instruction erroneously suggested that Tutt could

receive either a prison term, a fine, or both.   Therefore, we found because the trial court

failed to mention the mandatory nature of the prison terms, the trial court “wholly failed”

to comply with Crim.R. 11(C)(2)(a) before accepting Tutt’s no contest pleas, and Tutt

was not required to demonstrate prejudice in order to have his no contest pleas vacated.

Id. at ¶ 29-31.

       {¶16} At the plea hearing in this case, the trial court explained to Wyatt the

applicable sentencing ranges on the base counts in addition to the prison term on the

attendant firearm specification, as follows:

       THE COURT: Count 1 has been amended by deletion of the three-year
       firearm specification. Count 1 is a felony of the first degree. That’s
       punishable by 3 up to 11 years in prison. That’s in yearly increments.

       There is also a one-year firearm specification that has to be served in
       addition to and before the sentence of 3 to 11 years on the felony 1. There
       is also the potential of a $20,000 fine. Count 4 is a felony of the fourth
       degree, punishable by 6 to 18 months in prison and a possible $5,000 fine.

       *    *     *
       Do you understand those penalties?

       THE DEFENDANT: Can you repeat that, please[?]

       THE COURT: Okay. Count 1 is aggravated robbery, a felony of the first
       degree. Felonies of the first degree are punishable by 3, 4, 5, 6, 7, 8, 9, 10
       or 11 years in prison. The judge picks one. There is also a one-year
       firearm specification.

       Because of the one-year firearm specification, that adds an additional year
       to the base crime of aggravated robbery. Count 4, CCW, is felony of the
       fourth degree. That’s punishable by 6 to 18 months prison and a possible
       $5,000 fine.

       Do you understand that so far?

       THE DEFENDANT: Yes.

(Tr. 70-71.)

       {¶17} The trial court did not expressly use the word “mandatory,” or state that

Wyatt was ineligible for community control sanctions. However, in contrast to the

circumstances involved in Tutt, Wyatt requested clarification of the possible sentences he

could receive, and the court explained that the one-year sentence on the firearm

specification would be served in addition to the possible range of prison terms applicable

to the aggravated robbery offense.

       {¶18} Further, Wyatt’s “copping out to a year” language does not mean that Wyatt

believed he would serve a maximum of one year in prison.                Wyatt indicated he

understood that he would have to serve at least one year in prison on the firearm

specification in addition to whatever sentence the court were to select from the range of

sentences applicable to first-degree felonies.   The court explained that the shortest prison
term in the sentencing range on the aggravated robbery offense was three years.      Wyatt

indicated that he understood these penalties after the court explained them to him twice.

       {¶19} Although the court could have made it more clear that Wyatt had to serve a

mandatory minimum of four years in prison, the totality of the circumstances

demonstrated that Wyatt understood the mandatory nature of the prison sentence.

Therefore, the trial court substantially complied with the requirements of Crim.R.

11(C)(2)(a), and Wyatt has not demonstrated that he was prejudiced by the court’s failure

to use the magic words “mandatory” or “ineligible for community control.”

       {¶20} The sole assignment of error is overruled.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover from appellant 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. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.




EILEEN T. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR
