[Cite as State v. Mackey, 2013-Ohio-4698.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99390




                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                      RYAN MACKEY
                                                   DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART
                            AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-560185

        BEFORE: Keough, J., Stewart, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 24, 2013
ATTORNEYS FOR APPELLANT

Donald Gallick
The Law Office of Donald Gallick, L.L.C.
190 North Union Street, #102
Akron, Ohio 44304

Ashley L. Jones
75 Public Square
Suite 714
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: William Leland
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Ryan Mackey, appeals from the trial court’s judgment,

rendered after a guilty plea, finding him guilty of multiple counts of drug trafficking and

sentencing him to a total of three years incarceration and $15,000 in fines.

                                         I. Background

       {¶2} Mackey and four codefendants were charged with multiple counts of drug

trafficking, drug possession, and possession of criminal tools. Mackey eventually pled

guilty to Count 1, drug trafficking in violation of R.C. 2925.03(A)(1), a fifth-degree

felony; Counts 3, 6, 12, and 15, drug trafficking in violation of R.C. 2925.03(A)(1),

third-degree felonies; and Count 9, drug trafficking with a schoolyard specification in

violation of R.C. 2925.03(A)(1) and 2925.01(P), a second-degree felony. Each count

included forfeiture specifications. The remaining counts were dismissed.

       {¶3} The trial court1 subsequently sentenced Mackey to six months incarceration

on Count 1; twenty-four months each on Counts 3, 6, 12, and 15; and three years each on

Counts 9 and 18.2 The court ordered the sentences to be served concurrently. The court

also sentenced Mackey to mandatory minimum fines of $7,500 on Counts 9 and 18, for a

total of $15,000 in fines.


        One judge took the plea; another judge sentenced Mackey.
       1




       2
         Although the trial court sentenced Mackey on Count 18, drug trafficking in violation of
R.C. 2925.03(A)(1), a second-degree felony, the transcript of the plea colloquy reflects that the
trial court, apparently inadvertently, did not ask Mackey for a plea on this count and thus no valid
guilty plea was entered on Count 18.
                                       II. Analysis

       {¶4} Mackey argues that the trial court did not comply with Crim.R. 11 when

accepting his guilty pleas and, therefore, that his pleas should be vacated. Specifically,

in his first assignment of error, he argues that the trial court did not advise him of the

mandatory minimum fine relating to Counts 9 and 18. In his second assignment of error,

he asserts that the multi-defendant plea hearing, at which the judge took pleas from

Mackey and three codefendants, each with his own attorney, did not provide for a

“meaningful dialogue” between him and the court sufficient to comply with Crim.R. 11.

Mackey’s arguments are without merit.

       {¶5} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony matter, a

trial court must personally address the defendant and (1) determine that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges, and the

maximum penalty; (2) inform the defendant of and determine that the defendant

understands the effect of the plea, and that the court may proceed with judgment after

accepting the plea; and (3) inform the defendant and determine that the defendant

understands that he is waiving his constitutional rights to a jury trial, to confront the

witnesses against him, to call witnesses in his favor, and to require the state to prove his

guilt beyond a reasonable doubt at a trial where the defendant cannot be forced to testify

against himself.

       {¶6} A trial court must strictly comply with the dictates of Crim.R. 11(C)(2)

regarding the waiver of constitutional rights, meaning the court must actually 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, ¶ 27.   With respect to the other requirements of Crim.R. 11(C)(2) regarding

nonconstitutional rights, reviewing courts consider whether the trial court substantially

complied with Crim.R. 11(C)(2). Substantial compliance means that under the totality of

the circumstances, the defendant subjectively understood the implications of his plea and

the rights he was waiving. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990).

      {¶7} Mackey contends that the trial court never advised him at the plea colloquy

of the mandatory fine, and that the judge only mentioned the fine in passing when she

asked another defendant about his plea on a second-degree felony drug trafficking count,

and the prosecutor interjected that “I was going to indicate to the court as relates to

defendant Comb and defendant Mackey, those felonies of the second degree carry a

mandatory minimum fine of $7,500, half of the $15,000.” The judge asked Comb if he

understood and then stated, “It’s a mandatory $7,500 fine on Mr. Mackey, right?”

Mackey contends      that the judge never personally informed him of the potential

mandatory fine.

      {¶8} The record, however, reflects that when the trial judge was explaining the

possible penalties for each count to Mackey, she specifically told him that Count 9 was

punishable by “anywhere from two to eight years in prison and a fine of up to $15,000.”

When the judge asked Mackey if he understood, Mackey responded affirmatively.
Similarly, with respect to Count 18, the trial judge told Mackey that Count 18 “carries a

mandatory term of imprisonment of anywhere from two to eight years and a fine of up to

$15,000.”    When asked if he understood, Mackey responded, “I understand, your

Honor.” Thus, although the judge did not tell Mackey that the mandatory minimum fine

on each count was $7,500, she advised him, as required by Crim.R. 11(C)(2)(a), of “the

maximum penalty involved” on each count. Although it may have been preferable for

the judge to have advised Mackey of the mandatory minimum fine, nothing in Crim.R. 11

requires the trial court to advise the defendant of the minimum sentence. State v. Miller,

10th Dist. Franklin No. 96APA11-1615, 1997 Ohio App. LEXIS 2858 (June 30, 1997).

In light of Mackey’s statements that he understood the trial court’s explanation of the

maximum possible penalties associated with each count, we find substantial compliance.

        {¶9} Moreover, a defendant must show prejudice before a plea will be vacated

for a trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects

of the colloquy are at issue. Veney at ¶ 14-17. The test for prejudice is whether the plea

would have otherwise been made. Id. at ¶ 15.

        {¶10} Mackey does not assert that he would not have pled guilty if the trial court

had told him the mandatory minimum fine was $7,500. Instead, he argues that because

the trial court allegedly did not explain the mandatory fine during the plea colloquy, he

was not able to file an affidavit of indigency prior to sentencing to seek a waiver of the

fine.
       {¶11} In State v. Gipson, 80 Ohio St.3d 626, 1998-Ohio-659, 687 N.E.2d 750,

the Ohio Supreme Court found that

       R.C. 2929.18(B)(1) clearly requires that a sentencing court shall impose a
       mandatory fine upon an offender unless (1) the offender alleges in an
       affidavit filed with the court prior to sentencing that the offender is indigent
       and unable to pay the mandatory fine, and (2) the court determines that the
       offender is in fact an indigent person and is unable to pay the mandatory
       fine.

Id. at 631.

       {¶12}    The Gipson court further found that although the phrase “prior to

sentencing” suggests that a defendant must file his affidavit prior to the sentencing

hearing to invoke the statutory procedure for avoiding the mandatory fine, an affidavit of

indigency may be properly filed with the clerk of court and time-stamped at any time

prior to the filing of the trial court’s journal entry reflecting the sentencing decision. Id.,

paragraph one of the syllabus; see also State v. Shepard, 8th Dist. Cuyahoga No. 95433,

2011-Ohio-2525, ¶ 8, citing Gipson. Thus, Mackey could have filed an affidavit of

indigency after sentencing but prior to entry of the trial court’s sentencing judgment.

       {¶13} Mackey has not demonstrated that he was prejudiced by the trial court’s

explanation of the fines, and has not presented any evidence nor made any argument that

he would not have entered his plea if the trial court had explained that there was a

mandatory minimum fine of $7,500 on Counts 9 and 18. In fact, neither Mackey nor his

counsel raised any objection at the plea colloquy or sentencing to the imposition of the

fines. Without any evidence that the plea would not have otherwise been made, Mackey
has not met his burden of showing prejudice that would necessitate vacating his plea.

State v. Allen, 8th Dist. Cuyahoga No. 93488, 2010-Ohio-3718, ¶ 11.

      {¶14} With respect to Mackey’s assertion that the multi-defendant plea colloquy in

this case violated Crim.R. 11 because it did not provide an opportunity for a meaningful

dialogue between him and the trial court, we note that multi-defendant plea colloquies are

rife with opportunity for error. Nevertheless, our review of the record demonstrates that

prior to accepting a plea from Mackey and the other defendants, the trial court carefully

ensured that each defendant understood the constitutional rights he or she was waiving, as

well as the charges against him or her and the possible penalties associated with the

charges, and that each defendant was making the plea voluntarily. Specifically with

regard to Mackey, we find nothing that would indicate that his plea was not made

knowingly, voluntarily, and intelligently. The first and second assignments of error are

therefore overruled.

      {¶15} We must reverse the trial court’s sentencing judgment with respect to

Count 18, however, because the record reflects that the trial judge never took a plea from

Mackey on this count. Accordingly, the judgment is affirmed in part, reversed in part,

and remanded for a plea hearing on Count 18.

      {¶16} Affirmed in part; reversed in part and remanded.

      It is ordered that the parties share equally 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.

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

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
MELODY J. STEWART, A.J., CONCURS IN JUDGMENT ONLY
