[Cite as State v. Williams, 2017-Ohio-2650.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 104078 and 104849



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                            FRANKLYN M. WILLIAMS
                                                      DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                          Case Nos. CR-15-593764-A, CR-15-593844-A,
                             CR-15-593998-A, and CR-15-594806-A

        BEFORE:          Blackmon, J., Kilbane, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                     May 4, 2017
ATTORNEY FOR APPELLANT

Kathleen Amerkhanian
Kryszak & Associates Co., L.P.A.
5330 Meadow Lane Court, Suite A
Sheffield Village, Ohio 44035



ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Andrea N. Isabella
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA A. BLACKMON, J.:

       {¶1} In these consolidated appeals, Franklyn Williams (“Williams”) appeals from

his guilty pleas in four cases. Williams assigns the following errors for our review:

       I. [Williams’s] plea was not voluntary, knowing, or intelligent because he
       was given inaccurate information about judicial release and received
       ineffective assistance of counsel in violation of the Sixth Amendment of the
       U.S. Constitution relating to information conveyed regarding judicial
       release.

       II. [Williams] received ineffective assistance of counsel in violation of the
       Sixth Amendment of the U.S. Constitution which invalidated the knowing,
       intelligent, and voluntary nature of his plea, due to the failure of counsel to
       follow up on the motion to suppress statements that [Williams] made to
       police.

       III.   Trial court erred in not holding a hearing on [Williams’s]
       post-sentence motion to withdraw guilty plea.

       {¶2} Having reviewed the record and pertinent law, we reverse and remand for

further proceedings consistent with this opinion. The apposite facts follow.

       {¶3} On March 5, 2015, Williams was indicted in case no. CR-15-593764-A and

charged with aggravated robbery, robbery, kidnapping, and having a weapon while under

disability, all with one-year and three-year firearm specifications.        The aggravated

robbery, robbery and kidnapping charges also contained a notice of prior conviction and a

repeat violent offender specification.

       {¶4} On March 17, 2015, Williams was indicted in case no. CR-15-593844-A and

charged with aggravated robbery, robbery, kidnapping, theft, petty theft, and misuse of a
credit card.   The aggravated robbery, robbery, and kidnapping charges also contained

one-year and three-year firearm specifications, notice of prior conviction, and repeat

violent offender specifications.

       {¶5} On April 1, 2015, Williams was indicted in case no. CR-15-593998-A and

charged with aggravated robbery, theft, misuse of credit cards, petty theft, and having a

weapon while under disability.     The aggravated robbery charge contained one-year and

three-year firearm specifications, notice of prior conviction and repeat violent offender

specifications, and the theft charge contained one-year and three year firearm

specifications.

       {¶6} On April 14, 2015, Williams was indicted in case no. CR-15-594806-A and

charged with one count of willfully fleeing or eluding a police officer, with a furthermore

clause alleging that Williams caused a substantial risk of serious physical harm, and one

count of possession of less than the bulk amount of codeine, with a furthermore clause

alleging a prior robbery conviction.

       {¶7} The matters were consolidated for trial and proceeded to a jury trial on

January 4, 2016.     On the second day of trial, Williams entered into a plea agreement

with the state.    Under the terms of the plea, Williams pled guilty to: robbery with a

three-year firearm specification and having a weapon while under disability with a

three-year firearm specification in case no. CR-15-593764-A; robbery with a three-year

firearm specification, theft, and misuse of a credit card in case no. CR-15-593844-A;

robbery with a three-year firearm specification, theft, and having a weapon while under
disability in case no. CR-15-593998-A; and failure to comply in case no.

CR-15-594806-A.       All of the remaining charges and specifications were dismissed.

Williams and the state also agreed to a total sentence of fourteen years of imprisonment

for all four cases.   The agreed sentence included a mandatory term of seven years (for

the two three-year firearm specifications and the one-year term for failure to comply), to

be served consecutively to a seven- year term for the remaining offenses.

       {¶8} Williams now appeals and assigns three errors for our review.        The record

further discloses that after filing his notice of appeal, Williams filed a motion to withdraw

his guilty pleas in all four cases.

                              Crim.R. 11 and Judicial Release

       {¶9} Williams asserts that his guilty plea was not knowingly, voluntarily, and

intelligently made because his counsel provided him with erroneous advice regarding the

possibility of obtaining judicial release after serving seven years.    However, under R.C.

2929.20(C), Williams must actually serve all of the mandatory seven-year portion of his

term, then five additional years, before being eligible for judicial release.

       {¶10} With regard to the procedural law, we note that if a guilty plea is not made

knowingly, intelligently, and voluntarily, then it is unconstitutional under both the United

States Constitution and the Ohio Constitution. State v. Engle, 74 Ohio St.3d 525, 527,

1996-Ohio-179, 660 N.E.2d 450.         Under Crim.R. 11(C)(2), the trial court shall not

accept a guilty plea in a felony case without personally addressing the defendant and:

       (a) Determining 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.

       (b) Informing the defendant of and determining that the defendant
       understands the effect of the plea of guilty or no contest, and that the court,
       upon acceptance of the plea, may proceed with judgment and sentence.

       (c)    Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to a jury

       trial, to confront witnesses against him or her, to have compulsory process

       for obtaining witnesses in the defendant’s favor, and to require the state to

       prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

       defendant cannot be compelled to testify against himself or herself.

       {¶11} In determining whether a plea was entered knowingly, intelligently, and

voluntarily, “an appellate court examines the totality of the circumstances through a de

novo review of the record.”         State v. Spock, 8th Dist. Cuyahoga No. 99950,

2014-Ohio-606, ¶ 7; see also State v. Petitto, 8th Dist. Cuyahoga No. 95276,

2011-Ohio-2391, ¶ 4.

       {¶12} The trial court must strictly comply with those provisions of Crim.R. 11(C)

that relate to the waiver of constitutional rights.    State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Ballard, 66 Ohio St.2d 473, 423

N.E.2d 115 (1981), at paragraph one of the syllabus.

       {¶13} As to the nonconstitutional rights, substantial compliance is sufficient.

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31; State v.
Hedenberg, 8th Dist. Cuyahoga No. 102112, 2015-Ohio-4673, ¶ 12; Veney at ¶ 14.

“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.” Id., citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If

it “appears from the record that the defendant appreciated the effect of his plea and his

waiver of rights in spite of the trial court’s error, there is still substantial compliance.”

State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995), citing

Nero at 108-109.

       {¶14} The nonconstitutional rights listed in Crim.R. 11 include the defendant’s

right to be informed of the “maximum penalty involved, and, if applicable, that the

defendant is not eligible for probation or for the imposition of community control.”        In

 State v. Simmons, 1st Dist. Hamilton No. C-050817, 2006-Ohio-5760, the court held that

this right did not additionally include the right to be informed that the defendant is not

eligible for judicial release.    The Simmons court noted that “[j]udicial release, as with

the former concept of parole, is distinct from sentencing because it reduces a prison term

that a court has already imposed.        Therefore, the trial court need not inform a defendant

about his eligibility for judicial release unless it is incorporated into a plea bargain.” Id.

at ¶ 13.   In Simmons, the defendant asserted that his guilty plea was not knowingly and

voluntarily made because the trial court did not inform him that he was ineligible for

judicial release.   In rejecting this assertion, the Simmons court noted that Simmons

signed a written plea agreement acknowledging that he understood that he was ineligible
for any type of early release, the trial court specifically told Simmons that it would impose

the 20-year sentence to which the parties had agreed, and also told him that he would

have to serve that entire sentence except the time already served. Id. at ¶ 14.

       {¶15} However, it is well settled that a guilty plea may be invalidated where the

defendant is given misinformation regarding judicial release. State v. Ealom, 8th Dist.

Cuyahoga No. 91455, 2009-Ohio-1365, citing State v. Bush, 3d Dist. Union No.

14-2000-44, 2002-Ohio-6146; State v. Horch, 154 Ohio App.3d 537, 2003-Ohio-5135,

797 N.E.2d 1051 (3d Dist.); State v. Florence, 3d Dist. Allen                 No. 1-03-60,

2004-Ohio-1956. The Ealom court held that “if a defendant is induced to enter a guilty

plea by erroneous representations as to the applicable law, the plea has not been entered

knowingly and intelligently, but the defendant must demonstrate prejudice resulting from

the erroneous representation, i.e., that but for erroneous information, the plea would not

have been made.” Id. at ¶ 19; State v. Mitchell, 11th Dist. Trumbull No. 2004-T-0139,

2006-Ohio-618, ¶ 15.      Therefore, although the trial court is not required to inform

defendant that he is ineligible for judicial release, the court’s statements will be reviewed

in order to determine whether the plea was knowing, voluntary, and intelligently made.

State v. Silvers, 181 Ohio App.3d 26, 2009-Ohio-687, 907 N.E.2d 805 (2d Dist.); State v.

Byrd, 178 Ohio App.3d 646, 2008-Ohio-5515, 899 N.E.2d 1033 (2d Dist.). The Byrd

court explained:

       [T]hough the mandatory sentence likewise renders the defendant ineligible
       for judicial release during his prison term, R.C. 2929.20(A), the court is not
       required by Crim.R. 11(C)(2)(a) to determine the defendant’s understanding
       of that fact, absent some misstatement or misrepresentation that causes the
       determination to be “applicable” in order to insure that the defendant’s plea
       of guilty or no contest is knowing, intelligent, and voluntary.

Id. at ¶ 28.

       {¶16} In determining whether Williams was given erroneous information in this

matter, we note that judicial release is governed by R.C. 2929.20(C), which states in

relevant part:

       (C) An eligible offender may file a motion for judicial release with the
       sentencing court within the following applicable periods:

       (1) If the aggregated nonmandatory prison term or terms is less than two
       years, the eligible offender may file the motion not earlier than thirty days
       after the offender is delivered to a state correctional institution or, if the
       prison term includes a mandatory prison term or terms, not earlier than
       thirty days after the expiration of all mandatory prison terms.

       (2) If the aggregated nonmandatory prison term or terms is at least two
       years but less than five years, the eligible offender may file the motion not
       earlier than one hundred eighty days after the offender is delivered to a state
       correctional institution or, if the prison term includes a mandatory prison
       term or terms, not earlier than one hundred eighty days after the expiration
       of all mandatory prison terms.

       (3) If the aggregated nonmandatory prison term or terms is five years, the
       eligible offender may file the motion not earlier than the date on which the
       eligible offender has served four years of the offender’s stated prison term
       or, if the prison term includes a mandatory prison term or terms, not earlier
       than four years after the expiration of all mandatory prison terms.

       (4) If the aggregated nonmandatory prison term or terms is more than five
       years but not more than ten years, the eligible offender may file the motion
       not earlier than the date on which the eligible offender has served five years
       of the offender’s stated prison term or, if the prison term includes a
       mandatory prison term or terms, not earlier than five years after the
       expiration of all mandatory prison terms.
       (5)   If the aggregated nonmandatory prison term or terms is more than ten

       years, the eligible offender may file the motion not earlier than the later of

       the date on which the offender has served one-half of the offender’s stated

       prison term or the date specified in division (C)(4) of this section.

(Emphasis added.)

       {¶17} In State v. Cvijetinovic, 8th Dist. Cuyahoga No. 81534, 2003-Ohio-563, this

court considered the validity of Cvijetinovic’s guilty plea where the trial court

erroneously informed him that he “may” be eligible for judicial release after serving five

years of the sentence, but he was actually sentenced to a non-probationable offense. Id.

at ¶ 4. This court determined that the trial court substantially complied with Crim.R.

11 and also observed that Cvijetinovic and a codefendant were sentenced together so it

was unclear that the trial court misstated the law as it applied to Cvijetinovic.         Id.

Assuming erroneous information had been given to Cvijetinovic, the trial court’s use of

the word “may” “connotes uncertainty rather than certainty” regarding the likelihood of

judicial release. Id. This court additionally noted that a more compelling argument

would have been presented had Cvijetinovic immediately asked for clarification or

withdrawal of the guilty plea.   Id. at ¶ 4-7.

       {¶18} Conversely, in Ealom, this court considered the validity of Ealom’s guilty

plea where he was not eligible for judicial release, but the trial court erroneously

informed him that “the first time you can become eligible for judicial release would be a

minimum of three and a half years.” Id. at ¶ 25.      In determining that the guilty plea was
not voluntarily, intelligently, and knowingly made, this court noted that Ealom had mental

health issues, asked for clarification about judicial release and the trial “court’s response

led Ealom to believe that he would be eligible for judicial release.” Id. at ¶ 27.

        {¶19} Similarly, in State v. Horch, 154 Ohio App. 3d 537, 2003- Ohio-5135, 797

N.E.2d 1051 (3d Dist.), the court concluded that Horch’s guilty plea was not knowingly

and intelligently made because she was erroneously informed that        she would be eligible

for judicial release after 180 days, but she was actually not eligible until serving four

years of her sentence.     Accord State v. Sherman, 5th Dist. Richard No. 2009-CA-132,

2010-Ohio-3959 (guilty plea was invalid where the trial court erroneously informed the

defendant that he was eligible for judicial release when he was not, and filing of the

motion for judicial release was an inducement to the guilty plea); State v. Hendrix, 12th

Dist. Butler No. CA2012-12-265, 2013-Ohio-4978 (guilty plea was invalid where

Hendrix was informed that he could potentially obtain judicial release, but he was

ineligible for it).

        {¶20} In this case, the transcript of the plea proceedings states:

        At the break, Mr. Williams did ask the Court a question, which I want to
        memorialize on the record, which is would I consider a judicial release after
        seven or eight years. So, Mr. Williams, you should know that it’s typically
        not my policy to grant a judicial release. You can always file a judicial
        release motion and they are considered. I consider them regularly.
        Whether I grant it or not, I can’t make any promises right now. So there’s
        lots of programs that go into what you’re thinking about. There is a
        program called Reentry Court, for example. There is a program for people
        who have served a portion — a large portion of their sentence that go into
        transitional control services. So there are a lot of different options for you,
        but it’s really up to you and what you do. So I’m not going to promise you
      anything on the record and I never do to defendants. I mean, of course, you
      can file a motion. Whether I grant it or not, I would not be able to answer.

      THE DEFENDANT: I don’t want to ask you to grant my motion, just to
      consider it. That’s all. Can I send it to you?

      THE COURT: Absolutely, I would consider it.

      [DEFENSE COUNSEL:] And for the record, your Honor, in talking to
      not only my client, but his mom, I explained that even I wouldn’t guarantee
      the outcome of a motion for judicial release because half of, if not most of
      the consideration, deals with the change he makes in his life over the next
      eight years. We can’t predict that.      ***

(Tr. 211-212.)   The record further indicates that following that exchange, the court had

the following discussion with the attorneys and outside Williams’s presence:

      [DEFENSE COUNSEL]: You have to make a phone call and see if you
      can drop those specs. I’m not saying he’s going to get out, but the only
      way he’s going to plead to 14 [years] is the vision of sugar plums to allow
      him to think he’s doing possibly seven, so years don’t change.

      (Thereupon, a recess was taken.)

      THE COURT: Let’s go back on the record at this time. We’ve taken a
      short break. [Defense counsel] very wisely pointed out that the RVO and
      the NPC specification on the counts made some changes which would not
      allow for Mr. Williams to have the possibility of filing a potential judicial
      release motion, and so the prosecutors are dismissing the notice of prior
      conviction and the repeat violent offender specification. However, we still
      have a number of 14 [years] flat with the credit for the time being served
      and a waiver of costs and fines as the potential sentence here or is the
      sentence here today. Mr. Williams, are you okay?

      THE DEFENDANT:          Yeah.

      THE COURT: I have to sentence you to mandatory time on the failing to
      comply and two of the respective gun specifications. Do you understand?

      THE DEFENDANT: Yes, your Honor.
       THE COURT: Okay. And then after that, I give you the sentence for the
       other — the base charge, so the robbery or the having a weapon while under
       disability. Do you have any questions about that?

       THE DEFENDANT: No, your Honor.

       THE COURT: And, you know, I’m going to get this number and I’m
       going to bring it to 14 [years], which is the agreed upon number here. Do
       you understand?

       THE DEFENDANT: Yes.

       {¶21} This record demonstrates that Williams seemed quite concerned about the

possibility of obtaining judicial release. He stopped the plea proceedings in order to ask

the court about judicial release.    The court and the attorneys responded to those inquiries

by informing Williams that the motion could be considered after seven or eight years, but

under R.C. 2929.20(C)(4), Williams is not eligible for judicial release until five years

after he has served all of his mandatory sentence, which was 12 years.     Clearly, Williams

was misinformed as to when he would be eligible for judicial release.        The record also

indicates that after filing his notice of appeal, Williams filed a motion to withdraw his

guilty pleas in all four cases.

       {¶22} Consequently, we are unable to conclude that the trial court substantially

complied with its duty to inform Williams of “the maximum penalty involved” because

Williams received inaccurate information that erroneously led him to believe that he was

eligible for judicial release after seven or eight years, when in fact he would not have

been eligible until 12 years.     Moreover, the record clearly demonstrates that but for this

erroneous information, Williams would not have entered the guilty plea because his trial
was already underway when the plea discussion occurred.           Williams’s guilty plea was

not knowingly, intelligently, and voluntarily made, and he suffered prejudice from the

erroneous information regarding judicial release.      This case is in line with Ealom.

       {¶23} The first assigned error is well-taken.

       {¶24} In light of our disposition of Williams’s first assigned error, the two

remaining errors that Williams assigns are now moot and will not be addressed.            See

App.R. 12(A)(1)(c).

       {¶25} Judgment is reversed and remanded.

       It is ordered that appellant recover of appellee 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.




PATRICIA A. BLACKMON, JUDGE

MARY EILEEN KILBANE, P.J., and
ANITA LASTER MAYS, J., CONCUR
