[Cite as State v. Smith, 2014-Ohio-2990.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
ROY G. SMITH                                 :       Case No. 13-CA-44
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 12 CR 00142




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    July 2, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TRACY F. VAN WINKLE                                  WILLIAM T. CRAMER
20 South Second Street                               470 Olde Worthington Road
4th Floor                                            Suite 200
Newark, OH 43055                                     Westerville, OH 43082
Licking County, Case No. 13-CA-44                                                         2

Farmer, J.

       {¶1}   On March 16, 2012, the Licking County Grand Jury indicted appellant, Roy

Smith, on four counts of rape in violation of R.C. 2907.02(A)(1)(b) as the victim was less

than thirteen years of age. On August 9, 2012, appellant pled no contest to four counts

of forcible rape in violation of R.C. 2907.02(A)(2). The trial court found appellant guilty.

By judgment entry filed August 9, 2012, the trial court sentenced appellant to an

aggregate term of fourteen years in prison.

       {¶2}   Appellant filed a motion for leave to file a delayed appeal which was

granted, and this matter is now before this court for consideration. Assignments of error

are as follows:

                                              I

       {¶3}   "THE TRIAL COURT VIOLATED R.C. 2929.19(B)(2)(a) BY FAILING TO

NOTIFY APPELLANT DURING THE SENTENCING HEARING THAT THE PRISON

TERMS WERE MANDATORY."

                                              II

       {¶4}   "THE TRIAL COURT VIOLATED APPELLANT'S STATE AND FEDERAL

CONSTITUTIONAL RIGHTS, AND CRIM.R. 11(C)(2)(a), BY FAILING TO ENSURE

THAT APPELLANT UNDERSTOOD THAT HIS ENTIRE SENTENCE WOULD BE

MANDATORY WHEN HE ENTERED A NO-CONTEST PLEA."

                                            I, II

       {¶5}   Appellant claims the trial court failed to notify him that the prison terms

were mandatory and as a result, his plea was not made knowingly, intelligently, and

voluntarily. We agree.
Licking County, Case No. 13-CA-44                                                       3


       {¶6}   Crim.R. 11 governs the process of entering a plea.          Subsection (C)

provides the following in pertinent part:



              (2) In felony cases the court may refuse to accept a plea of guilty or

       a plea of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the

       following:

              (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.



       {¶7}   In accepting a no contest plea, a trial court must substantially comply with

Crim.R. 11. State v. Nero, 56 Ohio St.3d 106 (1990). Under substantial compliance, a

"slight deviation" 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, ¶ 31, quoting

Nero, supra, at 108. Substantial compliance with Crim.R. 11(C) is determined upon a

review of the totality of the circumstances. State v. Carter, 60 Ohio St.2d 34 (1979). In

State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12, the Supreme Court of Ohio

explained the following:
Licking County, Case No. 13-CA-44                                                       4


              The right to be informed that a guilty plea is a complete admission

       of guilt is nonconstitutional and therefore is subject to review under a

       standard of substantial compliance. State v. Nero, 56 Ohio St.3d at 107,

       564 N.E.2d 474. Though failure to adequately inform a defendant of his

       constitutional rights would invalidate a guilty plea under a presumption that

       it was entered involuntarily and unknowingly, failure to comply with

       nonconstitutional rights will not invalidate a plea unless the defendant

       thereby suffered prejudice.     Id. at 108, 564 N.E.2d 474.      The test for

       prejudice is "whether the plea would have otherwise been made." Id.



       {¶8}   R.C. 2929.19 governs sentencing hearings. Subsection (B)(2)(a) states:

"Subject to division (B)(3) of this section, if the sentencing court determines at the

sentencing hearing that a prison term is necessary or required, the court

shall***[i]mpose a stated prison term and, if the court imposes a mandatory prison term,

notify the offender that the prison term is a mandatory prison term."

       {¶9}   During the Crim.R. 11 colloquy, the following exchange occurred between

the trial court and appellant (T. at 12-14):



              Q. Do you understand, Mr. Smith, that should the Court permit you

       to change your pleas and should the Court then enter guilty findings,

       generally all that would remain to be done is to proceed with sentencing;

       and the maximum sentence for these four counts, as amended, would

       consist of a term of 40 years in the state penitentiary, an $80,000 fine, five
Licking County, Case No. 13-CA-44                                                     5


      years of mandatory post-release control, and classification as a Tier III

      sexual offender, which I believe would require your registration for the rest

      of your life for every 90 days? Do you understand that?

            A. Yes, sir.

            Q. Do you understand that's the maximum possible penalty you

      could receive in this case?

            A. Yes, sir.

            Q. Do you understand that's the maximum amount of time you

      could be required to serve at a state penitentiary without any type of credit

      for good behavior?

            A. Yes, sir.

            Q. Do you understand, Mr. Smith, that if you were to be sentenced

      to the penitentiary, released early pursuant to judicial release and placed

      on community control, that if you were to violate the terms of community

      control you'd be subject to being returned to the penitentiary for the

      balance of your sentence?

            A. Yes, sir.

            Q. Do you understand that this offense carries a term of mandatory

      incarceration, as a result of which, both, you're not eligible for judicial

      release during any mandatory period of incarceration and you could not be

      sentenced to community control directly? Do you understand that?

            A. Yes, sir.
Licking County, Case No. 13-CA-44                                                        6


       {¶10} In the plea form filed August 9, 2012, it states: "I understand the

MAXIMUM sentence is a basic prison term of 40 years of which 3 yrs is mandatory. I

am not eligible for judicial release during the mandatory imprisonment."          Also, "I

understand that based on this charge I am not eligible for community control or judicial

release. If I am eligible for it and am sentenced to community control and if I violate any

of the conditions imposed, I can be given a longer period under court control, greater

restrictions or a prison term of 5 years."

       {¶11} While the trial court informed appellant that "this offense carries a term of

mandatory incarceration," the trial court did not notify appellant of the number of years

that were mandatory. Pursuant to the plea form, appellant was informed that only three

years of the potential forty year sentence were mandatory, thereby precluding judicial

release during those three years. However, all fourteen years of appellant's sentence

are mandatory. R.C. 2929.13(F)(2). Moreover, the notifications as to judicial release

and community control were confusing. While the plea form indicated appellant was not

eligible for either, the form goes on to explain the consequences for violating community

control "[i]f I am eligible for it and am sentenced to community control." During the plea

colloquy, the trial court informed appellant that "if you were to be sentenced to the

penitentiary, released early pursuant to judicial release and placed on community

control, that if you were to violate the terms of community control you'd be subject to

being returned to the penitentiary for the balance of your sentence." T. at 13. It is

plausible that appellant could have subjectively understood that three years were

mandatory, after which he could be released on judicial release and placed on

community control.
Licking County, Case No. 13-CA-44                                                        7


         {¶12} Based upon the totality of the circumstances, at the time appellant pled no

contest, he was unaware of the amount of mandatory prison time, and that he would be

ineligible for judicial release or community control for the entire fourteen year term. Had

appellant known, he may not have pled no contest to the four counts.

         {¶13} Upon review, we find appellant's no contest pleas were not made

knowingly, intelligently, and voluntarily, and prejudicial error occurred in accepting said

pleas.

         {¶14} Assignments of Error I and II are granted.

         {¶15} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




SGF/sg 612
[Cite as State v. Smith, 2014-Ohio-2990.]
