[Cite as State v. Petitto, 2011-Ohio-2391.]


         Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA




                            JOURNAL ENTRY AND OPINION
                                    No. 95276



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 ANTHONY PETITTO
                                                       DEFENDANT-APPELLANT



                                JUDGMENT:
                          REVERSED AND REMANDED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-530113

        BEFORE:             E. Gallagher, J., Kilbane, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                           May 19, 2011
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ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Ronni Ducoff
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} Defendant-Appellant,      Anthony     Petitto,   appeals   from   his

convictions in the Cuyahoga County Court of Common Pleas.              Appellant

argues that the trial court failed to inform him of the effect of his guilty plea,

failed to inform him of the consequences of pleading guilty to a new felony

while on postrelease control, failed to determine whether or not he

understood the nature of the charges against him, failed to properly assess

costs, and failed to consider statutory criteria in imposing more than a

minimum sentence. Appellant additionally argues that the trial court failed
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to make statutory findings pursuant to R.C. 2929.14(E) and that his attorney

provided ineffective assistance of counsel at his sentencing hearing. For the

following reasons, we reverse and remand.

      {¶ 2} Appellant was indicted on November 13, 2009.            Appellant’s

indictment included 48 separate counts including rape and kidnapping

involving two victims. Appellant initially pled not guilty to the indictment.

On March 3, 2010, pursuant to a plea agreement between the State and

appellant, the State moved to amend Count 5 (rape) and Count 30 (rape) to

gross sexual imposition pursuant to R.C. 2907.05(A)(4).           The amended

counts were third degree felonies involving separate victims less than 13

years of age.

      {¶ 3} Appellant pled guilty to the two counts, as amended, on March 3,

2010, the remaining counts were nolled, and the trial court remanded

appellant pending sentencing. A sentencing hearing was held on April 7,

2010 and the trial court sentenced appellant to four years on each count to

run consecutive to one another for a total of eight years. Appellant was also

advised of a mandatory five year postrelease control term and was deemed a

Tier III sex offender. Appellant subsequently appealed, raising the seven

assignments of error contained in the appendix of this opinion.

      {¶ 4} In his first assignment of error, appellant argues that his guilty
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plea must be vacated because during the plea proceedings, the trial court

failed to inform him of the effect of his guilty pleas pursuant to Crim.R.

11(C). “The standard for reviewing whether the trial court accepted a plea

in compliance with Crim.R. 11(C) is a de novo standard of review.             It

requires an appellate court to review the totality of the circumstances and

determine whether the plea hearing was in compliance with Crim.R. 11(C).”

 State v. Cardwell, 8th Dist. No. 92796, 2009-Ohio-6827, ¶26, citing State v.

Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163           (internal citations

omitted).

      {¶ 5} When accepting a plea of guilty in a felony case, the trial court is

required to inform the defendant of the effect of the plea.            Crim.R.

11(C)(2)(b); State v. Jones, 116 Ohio St.3d 211, 216, 2007-Ohio-6093, 877

N.E.2d 677. Crim.R.11(B) defines a guilty plea as, “a complete admission of

the defendants guilt.”

      {¶ 6} The trial court’s duty to inform the defendant of the effect of the

plea is a nonconstitutional requirement of Crim.R. 11.         State v. Griggs,

103 Ohio St.3d 85, 87, 2004-Ohio-4415, 814 N.E.2d 51, citing State v. Nero

(1990), 56 Ohio St.3d 106, 107, 564 N.E.2d 474. With respect to the

nonconstitutional requirements of Crim.R. 11, as set forth in Crim.R.

11(C)(2)(a) and (b), reviewing courts shall consider whether there was
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substantial compliance with the rule. State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶14-17.       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 (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474.

      {¶ 7} Furthermore, 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. The test for

prejudice is whether the plea would have otherwise been made. Id.; see, also,

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.

      {¶ 8} In the present case, the record reveals that the trial court failed

to strictly comply with Crim.R. 11(C)(2)(b) in that the court did not

specifically ask appellant if he understood that his plea was a complete

admission of his guilt. Nonetheless, the Ohio Supreme Court has held that

unless a defendant asserts “actual innocence,” he is “presumed to understand

that he has completely admitted his guilt,” and “a courts failure to inform

the defendant of the effect of his guilty plea as required by Crim.R. 11 is

presumed not to be prejudicial.” State v. Griggs, 103 Ohio St.3d 85, 814

N.E.2d 51, syllabus; see, also, State v. Taylor, Cuyahoga App. No. 94569,

2010-Ohio-5607; State v. Thomas, Cuyahoga App. No. 94788, 2011-Ohio-214.
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  Appellant did not assert “actual innocence” during his plea proceeding.

Additionally, appellant offers no argument as to how he was prejudiced in

any way by the trial courts failure to determine if he understood the effect

of his guilty plea nor is any prejudice apparent from the record.

      {¶ 9} Although not raised as an assignment of error by appellant, we

note that the trial court failed to directly ascertain whether appellant

understood the maximum penalty for each offense pursuant to Crim.R.

11(C)(2)(a). This is a nonconstitutional duty under Crim.R. 11(C)(2)(a) and

the substantial compliance analysis discussed above applies. State v. Scott,

Cuyahoga App. No. 84381, 84382, 84383, 84384, 84389, 2005-Ohio-3690,

citing State v. Griggs, 103 Ohio St.3d 85, 87, 814 N.E.2d 51.

      {¶ 10} At appellant’s plea proceeding, the State read the two amended

counts of gross sexual imposition to which he would plead guilty. The State

then concluded, “And as such, he would face anywhere between one and five

years of definite yearly intervals. In this case, he would also agree that he

must go to prison, that although this offense usually is eligible for

community control, there would be no community control. That he must go to

prison. The period of PRC, post release control, for this is five years.” (Tr. 5.)

After discussing a number of appellant’s constitutional rights, postrelease

control and his Tier III offender status, the trial court stated, “That would be
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after you finish your sentence because a condition of this plea is that

notwithstanding the fact that it is probationable, you could serve a prison

term of anywhere from one to five years in yearly increments, possible fine of

$10,000.”   (Tr. 11.)   After discussing postrelease control, the trial court

asked appellant if he had any questions to ask regarding the plea and the

possible consequences. Appellant stated that he did not. (Tr. 5.)

      {¶ 11} This is not an instance where, as in State v. Tokar, Cuyahoga

App. No. 91941, 2009-Ohio-4369, the trial court completely failed to comply

with the requirements of Crim.R.11(C)(2)(a) such that an analysis of

substantial compliance and prejudice are not implicated. The trial court in

this instance partially complied with the rule in that the potential maximum

penalty for a third degree felony was mentioned, however the penalty was

discussed in an ambiguous manner open to reasonable misinterpretation by

appellant. (Emphasis added.)

      {¶ 12} We are mindful of the Ohio Supreme Court’s holding in State v.

Johnson (1988), 40 Ohio St.3d 130, 134, 532 N.E.2d 1295, that, “[f]ailure to

inform a defendant who pled guilty to more than one offense that the court

may order him to serve any sentences it imposed consecutively, rather than

concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the

plea involuntary.”
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      {¶ 13} However, on the facts presented in this case, we conclude that

under the totality of the circumstances, the appellant could not have

subjectively understood the implications of his plea because the trial court’s

ambiguous reference to a potential “prison term of anywhere from one to five

years” failed to convey to him that the potential maximum prison term for

each offense was five years. The prejudice to appellant is obvious from the

record.   A plain reading of the trial court’s language would lead one to

believe that the maximum penalty he faced was 5 years, cumulatively. The

trial court was not required to inform appellant that the individual penalties

for his offenses could be served consecutively. However, we hold that a trial

court errs when it fails to inform the defendant of the maximum penalty for

each offense and uses misleading language in connection with multiple

offenses that ambiguously refers to a single maximum penalty. Accordingly,

appellant’s first assignment of error is sustained and his plea is vacated.

      {¶ 14} Although   appellant’s remaining assignments of error are

rendered moot by our vacating of his sentence pursuant to the first

assignment of error, we note that as addressed in his fourth assignment of

error, the trial court erred when it did not assess costs in open court and

subsequently assessed costs in its journal entry. The State concedes the

trial court erred in that its failure to address court costs denied appellant the
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opportunity to claim indigence and to seek a waiver of the payment of costs.

Pursuant to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d

278, the appropriate course in such an instance would be a limited remand to

the trial court to allow appellant to move the court for a waiver of the

payment of court costs.

       {¶ 15} Judgment reversed and remanded to the lower court for further

proceedings consistent with this opinion.

       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.



       EILEEN A. GALLAGHER, JUDGE

       MARY EILEEN KILBANE, A.J., and
       SEAN C. GALLAGHER, J., CONCUR




                                               Appendix
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      Assignment of Error No. 1:

      {¶ 16} “Defendant was denied due process of law when the Court did
not inform the Defendant of the effect of a plea of guilty.”

      Assignment of Error No. 2:

      {¶ 17} “Defendant was denied due process of law when the court failed
to inform the Defendant concerning the consequences of pleading guilty to a
new felony while on post-release control.”

      Assignment of Error No. 3:

      {¶ 18} “Defendant was denied due process of law when the court did not
determine the Defendant understood the nature of the plea to amended
charges.”

      Assignment of Error No. 4:

      {¶ 19} “Defendant was denied due process of law when the court did not
assess costs in open court and costs were assessed in the judgment entry.”

      Assignment of Error No. 5:

      {¶ 20} “Defendant was denied due process of law when the court failed
to consider the statutory criteria in imposing more than a minimum
sentence.”

      Assignment of Error No. 6:

      {¶ 21} “Defendant was denied due process of law when the court
arbitrarily imposed consecutive sentences without any findings.”

      Assignment of Error No. 7:

      {¶ 22} “Defendant was denied counsel as guaranteed by the Sixth
Amendment.”
