[Cite as State v. Rieves, 2018-Ohio-955.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105386



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       SEAN K. RIEVES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-608473-A

        BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: March 15, 2018
ATTORNEY FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

         {¶1} Defendant-appellant, Sean Rieves, appeals his convictions and sentence.

He raises six assignments of error for our review:

         1. Defendant was denied due process of law when the court overruled his
         motion to suppress.

         2. Defendant was denied due process of law when the court imposed a
         sentence beyond the agreed sentence.

         3. Defendant was denied his constitutional rights when the court failed to
         advise defendant concerning self-incrimination when the court called upon
         defendant at sentencing to speak.

         4. Defendant was denied due process of law when the court would not
         allow defendant to withdraw his plea of no-contest when he did not receive
         an agreed sentence.

         5. Defendant was denied due process of law when the court failed to
         explain the effect of a no-contest plea.

         6. Defendant was denied his Sixth Amendment rights when the court based
         its sentence on facts not alleged in the indictment nor admitted at the plea.

         {¶2} We find no merit to Rieves’s arguments and affirm the judgment of the trial

court.

I. Procedural History and Factual Background

         {¶3} In August 2016, Rieves was indicted on nine counts: four counts of

trafficking in violation of R.C. 2925.03(A)(2) (fentanyl, heroin, cocaine, and marijuana),

three counts of possession in violation of R.C. 2925.11(A) (fentanyl, heroin, and cocaine),

one count of having a weapon while under disability in violation of R.C. 2923.13(A)(3),

and one count of possessing criminal tools in violation of R.C. 2923.24(A).              The
trafficking counts carried juvenile specifications, and the trafficking and possession

counts carried one-year firearm specifications and forfeiture specifications (gun, six cell

phones, a scale, $6,780, a surveillance system, a drug press, a grinder, a blender, a laptop,

an iPad, and promethezine).      The weapons disability and possessing criminal tools

counts carried a forfeiture specification for the gun, and possessing criminal tools also

contained a furthermore clause that the tools were used in the commission of a felony.

Rieves’s wife was also indicted on all counts except the weapons disability count.

         {¶4} After pleading not guilty to all charges, Rieves moved to suppress the

evidence against him.    Before the suppression hearing, the state placed its plea offer on

the record.   As part of the deal, Rieves would plead guilty to an amended indictment of

three counts of trafficking (fentanyl, heroin, and cocaine) with the one-year firearm

specification and forfeiture specifications, but without the juvenile specification (which

would make each offense a lesser-degree felony by one level), and the weapons disability

count.    The state’s offer was “packaged with the plea offer” to Rieves’s wife, where she

would plead guilty to permitting drug abuse and possessing criminal tools, both

fifth-degree felonies (which meant that probation was mandatory because she did not

have any prior felony convictions).     In exchange, the state would request the court to

nolle the remaining charges against Rieves.       The state indicated that if Rieves went

forward with his suppression motion, however, the plea offer was “off the table.”

Rieves rejected the state’s plea deal and proceeded with his motion to suppress.

         {¶5} At the close of the suppression hearing, the trial court denied Rieves’s
motion. Subsequently, Rieves pleaded no contest to the indictment preserving his right

to challenge the court’s denial of his suppression motion.

       {¶6} The trial court held a joint sentencing hearing on the present case and

Rieves’s community control violation for a previous trafficking case. Rieves stipulated

to the community control violation.     The trial court gave him credit for time served and

terminated his community control sanctions in his previous trafficking case.

       {¶7} In the present case, the trial court merged the trafficking and possession

counts for fentanyl, heroin, and cocaine, and the state elected to proceed with the three

trafficking counts.   The trial court then sentenced Rieves to one year in prison for the

firearm specifications attached to the trafficking heroin and trafficking fentanyl counts

and ordered that they be served consecutive to each other but concurrent to the one-year

terms for each of the remaining firearm specifications (for a total of two years for all of

the firearm specifications).    The trial court also sentenced Rieves to ten years for

trafficking heroin, eight years for trafficking fentanyl, six years for trafficking cocaine, 18

months for trafficking marijuana, 36 months for having a weapon while under disability,

and six months for possessing criminal tools and ordered that they be served concurrent to

each other (for a total of ten years), for an aggregate sentence of 12 years in prison.

       {¶8} The trial court further ordered that all of the items listed in the indictment

be forfeited.   It imposed five years of mandatory postrelease control for trafficking

heroin, three years of mandatory postrelease control for trafficking fentanyl and cocaine,

and up to three years of postrelease control for the remaining three counts.         The trial
court also sentenced Rieves to a mandatory fine of $10,000 and imposed court costs. It

is from this judgment that Rieves now appeals.

      {¶9} We will address Rieves’s assignments of error out of order for ease of

discussion.

II. Motion to Suppress

      {¶10} In his first assignment of error, Rieves contends that the trial court erred

when it determined that police seized his property pursuant to a valid search warrant.

Specifically, Rieves argues that Detective Witkiewicz’s affidavit did not provide

sufficient information to support a finding that there was probable cause to conduct a

search of his home.

      {¶11} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures and provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” Article I, Section 14, of the Ohio

Constitution affords the same protection as the Fourth Amendment in felony cases. State

v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 10, fn. 1.

      {¶12} “A neutral and detached judge or magistrate may issue a search warrant only

upon a finding of probable cause.” State v. Ingold, 10th Dist. Franklin No. 07AP-648,

2008-Ohio-2303, ¶ 17; Crim.R. 41(C).       In determining whether a search warrant is

supported by probable cause, the issuing judge is confined to the averments contained in

the supporting affidavit. Id. The affidavit must “name or describe the person to be
searched or particularly describe the place to be searched, name or describe the property

to be searched for and seized, state substantially the offense in relation thereto, and state

the factual basis for the affiant’s belief that such property is there located.” Crim.R.

41(C).

         {¶13} When determining whether probable cause exists for the issuance of a

warrant, courts employ a “totality-of-the-circumstances” test, requiring issuing judges

         to make a practical, common-sense decision whether, given all the
         circumstances set forth in the affidavit before [them], including the
         “veracity” and “basis of knowledge” of persons supplying hearsay
         information, there is a fair probability that contraband or evidence of a
         crime will be found in a particular place.

State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the

syllabus, quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

         {¶14} Upon appellate review, the reviewing court should not substitute its

judgment for that of the issuing judge by conducting a de novo review of whether the

affidavit sufficiently provides probable cause for the warrant. George at 330, citing

Gates. Instead, the duty of the reviewing court is simply to ensure that the issuing judge

or magistrate had a substantial basis for concluding probable cause existed. George at

paragraph two of the syllabus. Doubtful or marginal cases should be resolved in favor

of upholding the warrant.    George at 330; see also Gates at 237, fn. 10.

         {¶15} Thus, the question presented in this case is whether, when looking at the

totality of the circumstances, Detective Witkiewicz’s affidavit provided a substantial

basis for the issuing judge to conclude there was a fair probability that police would find
evidence of trafficking narcotics in a search of Rieves’s home.

       {¶16} In his affidavit, Detective Witkiewicz described the property to be searched

and set forth his qualifications and experience in investigating drug trafficking and other

drug offenses. He then made the following relevant averments:

       8.) Affiant states that in late 2015, Detective Griffis of the Southeast Area
       Narcotics Task Force (SEALE) was advised by Parma Narcotics of a black
       male selling heroin throughout Cuyahoga County and possibly lived at an
       address in a SEALE community. The black male’s name was Sean Rieves.
        Running Rieves through various law enforcement data bases provided
       addresses in Bedford Hts. and Maple Hts. as possible residences.

       9.) Affiant states that in May 2016, SEALE Narcotics received a telephone
       call from an anonymous caller saying that Sean Rieves was selling
       narcotics, particularly heroin, and was residing at the house located at * * *,
       Maple Hts., Ohio, 44137 (said residence to be searched) with a female
       named Erica Rieves.

       10.) Affiant states that on June 23, 2016, SEALE Detectives performed a
       trash pull from the residence located at * * *, Maple Hts., Ohio, 44137 (said
       residence to be searched) in order to look for signs of drug trafficking
       occurring at the residence. Affiant states that Detectives took 3 bags of
       garbage from the tree lawn of the residence. The garbage bags were taken
       to a secured location in order to examine for signs of drug trafficking.

       11.) Affiant states that Detective Witkiewicz located eleven (11) sandwich
       baggies with corners ripped off inside the trash, two of which contained a
       white/tan powder residue consistent with heroin, and numerous used rubber
       gloves. Detectives also discovered a letter addressed to “Sean Rieves”
       with the address of * * *, Maple Hts., Ohio. Detectives also located a
       prescription receipt for “Erica Rieves.” Affiant states that in his training
       and experience these plastic baggy tear offs are indicative of individuals
       packaging drugs for resale.

       12.) Affiant states that in his training and experience, heroin and other
       narcotics are placed into the smaller sandwich style bags, and the drug
       trafficker tears and keeps the corner from the baggy containing the
       narcotics, discarding the empty portion of the baggy into the trash. The
       smaller bags of heroin or narcotics are now packaged for resale.
       13.) Affiant states that by utilizing Sean Rieves personal identifiers such as
       name, date of birth and social security number the affiant checked for any
       criminal history involving Rieves. Affiant states that Rieves has been
       charged with robbery, felony assault, domestic violence, disorderly conduct,
       menacing, theft, criminal trespass, aggravated burglary, possession of drugs,
       kidnapping, weapons under disability, and aggravated robbery.
       {¶17} Initially, we note that it is well established that the “trash pull” itself did not

implicate Fourth Amendment concerns. In California v. Greenwood, 486 U.S. 35, 40,

108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court held that the

Fourth Amendment does not prohibit the warrantless search and seizure of garbage left

for collection outside the curtilage of a suspect’s home. This is because a person has no

reasonable expectation of privacy in items left for trash collection in an area that is

susceptible to open inspection and “accessible to animals, children, scavengers, snoops,

and other members of the public.” Id.

       {¶18} Rieves argues, however, that the contents of the trash pull “added nothing to

establish probable cause” in this case.    Specifically, Rieves maintains that the affidavit

did not provide probable cause because it was based on the trash-pull evidence and two

anonymous, “stale” tips that did not contain any indicia of reliability. And because the

anonymous tips were not reliable or otherwise corroborated, he maintains that the

detective’s affidavit was based only on the trash-pull evidence, which did not provide

sufficient probable cause.

       {¶19} Rieves cites to a Sixth Circuit case, United States v. Abernathy, 843 F.3d

243 (6th Cir.2016), in support of his argument that trash-pull evidence cannot establish

probable cause to search a home.      After reviewing Abernathy, however, we find that it
does not stand for Rieves’s proposition.            Further, we find Abernathy to be

distinguishable.

       {¶20} In Abernathy, police obtained a search warrant based on a detective’s

averment that he “had received information that the occupants of [a particular home] have

been and are currently engaging in illegal drug activity.” Id. at 247.   The detective also

conducted a trash pull.     The detective found several marijuana roaches in the trash with

marijuana residue inside, several plastic bags consistent with those used to package

marijuana for resale with marijuana residue in the bags, and mail connecting the

defendant to the address.

       {¶21} The defendant in Abernathy moved to suppress the evidence and also moved

for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978), challenging the accuracy of certain representations by the detective

in the affidavit. At the Franks hearing, the detective ultimately admitted that when he

submitted the affidavit, he had no information that somebody was selling drugs out of the

defendant’s residence.      The court found that the detective’s statement in the affidavit

that he “had received information that the occupants of [the home] have been and are

currently engaging in illegal drug activity” violated Franks and struck it from the

affidavit.

       {¶22} Without the detective’s statement that he had received information that the

occupants of the home were engaging in illegal drug activity, the Sixth Circuit analyzed

whether there was probable cause without it — which left only the evidence obtained
from the trash pull.     The court ultimately concluded that the evidence pulled from

defendant’s trash, standing alone, did not create a fair probability that drugs would be

found in defendant’s home. Id. at 254.

       {¶23} But here, Rieves did not establish at the motion to suppress hearing that

Detective Witkiewicz fabricated or misrepresented the facts in any part of his affidavit.

Thus, the trash-pull evidence in this case was not “standing alone” as it was in Abernathy.

 There were two anonymous tips to police that Rieves was selling heroin.         The first one

stated that Rieves was selling heroin throughout Cuyahoga County and “possibly lived at

an address in a SEALE community.”        The first tip was received in late 2015, which was

six or seven months before Detective Witkiewicz requested the search warrant.

Detective Witkiewicz averred that he conducted a search of Rieves’s name “through

various law enforcement data bases” and found “addresses in Bedford Hts. and Maple

Hts. as possible references.”

       {¶24} The second anonymous tip, received by police in May 2016 (one month

before the trash pull), stated that Rieves was selling narcotics, particularly heroin, and that

he lived at a particular address, which was given, in Maple Heights.         The anonymous

tipster further stated that Rieves lived with a female named Erica Rieves.

       {¶25} The “veracity, reliability and basis of knowledge [of an anonymous

informant] are all highly relevant in determining probable cause.” State v. Pustelnik, 8th

Dist. Cuyahoga No. 91779, 2009-Ohio-3458, ¶ 22, citing Gates, 462 U.S. 213, 103 S.Ct.

2317, 76 L.Ed.2d 527. “‘There must be some basis in the affidavit to indicate the
informant’s credibility, honesty or reliability.’” Id. at ¶ 22, quoting State v. Harry, 12th

Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 20. The anonymous tipsters in this

case did not include any information to establish they were honest or that the information

was reliable, i.e., the tipsters did not explain how they knew Rieves or how they knew that

he was selling heroin, nor do they provide any details regarding Rieves’s heroin

trafficking operation. Thus, there is no question that the two anonymous tips in this

case, standing alone, did not provide an adequate basis for a probable cause. See Gates

at 2332-2333 (“bare bones” affidavits do not provide a “substantial basis for determining

the existence of probable cause”).

       {¶26} But “a deficiency in one of these principles does not negate probable cause

if there is a strong showing on another or if there is some other indicia of reliability.”

Id., citing Gates.   Even where there is an absence of evidence in an affidavit regarding a

tipster’s reliability, corroboration of the informant’s statements by police investigation

can provide “sufficient indicia of the reliability and veracity of the informant’s

statements.” Id. at ¶ 23. See also State v. Ross, 6th Dist. Lucas No. L-96-266, 1998

Ohio App. LEXIS 94 (Jan. 16, 1998) (“Even in cases involving anonymous informants, a

tip is sufficient where certain important or key elements of the tip are corroborated by

police observation or investigation.”); State v. Goddard, 4th Dist. Washington No.

97CA23, 1998 Ohio App. LEXIS 4832 (Oct. 2, 1998) (while affidavit was lacking in

showing a basis for anonymous informant’s knowledge and in establishing his veracity,

the corroborating efforts by police officers made search constitutional).
       {¶27} Moreover, with regard to informants’ reliability and the basis of their

knowledge, under the current test of Gates the correct inquiry for the issuing judge is not

whether the affidavit includes reference to the informant’s basis of knowledge, veracity,

or reliability. See State v. Litteral, 12th Dist. Fayette No. CA98-02-002, 1999 Ohio

App. LEXIS 4 (Jan. 4, 1999). Rather, the issuing judge must determine whether, under

the totality of the circumstances, there exists a fair probability that evidence of a crime or

contraband will be found in a particular place. Id. This determination should be based

upon a practical, commonsense evaluation of all the circumstances set forth in the

affidavit. Gates at 230.    “[T]he focus of the probable cause inquiry is the totality of the

circumstances presented in the affidavit, not each component standing alone.” State v.

Robinson, 7th Dist. Columbiana No. 10 CO 37, 2011-Ohio-6639, ¶ 23. In this case,

unlike the facts in Abernathy, the affidavit included two anonymous tips and the evidence

from the trash pull.

       {¶28} We find Abernathy to be distinguishable for another reason.       The trash-pull

evidence in Abernathy only consisted of several marijuana roaches with marijuana inside

and several plastic bags that “were consistent with those used to package marijuana for

resale,” which also had marijuana residue in them. In examining the trash-pull evidence,

the Sixth Circuit determined that this evidence only suggested that “a small quantity of

marijuana might have recently been in the defendant’s residence.” Id. at 254.            The

court further explained:

       [T]he connection between the small quantity of marijuana paraphernalia
       recovered from defendant’s garbage and his residence is too logically
        attenuated to create a fair probability that more drugs were in the residence.
         Although the trash pull evidence certainly suggested that someone in the
        residence had smoked marijuana recently, that fact alone does not create an
        inference that the residence contained additional drugs. Drugs by their
        very nature “are usually sold and consumed in a prompt fashion,” * * * and
        so the more probable inference upon finding drug refuse is that whatever
        drugs were previously in the residence had been consumed and discarded.

Id. at 255, citing United States v. Elliott, 576 F.Supp. 1579 (S.D.Ohio 1984).

        {¶29} In the present case, however, the trash-pull evidence consisted of 11 plastic

“tear offs.”   Detective Witkiewicz averred that in his “training and experience,” drug

traffickers place heroin and other narcotics into “smaller sandwich style bags” for resale

and “tear off” the top corner of the bag, leaving the narcotics in the smaller bag and

discarding the “empty portion of the baggy into the trash.” A person using or consuming

drugs would never have possession of the “tear off” portion of the bag. Instead, the drug

user would only have possession of the smaller bag that contained (or had contained) the

drug.   Thus, unlike the trash evidence in Abernathy, which only indicated that someone

consumed marijuana, the trash evidence here indicated that someone was selling drugs

because “tear offs” would only be present in a drug trafficker’s trash.          Even though

drugs are sold in “prompt fashion,” it is likely drug traffickers would have more drugs in

their home to sell.

        {¶30} Rieves further argues that the first anonymous tip was “stale” because it was

six or seven months old. And he maintains that the information obtained from the more

recent anonymous tip “went stale” because police waited up to one month or more before

searching the contents of his trash for contraband.
       {¶31} Probable cause must exist at the time the application for a warrant is made.

State v. Shropshire, 8th Dist. Cuyahoga No. 103808, 2016-Ohio-7224, ¶ 25. There is no

arbitrary time limit for when information offered to support a search warrant application

becomes stale; instead, the information becomes stale “when enough time has elapsed

such that there is no longer ‘sufficient basis to believe * * * that the items to be seized are

still on the premises.’” United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997), quoting

United States v. Gann, 732 F.2d 714, 722 (9th Cir.1984). Although the trash pull may

have come as much as one month or more after the most recent anonymous tip, the trash

pull itself was completed on the day that Detective Witkiewicz applied for the warrant

and, thus, some of the information used in support of the application was fresh. See

State v. Brown, 8th Dist. Cuyahoga No. 105202, 2017-Ohio-8315 (although the

informant’s information was over a month old, two trash pulls were conducted within a

day of the warrant application).

       {¶32} Rieves also argues that two cases from this court, State v. Williams, 8th Dist.

Cuyahoga No. 98100, 2013-Ohio-368, and State v. Weimer, 8th Dist. Cuyahoga No.

92094, 2009-Ohio-4983, support his argument that the trash-pull evidence was

insufficient to establish probable cause.   After reviewing these cases, we find them to be

distinguishable from the instant case. See Williams at ¶ 18 (trash-pull evidence was not

sufficient because there were upper and lower units in the home and there was nothing on

the trash can identifying which unit it came from); Weimer at ¶ 33 (trash-pull evidence

was not sufficient, standing alone, because defendant established that the detective
misrepresented other facts in his affidavit).

       {¶33} After reviewing the affidavit in this case, we conclude that under the

totality-of-the-circumstances test, Detective Witkiewicz’s affidavit provided a substantial

basis for the issuing judge to conclude that there was a fair probability that contraband or

evidence of heroin trafficking would be found in the home, i.e., probable cause existed.

The tips included information that Rieves was trafficking narcotics, particularly heroin,

throughout Cuyahoga County. The second tipster also gave an address in Maple Heights

where Rieves was residing with a female named Erica Rieves.

       {¶34} The detective explained in the affidavit that he collected the trash from the

curb of the residence.    The trash-pull evidence included 11 “tear offs” indicative of

trafficking smaller bags of drugs, two of which contained “white/tan powder residue”

consistent with heroin. The detective also said that he found mail addressed to Rieves in

the trash as well as a prescription receipt for Erica Rieves.      The detective included

Rieves’s criminal history in the affidavit, which was extensive and also included a

conviction for drug possession.         Thus, the trash-pull evidence corroborated the

anonymous tips — which indicated that Rieves lived at the address with Erica Rieves and

sold heroin.

       {¶35} Our holding in this case is consistent with many other courts holding that

when an anonymous tip is received by police, drugs, and/or drug paraphernalia found in

the person’s trash is sufficient corroborating evidence to establish probable cause. See

State v. Quinn, 12th Dist. Butler No. CA2011-06-116, 2012-Ohio-3123 (anonymous tip
without any basis of knowledge or reliability standing alone was not sufficient to support

probable cause but when it was coupled with evidence from a trash pull, probable cause

to support a search warrant existed); State v. McGorty, 5th Dist. Stark No. 2007CA00257,

2008-Ohio-2643 (search warrant was supported by probable cause when statements from

an anonymous confidential informant were independently corroborated by marijuana

residue found in defendant’s trash); State v. Akers, 12th Dist. Butler No. CA2007-07-163,

2008-Ohio-4164, ¶ 25 (probable cause for search warrant existed when bare-bones

anonymous tip that defendant was selling methamphetamine, marijuana, and cocaine was

partially corroborated by a evidence of a single sandwich bag containing marijuana

remains in defendant’s trash); State v. Baas, 10th Dist. Franklin No. 13AP-644,

2014-Ohio-1191 (anonymous tip coupled with evidence from a trash pull was sufficient

to support probable cause for a search warrant).

       {¶36} In light of these cases and the fact that we are obligated to accord great

deference to the probable cause determination made by the magistrate or judge who issues

the search warrant and resolve any doubtful or marginal case in favor of upholding the

search warrant, we conclude that the judge in this case, which we acknowledge is a close

call, “had a substantial basis for concluding that probable cause existed” for issuing the

search warrant. George, 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph two of the

syllabus, following Gates, 462 U.S. at 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527.

       {¶37} Accordingly, Rieves’s first assignment of error is overruled.

III.   Effect of No Contest Plea
       {¶38} In his fifth assignment of error, Rieves maintains that the trial court violated

his due process rights when it failed to explain to him the effect of a no contest plea.

       {¶39} The standard for reviewing whether the trial court accepted a plea in

compliance with Crim.R. 11(C) is de novo. 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. Cuyahoga No. 92796, 2009-Ohio-6827,

¶ 26, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

       {¶40} The underlying purpose of Crim.R. 11(C) is to convey certain information to

a defendant so that he or she can make a voluntary and intelligent decision regarding

whether to plead guilty or no contest.   State v. Ballard, 66 Ohio St.2d 473, 479-480, 423

N.E.2d 115 (1981).      Before accepting a felony plea, the trial court must inform the

defendant of the nature of the charges, the maximum penalty involved, and the effect of

the plea (i.e., the nonconstitutional requirements) set forth in Crim.R. 11(C)(2)(a) and (b)

and notify the defendant of the constitutional rights the defendant is waiving under

Crim.R. 11(C)(2)(c).

       {¶41} The effect of a no contest plea is set forth in Crim.R. 11(B)(2), which

provides:

       The plea of no contest is not an admission of defendant’s guilt [unlike a
       guilty plea], but is an admission of the truth of the facts alleged in the
       indictment, information, or complaint, and the plea or admission shall not
       be used against the defendant in any subsequent civil or criminal
       proceeding.

       {¶42} 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

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, defendants subjectively understand the implications of their

plea and the rights they are waiving. Id., citing State v. Nero, 56 Ohio St.3d 106, 564

N.E.2d 474 (1990).

       {¶43} Furthermore, a defendant who challenges his or her plea on the basis that it

was not knowingly, intelligently, and voluntarily entered into must show a prejudicial

effect. Veney at ¶ 15. The test for prejudice is whether the plea would have otherwise

been made. Id.

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

substantially comply with Crim.R. 11(C)(2)(b) because it failed to ask Rieves if he

understood that his plea was an admission of the truth of the facts alleged in the

indictment.   Nonetheless, the Ohio Supreme Court has held that unless a defendant

asserts “actual innocence,” he or she is presumed to understand the effect of the plea and

“a court’s failure to inform the defendant of the effect of [the plea] as required by Crim.R.

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

2004-Ohio-4415, syllabus; see also State v. Taylor, 8th Dist. Cuyahoga No. 94569,

2010-Ohio-5607,      discretionary   appeal   not     allowed,   128   Ohio    St.3d   1462,

2011-Ohio-1829, 945 N.E.2d 524; State v. Thomas, 8th Dist. Cuyahoga No. 94788,

2011-Ohio-214,     discretionary     appeal   not     allowed,   128   Ohio   St.3d    1484,
2011-Ohio-2055, 946 N.E.2d 241. Although the plea at issue in Griggs was a guilty

plea, this court has “extended this presumption” to no contest pleas as well. State v.

Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 18, citing State v. Anglen,

8th Dist. Cuyahoga No. 102022, 2015-Ohio-4070.

       {¶45} Here, Rieves did not assert “actual innocence” during his plea proceeding.

Additionally, Rieves does not offer any 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 no contest plea

nor is any prejudice apparent from the record.

       {¶46} Rieves cites to several cases from this court in support of his argument that

because the trial court failed to inform him of the effect of his no contest plea, we should

vacate his plea: N. Royalton v. Semenchuk, 8th Dist. Cuyahoga No. 95357,

2010-Ohio-6197; Parma v. Pratts, 8th Dist. Cuyahoga No. 94990, 2011-Ohio-728; and

Cleveland v. Adams, 8th Dist. Cuyahoga No. 97523, 2012-Ohio-1063. Rieves further

quotes Adams where this court stated “that when a trial court completely fails to comply

with a rule in accepting a plea, a demonstration of prejudice is unnecessary.” Id. at ¶ 9.

       {¶47} The cases cited by Rieves, however, are misdemeanor cases. We have

explained that when it comes to felonies, “the Ohio Supreme Court has consistently held

that the court’s failure to tell the defendant the effect of a plea * * * does not invalidate

the plea unless appellant shows that he was prejudiced by the court’s failure to

substantially comply with the rule.” State v. Simonoski, 8th Dist. Cuyahoga No. 98496,

2013-Ohio-1031, ¶ 11, citing Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d
51; Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677; and Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.

         {¶48} “Unlike in felony cases, misdemeanor cases only require the court to advise

the defendant of the effect of the plea.” (Emphasis added.) Simonoski at ¶ 14. But in

felony cases, the court is required to advise the defendant of the constitutional rights he or

she is waiving by entering into the plea, as well as the nonconstitutional requirements

pursuant to Crim.R. 11(C)(2)(a) and (b), which ensures that the defendant knowingly,

intelligently, and voluntarily enters into his or her plea. Id. Therefore, the cases that

Rieves relies on, Semenchuk, Pratts, and Adams, are not applicable here.

         {¶49} Rieves further argues that we should vacate his plea based on State v. Jones,

2d Dist. Montgomery No. 25688, 2014-Ohio-5574.              In Jones, the Second District

vacated the defendant’s no contest plea in a felony case without a showing of prejudice

where the trial court failed to inform the defendant of the effect of the plea. Id. at ¶ 15.

This court, however, has already distinguished Jones when faced with the same argument.

 See Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166. We explained that in

Jones:

         [T]he state conceded that the trial court did not inform the defendant of the

         effect of his no contest plea but argued that the defendant subjectively

         understood the effect of his plea because the trial court had explained the

         maximum potential sentence the defendant could receive and the rights he

         was waiving upon entering his plea. Id. at ¶ 14. The court rejected the
       state’s argument, reasoning that the effect-of-plea requirement “cannot be

       met simply by the informing the defendant of the maximum sentence and

       the right to a jury trial” and concluding that “[u]nder the facts and

       circumstances” of that case, the defendant’s plea was not knowingly,

       intelligently and voluntarily entered. Id. at ¶ 5, 14. The Jones opinion does

       not indicate specifically what advisements were made to the defendant at

       the plea hearing in that case and did not apply the presumption in Griggs.

Id. at ¶ 19. Therefore, just as we found in Musleh, Jones does not support Rieves’s

arguments here.

       {¶50} Accordingly, after a review of the record in this case, we conclude that

Rieves did not establish that he was prejudiced by the trial court’s failure to explain the

effect of his no contest plea to him. We further note that at no time did Rieves assert that

he was actually innocent of the charges.

       {¶51} Rieves’s fifth assignment of error is overruled.

IV. Purported Agreed Sentence

       {¶52} In his second assignment of error, Rieves contends that the trial court

violated his due process rights when it imposed a sentence “beyond the agreed sentence”

of eight years. In his fourth assignment of error, he argues that the trial court violated

his due process rights when it would not allow him to withdraw his plea when it did not

impose the “agreed sentence.”      We will address these assignments of error together

because they are related to the same facts that occurred at the plea and sentencing hearing.
       A. Relevant Facts

       {¶53} At the joint plea hearing, the trial court asked Rieves and his wife if anyone

had threatened them with anything or promised them anything to get them to enter into

the plea.      Rieves’s wife responded “no,” and then Rieves stated, “No, just not for her to

go to jail.”     The trial court apparently misunderstood Rieves, and replied, “Pardon?   We

did talk about a potential sentence of eight years.”     Rieves’s defense counsel explained

the misunderstanding and told the court that Rieves was referring to his wife going to jail,

not himself.      The trial court reassured Rieves that he was “accurate” on that point; his

wife would not go to jail. The trial court then asked Rieves: “[i]s there anything else

that you’ve been promised?”       Rieves responded “no.”

       {¶54} At the sentencing hearing, the state informed the court that prison was

mandatory and that it believed “a substantial prison sentence [was] warranted.”           The

state informed the court that Rieves was on community control sanctions for drug

trafficking when he was charged in this case.        It further stated that Rieves’s criminal

history included felony domestic violence in 2009 (where he served one year in prison),

attempted robbery in 2011 (where he served four years in prison), and the previous

trafficking case for which he was still on community control sanctions and had violated

the terms of those sanctions by committing the offenses in the present case.       The state

further noted that “there were three minor children in the home at the time the search

warrant was executed.”

       {¶55} Defense counsel told the court that Rieves had a serious drug addiction and
that he needed help with this addiction. Defense counsel stated that Rieves told him that

he “didn’t sell any of these drugs to anybody” and was not “selling drugs out of that

house.”     Defense counsel then stated, “[s]o we would hope that the court might consider

— I know that there was discussions had that if he pled in a certain way he could get six

years, or if he pled this way he would be getting eight years. We would hope the court

might consider giving him something less than the eight years.”

         {¶56} The court then questioned defense counsel about his statements that Rieves

was not trafficking drugs. Defense counsel clarified that Rieves was in fact selling

drugs, he was just not selling drugs out of his house or in that area.

         {¶57} The court turned to Rieves next and asked him if he had anything to say.

Rieves responded, “[n]othing further from me Judge.        I’m sorry.”   The trial court then

stated: “Mr. Rieves, you have an opportunity to address the court before I announce

sentence.    Is there anything you would like to say?”    The following exchange then took

place:

         THE DEFENDANT: I just want to say on my behalf and my family’s
         behalf, you know, I just ask that you be more lenient on the sentencing. I
         wasn’t selling drugs. I wasn’t selling no drugs, whether it was out of the
         house or giving it to other people or people dying at the hands of me or
         anything that I did or anything of that nature. I know Fentanyl is a serious
         drug when you hear about it, but, in all honesty, I didn’t know what
         Fentanyl was until after I was doing research for this case. I never knew
         nothing about it. I just had a daughter a month ago. Her mother is in the
         back of the courtroom. I would just like you to be more lenient on me. I
         know eight years is a lot of time.

         THE COURT: I’m not following you. You had a daughter?

         THE DEFENDANT: Yes.
       THE COURT: With someone other than [your wife]?

       THE DEFENDANT: Yes.

       THE COURT: Her mother is in the back of the courtroom here?

       THE DEFENDANT: Yes.

       THE COURT: And you didn’t know what Fentanyl was?

       THE DEFENDANT: No.

       THE COURT: You weren’t selling that to anybody?

       THE DEFENDANT: I never gave nobody no Fentanyl. I never sold no
       Fentanyl to nobody. It was just like — actually, I got it, but I didn’t even
       know the seriousness or whatever it was of Fentanyl. I never even heard of
       Fentanyl until I started sitting in here watching the news and hearing how
       serious it was, and then getting re-indicted and I’m saying this is what I’m
       being charged with. I knew it was brought to me as if it was heroin and not
       Fentanyl.

       THE COURT: This was all a surprise to you?

       THE DEFENDANT: I mean, no, it wasn’t no surprise to me at all, no.

       {¶58} At that point, the trial court informed Rieves that it was going to give him

credit for time served in his previous trafficking case and terminate his community

control sanctions. The trial court then stated:

       The court did talk to your counsel and you about an agreed sentence here
       under certain terms, and you pled — after pleading no contest and
       preserving your appellate rights or entering into the plea agreement that was
       offered by the state of Ohio, you chose to enter the no contest option.

       After we * * * took your no contest plea, the state put on the record the
       factual basis of that plea or of the charges. The court found you guilty of
       those charges.
       And the assumption being that, you know, you were either going to be silent
       up here at sentencing or, you know, tell the truth and not come up here and
       manufacture a lie about 50 grams of Fentanyl being for personal use.

       The court does not feel bound by its prior agreement given your behavior
       and lack of truthfulness up here.

       {¶59} The trial court discussed the nine counts and imposed a sentence on each

count, for a total of 12 years in prison. It then explained the following.

       Mr. Rieves, it is clear from your behavior that you are not only a drug
       trafficker, you are a major drug trafficker. You had significant quantities
       of heroin, cocaine, and Fentanyl found in your residence along with
       quantities of marijuana.

       I had you on probation for trafficking. I gave you a break, because I
       thought you were married and had three kids, despite the fact that you had
       just finished serving a four-year prison sentence. You have shown me no
       degree of remorse or responsibility. And, frankly, you deserve every
       minute of these 12 years to keep society safe from merchants of death that
       you are.

       {¶60} After the trial court finished imposing the sentence, defense counsel then

stated to the court, “[t]here was no discussion ever had that indicated that if he gave a

dissertation that you were not satisfied with that the eight years that he agreed to plead to

would be enhanced.      The deal, as I understand it, I believe — [.]”       The trial court

interrupted defense counsel and stated: “[H]ere’s how it works in a court of law.         The

court expects honesty. If he doesn’t want to be honest, don’t say anything; but to come

up here and say that was for personal use is an affront to the intelligence of everyone in

our criminal justice system.”     Defense counsel then informed the court that Rieves

wished to withdraw his plea.    The trial court responded, “[i]t’s too late for that.   If you

don’t like the sentence, you don’t get to withdraw the plea.”
       B. Analysis

       {¶61}     The Due Process Clause of the Fourteenth Amendment requires that any

plea of guilty or no contest in a criminal case must be entered knowingly, intelligently,

and voluntarily. State v. Engle, 74 Ohio St.3d 525, 1996-Ohio-179, 660 N.E.2d 450.

When a trial court promises a certain sentence, the promise becomes an inducement to

enter a plea, and unless that sentence is given, the plea is not voluntary. State v. Kelly,

8th Dist. Cuyahoga Nos. 91875 and 91876, 2010-Ohio-432, ¶ 21, citing State v. Allen, 6th

Dist. Sandusky No. S-09-004, 2009-Ohio-3799.                 Accordingly, a trial court commits

reversible error when it participates in plea negotiations but fails to impose the promised

sentence. State v. Triplett, 8th Dist. Cuyahoga No. 69237, 1997 Ohio App. LEXIS 493,

5 (Feb. 13, 1997).

       {¶62} We first note that the transcript establishes that the state was not involved in

any purported “agreed sentence.”         Neither the state nor defense counsel stated anything

on the record indicating that the parties had agreed to a specific sentence.                The state

confirms this fact in its brief.1

       {¶63} It is apparent then that any alleged agreement was between the trial court

and the defense.     But the trial court’s comment at the plea hearing — that “[w]e did talk



         According to the state’s brief, when the parties were talking in the hallway, the trial court
       1


informed them that “it was his intent to sentence the appellant to eight years in prison if he pled no
contest, but that he would sentence the appellant to less time if he accepted responsibility for his
actions by pleading guilty.” The state further informs us in its brief that “the judge did provide a
specific number of years as to the lesser amount of time, but the [state] no longer recall[ed] the exact
number.”
about a potential sentence of eight years” — negates Rieves’s argument that there was an

agreed sentence.      “Potential” does not amount to a promise.

       {¶64} Moreover, Rieves stated at the plea hearing that the only thing that was

promised to him in exchange for his plea was that his wife would not go to jail. When

further asked by the trial court if there was anything else promised to him, Rieves replied

that there was not.

       {¶65} We also note that during the plea hearing, the trial court fully informed

Rieves of the maximum sentence that he could receive for each offense and did not state

anything about Rieves receiving a particular sentence.     In fact, there was nothing said at

the plea hearing about an agreed sentence — not from the trial court, defense counsel, or

Rieves.

       {¶66} We acknowledge that there were comments made at the sentencing hearing

implying that the trial court had indicated it would impose a certain sentence if the

defendant chose to plead no contest, but even defense counsel, when asking the court to

consider a sentence “something less than the eight years,” referred to the purported

“agreement” as “discussions.”      Discussions, however, are not a promise.

       {¶67} Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.”      A defendant who seeks to withdraw a guilty plea after the

imposition of sentence has the burden of establishing the existence of manifest injustice.
State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

 There is no manifest injustice in this case based on the record before us because the trial

court’s sentence simply does not constitute a clear or openly unjust act.

       {¶68} We also find that Rieves’s sentence is not contrary to law and is supported

by the record.   The trial court sentenced him within the permissible statutory ranges and

considered the principles and purposes of felony sentencing set forth in R.C. 2929.11 and

2929.12.   The record reflects that the trial court considered the fact that Rieves was on

probation (for drug trafficking) at the time he was arrested in his case and that it also

considered Rieves’s criminal history, pointing out that Rieves had practically just gotten

out of a four-year prison term when he committed the first trafficking case.      The trial

court further considered the quantities of the drugs, the fact that Rieves was convicted of

trafficking four different kinds of drugs (heroin, cocaine, fentanyl, and marijuana), and

the fact that Rieves did not show any remorse at the hearing because he denied even

selling drugs to anyone.

       {¶69} Accordingly, Rieves’s second and fourth assignments of error are overruled.



V. Other Sentencing Issues

       {¶70} In his remaining two assignments of error, Rieves raises issues relating to

his sentence. In his third assignment of error, he argues that the trial court violated his

constitutional right against self-incrimination when it failed to advise him at his

sentencing hearing that “if he said something that the court disagreed with that the court
was not bound by the agreed sentence.” While this is a novel argument, it has no merit

because there was no “agreed sentence.”

       {¶71} In his sixth assignment of error, Rieves maintains that the trial court violated

his Sixth Amendment rights when it based his sentence on facts not alleged in the

indictment or admitted at the plea hearing.      He argues that the following comments:

“Mr. Rieves, it is clear from your behavior that you are not only a drug trafficker, you are

a major drug trafficker.   You had significant quantities of heroin, cocaine, and fentanyl

found in your residence along with quantities of marijuana[,]” show that the trial court

based its sentence “on matters that were improperly alleged.”

       {¶72} Rieves cites to State v. Armetta, 8th Dist. Cuyahoga No. 84366,

2005-Ohio-3689, in support of his argument that a trial court cannot base its sentence

“upon a crime neither charged nor proven.”      In Armetta, however, the trial court based

the defendant’s sentence in part “on unsubstantiated allegations” made by the victim at

the sentencing hearing that the defendant frequently engaged in drag racing and had

recently been seen “buying and driving another race car.”    Id. at ¶ 8, 17.

       {¶73} Unlike Armetta, the trial court’s comments in this case — that Rieves was a

“major drug trafficker” — were based on the amount of drugs that were found in Rieves’s

home and that he admitted to by pleading no contest and not on any unproven allegations.



       {¶74} Accordingly, Rieves’s third and sixth assignments of error are overruled.

       {¶75} Judgment affirmed.
      It is ordered that appellee recover from appellant the 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.




MARY J. BOYLE, JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
