[Cite as Cleveland v. Jones-McFarlane, 2020-Ohio-3662.]

                             COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


CITY OF CLEVELAND,                                   :

                Plaintiff-Appellee,                  :
                                                                 No. 108581
                v.                                   :

TOMIKA J. JONES-MCFARLANE,                           :

                Defendant-Appellant.                 :


                              JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED, PLEA VACATED, AND REMANDED
                RELEASED AND JOURNALIZED: July 9, 2020


                     Criminal Appeal from the Cleveland Municipal Court
                                Case No. 2018 TRC 033049


                                          Appearances:

                Barbara A. Langhenry, Cleveland Director of Law, and
                Karrie D. Howard, Chief Prosecutor, and Jonathan L.
                Cudnik, Assistant City Prosecutor, for appellee.

                Fred D. Middleton, for appellant.


MARY EILEEN KILBANE, J.:

                  Defendant-appellant,           Tomika   J.   Jones-McFarlane   (“Jones-

McFarlane”), appeals from her sentence pursuant to a guilty plea to one count of

having physical control of a vehicle while under the influence, in violation of R.C.
4511.194. For the reasons that follow, we reverse, vacate the plea, and remand the

matter to the trial court.

I.   BACKGROUND

               Jones-McFarlane, 42 years old, was pulled over on November 9,

2018, and charged with three traffic violations. Count 1 was a violation of R.C.

4511.19(A)(1)(a), a first-degree misdemeanor, for operating a vehicle while under

the influence of alcohol or drugs. Count 2 was a violation of R.C. 4513.03, a minor

misdemeanor, for not displaying lighted lights on a motor vehicle. Count 3 was a

violation of R.C. 4513.263(B)(1), a minor misdemeanor, for not wearing a seatbelt

while operating a vehicle.    In a separate case (2018 CRB 020368), Jones-

McFarlane was charged with one count of violating R.C. 4301.62, a minor

misdemeanor, for having an opened container of beer or intoxicating liquor

prohibited at certain premises on the same date as the other charged offenses.

               The city of Cleveland represented that she was weaving within her

lane before being pulled over, and that she had droopy eyes, lethargic movements,

and underwent standard sobriety tests before proceeding to the Linndale Police

Department for a test. Jones-McFarlane represented that she was pulled over

because her headlights were off. She also represented that her breathalyzer test

result was 0.02. She pled not guilty at her arraignment hearing. Counsel was later

appointed.

               At a hearing on November 19, 2018, a plea deal was discussed under

which Jones-McFarlane would plead guilty to an amended Count 1, and the other
counts, including the open container charge, would be nolled. The prosecutor also

recommended the three-day intervention program that first-time offenders

convicted of operating a vehicle under the influence of alcohol or other drugs may

attend at the court’s discretion instead of a mandatory three-day jail term. See

R.C. 1547.99 and 4511.19.

              Defense counsel appears to have attempted to explain the plea deal

to Jones-McFarlane during the November 19, 2018 hearing, but her responses

throughout the exchange are largely reflected as “Inaudible” on the transcript. At

one point, defense counsel stated “Your Honor, she’s not clear on what her

alternatives are.” Jones-McFarlane then stated, “I just want to get it over with.

No.” Afterwards, the court stated, “That’s not a reason to enter a plea” and

continued the hearing to December 10, 2018. Jones-McFarlane and the court then

had the following exchange:

      JONES-MCFARLANE: Sir, I’m agreeing to the plea.

      COURT: No. You’ve indicated you’re not happy with what’s going on.
      You need to talk to your attorney and figure out what you want to do.

      JONES-MCFARLANE: No.

      COURT: We’re coming back on 12-10 at 11 o’clock.

              The plea hearing proceeded on December 10, 2018. With counsel

present, Jones-McFarlane pled guilty to an amended Count 1.          As amended,

Count 1 charged a violation of R.C. 4511.194, a first-degree misdemeanor, for

having physical control of a vehicle while under the influence. Counts 2 and 3 were
nolled.   The open container charge from the other case was also nolled. The

following colloquy took place at the plea hearing:

      COURT: How do you plead to the amended charge?

      JONES-MCFARLANE: Guilty.

      COURT: You understand what’s going on in here?

      JONES-MCFARLANE: Enough.

      COURT: By entering this plea, you know you’re giving up certain
      constitutional rights?

      JONES-MCFARLANE: I’m sorry.

      COURT: By entering this plea, you know you’re giving up certain
      constitutional rights?

      JONES-MCFARLANE: I understand that.

      COURT: Did your attorney advise you of your constitutional rights
      before today?

      JONES-MCFARLANE: No.

      COURT: You know you have a right to a trial or to a bench or to a
      jury. You have the right to call witnesses on your behalf. You have the
      right to confront witnesses who might testify against you. You have
      the right to be presumed innocent of all these charges — (inaudible) —
      do you understand those rights?

      JONES-MCFARLANE: Yes

      COURT: You have the right to have the prosecution prove each and
      every element of the charges against you. You have the right to
      remain silent at all stages of these proceedings. Do you wish to give
      up all those rights today?

      JONES-MCFARLANE: Yes.

              The prosecutor then set forth the factual basis for the charge.

Afterwards, the court informed Jones-McFarlane that if she had insurance, she
could take it to the BMV and show it to them to avoid the license suspension, or

come back to court at a later date. Jones-McFarlane responded, “I don’t want to

come back.” The court proceeded to sentence her to 180 days with a $1,000 fine at

the plea hearing, but later stated it would wait for a report to see whether Ohio’s

intervention program was recommended. The following exchange took place:

      COURT: All right. We will proceed with sentencing today. $1,000.
      180 days. Does she want to do the Three Day Alternative or three
      days in jail?

      DEFENSE COUNSEL: She said she can’t afford the Alternative to
      Jail.

      COURT: Are you working, ma’am?

      JONES-MCFARLANE: No, I’m on disability.

      COURT: What are you on, SSI?

      DEFENDANT: Social Security Disability

      COURT: SSD. If you get a drug test today, how would you do?

      DEFENDANT: Pretty good.

      COURT: Come back negative or positive?

      DEFENDANT: Negative.

      COURT: Was it a test or refusal?

      PROSECUTOR: Urine test, your Honor.

      COURT: Do we have the results?

      PROSECUTOR: That is — she’s — that’s why she is not — she is
      pleading to Physical.

      COURT: Okay. I’m going to get a report. January the 23rd. 10:00
      a.m.
              Jones-McFarlane then told the court that she “was trying to avoid

coming back here,” that she could not afford the alternative program, and that she

would “just report to jail.” The trial court concluded:

      I’ll get a report. I’ll see what they recommend. If they recommend
      they want to pay for you doing the three day program, they may do
      that. If they want to recommend you just go to jail, they may do that.
      I don’t know what they’re going to say. Just go down to probation. I’ll
      see you next month.

              The case was scheduled for a sentencing hearing on January 23,

2019. Jones-McFarlane appeared that day, but requested a continuance because

she wanted to retain private counsel. The court continued the sentencing hearing

to February 20, 2019. Jones-McFarlane failed to appear that day and a warrant

was issued on February 24, 2019.        She was arrested on March 5, 2019, and

appeared before the court on March 11, 2019, at which the court set another

sentencing hearing date for March 20, 2019. Jones-McFarlane also did not appear

on the March 20, 2019 date. The court set a hearing for March 27, 2019, that was

continued to May 6, 2019, at Jones-McFarlane’s request.

              A sentence was not entered on the docket until May 6, 2019, five

months after the plea hearing. On May 6, 2019, the court sentenced Jones-

McFarlane to 180 days of incarceration and ordered her to pay a $1,000 fine. The

court suspended 177 days of the incarceration sentence and $500 of the fine. The

court also ordered one year of community control supervision and ordered Jones-

McFarlane to complete four Mothers Against Drunk Driving sessions. The trial
court also referred Jones-McFarlane to be screened for the Mental Health

Specialized Docket.

              This appeal followed.      Jones-McFarlane asserts the following

assignment of error:

      The guilty plea was not knowingly, intelligently or voluntary [sic]
      entered when there is no record of the statement of possible sentences
      based on a change of plea and thus in violation of the Fifth, Sixth, and
      Fourteenth Amendments to the United States Constitution and Article
      I, §§ 10 and 16 of the Ohio Constitution and violation of Criminal Rule
      11 and Traffic Rule 10.

II. STANDARD OF REVIEW

              “We review the trial court’s compliance with Crim.R. 11 de novo.”

State v. Simmons, 8th Dist. Cuyahoga No. 105984, 2017-Ohio-8891, ¶ 9, citing

State v. McGinnis, 8th Dist. Cuyahoga No. 99918, 2014-Ohio-2385, ¶ 11, and State

v. Cardwell, 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827. ‘“In other words,

this court will conduct our own independent review of the record without any

deference to the trial court.’” Simmons at ¶ 9, quoting State v. Avery, 4th Dist.

Scioto No. 14CA3613, 2015-Ohio-4251, ¶ 5.

              The Ohio Supreme Court has further explained:

      When the trial judge does not substantially comply with Crim.R. 11 in
      regard to a nonconstitutional right, reviewing courts must determine
      whether the trial court partially complied or failed to comply with the
      rule. If the trial judge partially complied, e.g., by mentioning
      mandatory postrelease control without explaining it, the plea may be
      vacated only if the defendant demonstrates a prejudicial effect. * * *

      The test for prejudice is whether the plea would have otherwise been
      made. * * *
      If the trial judge completely failed to comply with the rule, e.g., by not
      informing the defendant of a mandatory period of postrelease control,
      the plea must be vacated. * * *

      A complete failure to comply with the rule does not implicate an
      analysis of prejudice.

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

III. LAW AND ANALYSIS

               Jones-McFarlane argues that her guilty plea and sentence should be

vacated because she was not made aware of the possible sentences associated with

the charge before entering her plea.       She argues that the trial court violated

Crim.R. 11(E) and Traf.R. 10(D).1 We find that although the court was not required

to inform Jones-McFarlane of the possible sentences associated with her plea, it

otherwise failed to comply with Crim.R. 11(E) by not informing Jones-McFarlane

of the effect of her plea, as set forth in Crim.R. 11(B). Accordingly, we vacate the

guilty plea.

      A. Jones-McFarlane’s guilty plea was governed by Crim.R. 11(E).

               “A trial court’s obligations in accepting a plea depend upon the level

of offense to which the defendant is pleading.” State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677, ¶ 6, citing Watkins at ¶ 25. Crim.R. 11 governs

the entering of pleas and “sets forth distinct procedures, depending upon the

classification of the offense involved.” Jones at ¶ 11.


      1 Traf.R. 10(D) is substantively identical to Crim.R. 11(E). Parma v. Buckwald,
8th Dist. Cuyahoga Nos. 92354 and 92356, 2009-Ohio-4032, ¶ 8, citing State v.
Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 15. The same is true of
Traf.R. 10(B) and Crim.R. 11(B). Id. at ¶ 17. Therefore, our analysis of Jones-
McFarlane’s assignment of error under Crim.R. 11 is the same for Traf.R. 10.
               Jones-McFarlane entered a plea of guilty to a charge of having

physical control of a vehicle while under the influence, a first-degree misdemeanor

in violation of R.C. 4511.194, which is subject to a maximum sentence of 180 days.

See R.C. 2929.24. As the offense carries with it a maximum sentence of less than

six months, it is a petty offense rather than a serious offense. Crim.R. 2(C) and

(D). Because Jones-McFarlane pled guilty to a petty offense, Crim.R. 11(E) governs

the trial court’s acceptance of her guilty plea.

      B. Trial court’s obligations under Crim.R. 11(E) required the trial
         court to inform Jones-McFarlane of the “effect of her plea.”

               Crim.R. 11(E) provides:

      Misdemeanor cases involving petty offenses. In misdemeanor cases
      involving petty offenses the court may refuse to accept a plea of guilty
      or no contest, and shall not accept such pleas without first informing
      the defendant of the effect of the plea of guilty, no contest, and not
      guilty. The counsel provisions of Crim.R. 44(B) and (C) apply to
      division (E) of this rule.

(Emphasis added.)

               The Ohio Supreme Court has found that “effect of the plea”

described in Crim.R. 11(E) is satisfied by informing the defendant of the language

in Crim.R. 11(B). Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, at ¶

25; Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, at ¶ 28 (“where a

defendant charged with a petty misdemeanor traffic offense pleads guilty or no

contest, the trial court complies with Traf.R. 10(D) by informing the defendant of

the information contained in Traf.R. 10(B)”).

               In Jones, the court held:
      We hold, therefore, that to satisfy the requirement of informing a
      defendant of the effect of a plea, a trial court must inform the
      defendant of the appropriate language under Crim.R. 11(B). In this
      case, before accepting a guilty plea to a misdemeanor for a petty
      offense, the court was required to inform Jones that a plea of guilty is
      a complete admission of guilt.

      ***

      Although Crim.R. 11(E) does not require the trial court to engage in a
      lengthy inquiry when a plea is accepted to a misdemeanor charge
      involving a petty offense, the rule does require that certain
      information be given on the “effect of the plea.” Whether orally or in
      writing, a trial court must inform the defendant of the appropriate
      language under Crim.R. 11(B) before accepting a plea.

Jones at ¶ 25, 51.

               Crim.R. 11(B)(1) provides:

      (B) Effect of guilty or no contest pleas. With reference to the offense
      or offenses to which the plea is entered: (1) The plea of guilty is a
      complete admission of the defendant’s guilt.

               Thus, pursuant to Crim.R. 11(E), the trial court was only required to

inform Jones-McFarlane of the “effect of the plea of guilty” as set forth in Crim.R.

11(B). Cleveland v. O’Donnell, 2018-Ohio-390, 106 N.E.3d 192, ¶ 11 (8th Dist.);

State v. Mitchell, 8th Dist. Cuyahoga No. 103364, 2016-Ohio-4956, ¶ 8; Cleveland

v. Wynn, 8th Dist. Cuyahoga No. 103969, 2016-Ohio-5417, ¶ 9.

      C. Crim.R. 11(E) did not require the trial court to inform Jones-
         McFarlane of the maximum or potential penalties associated
         with her guilty plea.

               Crim.R. 11(E) does not require that a defendant be informed of the

possible sentences of a plea, as Jones-McFarlane argues. Parma v. Benedict, 8th

Dist. Cuyahoga No. 98947, 2013-Ohio-1990, ¶ 6-15. In Benedict, we found that the
trial court complied with Crim.R. 11(E) in accepting a no contest plea where it

advised the defendant according to Crim.R. 11(B), but failed to inform the

defendant of other possible penalties, namely the mandatory suspension of the

defendant’s commercial driver’s license.       Accordingly, we must conclude that

Jones-McFarlane’s claim that the trial court violated her rights when it accepted

her guilty plea without informing her of the possible sentences is without merit.

Benedict at ¶ 15. See also State v. Songer, 5th Dist. Richland No. 01CA82, 2002

Ohio App. LEXIS 2945, 11 (May 30, 2002) (“There is no requirement in Crim.R.

11(B) that the trial court advise a defendant entering a no contest plea to a petty

offense of the nature of the offense and the potential penalties. In short, we find

that the nature of the offense and potential penalties are not part of the ‘effect’ of a

no contest plea.”); State v. Griffith, 10th Dist. Franklin No. 10AP-94, 2010-Ohio-

5556, ¶ 4-13 (failure to inform defendant of potential penalties of a petty

misdemeanor did not violate Crim.R. 11(E)); State v. Higby, 9th Dist. Wayne No.

10CA0054, 2011-Ohio-4996 (“Under Criminal Rule 11(E), the municipal court was

not required to tell Mr. Higby about the potential penalties he faced or that his

sentences could run consecutively before accepting his no-contest plea.”).

               The Ohio Supreme Court has also concluded that the “effect of the

plea” language in Crim.R. 11(E) does not require an explanation of the maximum

penalty involved. Benedict at ¶ 9, citing Jones, 116 Ohio St.3d 211, 2007-Ohio-

6093, 877 N.E.2d 677, at ¶ 22. That right is set forth in Crim.R. 11(C), which

governs felony pleas. Buckwald, 8th Dist. Cuyahoga Nos. 92354 and 92356, 2009-
Ohio-4032, ¶ 8, 16.      But we note, as we did in Benedict, that although not

mandated, the preferred procedure is for a trial court to comply with Crim.R. 11(C)

even for pleas entered to petty misdemeanor offenses. Benedict at ¶ 10. Here, the

court partially followed preferred procedure by informing Jones-McFarlane of the

following constitutional rights she would be giving up in pleading guilty: the (1)

right to a trial; (2) right to call and confront witnesses; (3) right to be presumed

innocent; (4) right to have the prosecution prove every element of each charge; and

(5) right to remain silent.

      D. The trial court did not comply with Crim.R. 11(E).

               Although the trial court was not required to inform Jones-

McFarlane of the possible sentence associated with her plea, we find that the trial

court otherwise failed to satisfy Crim.R. 11(E). ‘“[T]o satisfy the requirement of

informing a defendant of the effect of a plea [under Crim.R. 11(E)], a trial court

must inform the defendant of the appropriate language under Crim.R. 11(B).”’

Buckwald at ¶ 22, quoting Jones at paragraph two of the syllabus. Reviewing the

record of the plea hearing, it is evident that the trial court did not inform Jones-

McFarlane prior to accepting her plea that the plea of guilty is a complete

admission of guilt, as set forth in Crim.R. 11(B). Thus, Jones-McFarlane was not

informed of the effect of her plea as Crim.R. 11(E) requires.

               Where there is a “complete failure to comply with the rule,” a

prejudice analysis is not necessary; the plea must be vacated. Clark, 2008-Ohio-

3748, 893 N.E.2d 462, at ¶ 32. The trial court’s failure to mention any of the
language in Crim.R. 11(B) regarding the effect of Jones-McFarlane’s guilty plea was

a complete failure to comply with the rule. Buckwald at ¶ 46. Accordingly, Jones-

McFarlane’s plea must be vacated. Id.; Maple Hts. v. Mohammad, 8th Dist.

Cuyahoga No. 108060, 2019-Ohio-4577, ¶ 16.

              Jones-McFarlane’s guilty plea is vacated. Judgment is reversed,

plea vacated, and remanded for further proceedings consistent with this opinion.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.

_________________________
MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
