[Cite as State v. Allen, 2018-Ohio-586.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105757



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.


                                SHARONIKA D. ALLEN
                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                         Case Nos. CR-15-600080-A and CR-16-607905-B

        BEFORE:           Blackmon, J., S. Gallagher, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                       February 15, 2018
ATTORNEY FOR APPELLANT

David L. Doughten
David L. Doughten, LPA
4403 St. Clair Avenue
Cleveland, Ohio 44103



ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Holly Welsh
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Defendant-appellant, Sharonika D. Allen (“Allen”), appeals from her guilty

pleas in two cases. Allen assigns the following error for our review:

       [Allen’s] guilty plea was not entered knowingly, intelligently and
       voluntarily as the trial court misinformed her that the charged offense
       included mandatory time, resulting in the appellant accepting a plea to a
       lesser offense which did not require a mandatory term of incarceration.

       {¶2} Having reviewed the record and pertinent law, we affirm.        The apposite

facts follow.

       {¶3} On October 23, 2015, Allen was indicted in Case No. CR-15-600080 for one

count of escape in violation of R.C. 2921.34(A)(3) for failing to report as required under

the terms of postrelease control ordered in Case No. CR-11-548831. On July 12, 2016,

Allen and two codefendants were also indicted in Case No. CR-16-607905.             As is

relevant herein, Allen was charged with four counts of trafficking in persons in violation

of R.C. 2905.32 (Counts 1, 4, 9 and 17), three counts of compelling prostitution in

violation of R.C. 2907.21(A)(2)(A) (Counts 2, 10, and 18), five counts of kidnapping in

violation of R.C. 2905.01(A)(2) (Counts 3, 6, 11, 16, and 19), one count of promoting

prostitution in violation of R.C. 2907.22(A)(2) (Count 5), one count of rape in violation

of R.C. 2907.02(A)(2) (Count 13), and one count of robbery in violation of R.C.

2911.02(A)(2) (Count 15).

       {¶4}     Allen subsequently entered into a plea agreement with the state whereby

she pled guilty to the escape charge in Case No. CR-15-600080, and one count of

trafficking in persons in Case No. CR-16-607905, that was amended from a first-degree
felony to a second-degree felony (reduced Count 1).           All remaining charges were

dismissed.

       {¶5} Allen was subsequently sentenced to a six-month term for escape, to be

served consecutively to an eight-year term for attempted trafficking in persons.

                                        Guilty Plea

       {¶6} In her sole assigned error, Allen argues that her guilty plea was not

knowingly and voluntarily made because the trial court improperly informed Allen that as

originally charged, first-degree felony trafficking in persons carried a mandatory term of

incarceration, and that by pleading to a lesser included offense that did not require a

mandatory sentence, she could also avail herself of programs in the prison and possibly

judicial release.

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

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

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

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

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

       (a) Determining that the defendant is making the plea voluntarily, with
       understanding of the nature of the charges and of the maximum penalty
       involved, and, if applicable, that the defendant is not eligible for probation
       or for the imposition of community control sanctions at the sentencing
       hearing.

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

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

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

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

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

       defendant cannot be compelled to testify against himself or herself.

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

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

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

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

2011-Ohio-2391, ¶ 4.

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

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

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

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

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

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31; State v.

Hedenberg, 8th Dist. Cuyahoga No. 102112, 2015-Ohio-4673, ¶ 12; Veney at ¶ 14.

“Substantial   compliance    means    that   under    the   totality of   the circumstances

the defendant subjectively understands the implications of his plea and the rights he is

waiving.” Id., citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If
it “appears from the record that the defendant appreciated the effect of his plea and his

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

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

Nero at 108-109.

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

right to be informed of the “maximum penalty involved.”                     State v. Tutt,

2015-Ohio-5145, 54 N.E.3d 619, ¶ 19 (8th Dist.).      Therefore, where a defendant faces a

mandatory prison sentence as a result of a guilty or no contest plea, the trial court must

determine, prior to accepting a plea, that the defendant understands that he or she is

subject to a mandatory prison sentence and that as a result of the mandatory prison

sentence, he or she is not eligible for probation or community control sanctions.        Id. at

¶ 19.

        {¶12}   In this matter, Allen was originally indicted for trafficking in persons in

violation of R.C. 2905.32(A)(1), a first-degree felony. R.C. 2905.32(E).

        {¶13}   Under R.C. 2905.32:

        Whoever violates this section is guilty of trafficking in persons, a felony of
        the first-degree. Notwithstanding division (A)(1) of section 2929.14 of the
        Revised Code [setting forth the range of prison terms for first-degree
        felonies], the court shall sentence the offender to a definite prison term of
        ten, eleven, twelve, thirteen, fourteen, or fifteen years. (Emphasis added.)
        {¶14} The Ohio Legislative Service states:

        [H.B. 262] raises the level of offense for trafficking in persons from a
        felony of the second degree to a felony of the first degree. A prison term is
        not mandatory for a first or second degree felony unless a statute expressly
        requires one. Normally, a prison term, if one is imposed, is for a definite
        number of years ranging from 2 to 8 for a second degree felony and from 3
       to 11 for a first degree felony. Under the act, a sentencing court must
       impose a mandatory prison term of 10, 11, 12, 13, 14, or 15 years on a
       person convicted of trafficking in persons.

See https://www.lsc.ohio.gov/analyses 129/12-hb262-129.pdf (accessed January 2018).

Id., citing to R.C. 2905.32 and 2929.13(F)(4).

       {¶15} R.C. 2929.13(F) in turn states:

       Notwithstanding divisions (A) to (E) of this section, the court shall impose
       a prison term or terms under * * *:

       (4) A felony violation of section * * * 2905.32.

       {¶16}     As explained by the Ohio State Bar Association:

       In June 2012, the Ohio Legislature passed House Bill 262, Ohio’s Safe

       Harbor Law, to strengthen the trafficking in persons statute. This new

       statute raised the penalty for trafficking in persons from a second degree to

       a first degree felony with a mandatory prison term of 10 to 15 years.

See https://www.ohiobar.org/OhioLawyer/Pages/ Human-trafficking-in- Ohio (accessed

January 2018).

       {¶17}     In accordance with the foregoing, this record demonstrates that Allen was

subject to mandatory imprisonment under Count 1 as originally charged, because it

alleged first-degree felony trafficking in persons.   However, after the amendment of this

count, Allen was charged with attempted trafficking in persons. By operation of the

attempt statute, R.C. 2923.02(E), the charge became an offense of the next lower degree,

i.e., a second-degree felony.   R.C. 2923.02(E).

       {¶18} Prior to entering her guilty plea, the trial court advised Allen as follows:
       THE COURT: That is a second degree felony. So let’s talk about
       punishment. First of all, second degree felonies carry a presumption that
       you are going to prison. And so it’s not a mandatory prison sentence, but
       the courts are expected to hand out a prison sentence unless you can
       shoulder your burden to prove that seriousness factors are outweighed by
       factors indicating less serious conduct and factors indicating likely to
       commit crime in the future are outweighed by factors indicating you are less
       likely to commit crime in the future. Understood?

        THE DEFENDANT: Yes.

       {¶19} In accordance with the foregoing, we conclude that the trial court did not err

when it advised Allen that she had been subject to mandatory imprisonment under Count

1 as originally charged, but the amendment of this count to attempted trafficking

subjected her to the ordinary penalties imposed on a second-degree felony.       Therefore,

we conclude that the trial court substantially complied with its duty to advise Allen of the

maximum penalty she faced. There is no basis upon which to conclude that the guilty

plea was not made knowingly, intelligently, and voluntarily.

       {¶20}   The assigned error is not well-taken.

       {¶21}    Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
