[Cite as State v. Kapsouris, 2019-Ohio-4734.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2019-L-019
        - vs -                                    :

MICHAEL N. KAPSOURIS,                             :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
001180.

Judgment: Vacated and remanded.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Michael N. Kapsouris, appeals the January 29, 2019 judgment

of the Lake County Court of Common Pleas sentencing him to seven years

imprisonment on Count One, burglary, to which Mr. Kapsouris pleaded guilty, and,

concurrently, twenty-four months on Count Two, attempted burglary, to which Mr.

Kapsouris pleaded guilty by way of North Carolina v. Alford, 400 U.S. 25 (1970).
      {¶2}     Prior to entering his guilty pleas, both the trial court and defense counsel

erroneously informed Mr. Kapsouris that by entering the Alford plea he would preserve

his right to appeal certain presentence motions. On appeal, the state and Mr. Kapsouris

agree that his Alford plea on Count Two was not knowingly, voluntarily, and intelligently

made due to erroneous instruction by the court and defense counsel as to the

appealability of certain pre-trial motions. The only remaining issue is whether the error

also affects Mr. Kapsouris’ guilty plea to Count One.

      {¶3}     For the reasons more fully set forth below, we find that it does and,

accordingly, vacate Mr. Kapsouris’ plea and sentences on both Counts One and Two

and remand the matter to the Lake County Court of Common Pleas for further

proceedings.

      {¶4}     The charges in this case stem from two incidents in Concord Township in

October 2017. First, a residence on Ravenna Rd. was burglarized; it appeared the

burglar forced entry into the residence with a tire iron or pry bar. The home’s security

system captured images of the burglary occurring and of the burglar getting into a

vehicle registered to Mr. Kapsouris. Mr. Kapsouris’ parole officer and Mr. Kapsouris’

aunt later viewed the footage, and each identified the burglar as Mr. Kapsouris.

      {¶5}     Around the same time on the same day, another resident on Ravenna Rd.

reported an attempted forced entry at his residence. The pry marks on the door frames

of both houses appeared to be similar, though no images of the attempted burglar at the

second residence were captured.

      {¶6}     After further investigation, Mr. Kapsouris was brought into custody and his

cell phone and vehicle were impounded and searched. Detectives found a tire iron in




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the trunk of the vehicle, which was compared to the pry marks and paint samples

collected from both homes. The crime lab issued two reports; one found that the pry

bar marks of the first burglarized house definitively matched the tire iron found in Mr.

Kapsouris’ vehicle.   However, no definitive results were able to be obtained from

comparing the tire iron to the marks at the second attempted burglary residence; in fact,

the crime lab report labeled “17-1788” determined that the known paint sample from the

residence and the questioned paint sample on the tire iron “exhibited dissimilar

characteristics” and “[t]herefore, the known sample can be eliminated as being the

source of the questioned paint.”

      {¶7}   Detectives from the Lake County Sheriff’s Office Mirandized Mr. Kapsouris

and conducted an interview in which they showed him the video of the first burglary.

Mr. Kapsouris admitted to committing the subject burglary and attempted burglary, as

well as several other burglaries and attempted burglaries in different counties.

      {¶8}   In December 2017, Mr. Kapsouris was indicted on one count of Burglary,

in violation of R.C. 2911.12(A)(2), a felony of the second degree, and one count of

Attempted Burglary, in violation of R.C. 2923.02, a felony of the third degree. He was

appointed counsel from the public defender’s office. However, the public defender was

removed shortly thereafter due to a conflict and private counsel was appointed.

      {¶9}   On December 9, 2017, a 150-day limited waiver of speedy trial was filed.

In April 2018, defense counsel filed a Motion to Suppress certain statements that Mr.

Kapsouris made to law enforcement. After a Suppression Hearing, the motion was

denied. On July 20, 2018, defense counsel motioned to dismiss, alleging a violation of

speedy trial. The court cited four tolling events and denied the motion.




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       {¶10} On August 28, 2018, the court conducted a hearing to determine if Mr.

Kapsouris was rejecting the State’s plea agreement, which offered a recommendation of

seven years on Count One to run concurrent with any time imposed on Count Two and

to remain silent as to the post-release-control time, if Mr. Kapsouris would plead guilty

to both counts. At that hearing, defense counsel renewed the motion to dismiss and the

trial court again rejected the motion.     Then, after some deliberation, Mr. Kapsouris

changed his plea and entered a guilty plea to Count One and a guilty plea by way of

Alford on Count Two. It is undisputed that at that hearing both defense counsel and the

court incorrectly advised Mr. Kapsouris that the Alford plea would protect his right to

appeal the trial court’s ruling on Mr. Kapsouris’ previously raised Motion to Suppress

and the Motion to Dismiss.

       {¶11} The following day, Mr. Kapsouris, pro se, wrote a letter to the court stating

“since I started thinking about it[,] I wish to withdraw my pleas of guilty,” which the court

construed as a Motion to Vacate his guilty pleas. The court held a hearing to address

that motion, as well as the results of Mr. Kapsouris’ competency evaluation and his

request to replace his defense counsel. In support of his motion to vacate his guilty

pleas, Mr. Kapsouris stated that his defense counsel failed to show him, prior to his

change of plea, the crime lab report 17-1788, which concluded the paint samples of the

second residence did not match those found on the tire iron. Defense counsel stated he

had shown him the report prior to his change of plea. Ultimately, the court denied his

request to withdraw his guilty pleas but did grant a request for new counsel. The court

also found Mr. Kapsouris competent. The trial judge then retired, and the case was

transferred to a different judge and reset for sentencing.




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      {¶12} Mr. Kapsouris’ newly appointed defense counsel filed a Motion to

Reconsider Defendant’s Request to Vacate or Withdraw Plea, citing prior counsel’s

alleged failure to supply him with full discovery, namely, the crime lab report 17-1788.

In response, the State filed a Motion for Continuance of the Sentencing Hearing to

further review the record from the Change of Plea Hearing, but the court denied Mr.

Kapsouris’ motion without a hearing.

      {¶13} At sentencing, Mr. Kapsouris again requested the opportunity to withdraw

his pleas and was again denied. The court sentenced him to seven years on Count

One and 24 months on Count Two, to be served concurrently.

      {¶14} Mr. Kapsouris now appeals from that sentence, assigning three

assignments of error for our review.

      {¶15} [1.] The defendant-appellant was denied effective assistance of
            counsel in violation of the Sixth and Fourteenth Amendments of the
            United States [Constitution] and Article 1 Section 10 of the Ohio
            Constitution.

      {¶16} Under this assignment of error, Mr. Kapsouris presents three issues for

our review.

      {¶17} [a.] Mr. Kapsouris alleges his counsel at the time of his guilty pleas
            was ineffective for incorrectly advising him that a guilty plea by way
            of North Carolina v. Alford would preserve his right to appeal the
            trial court’s denial of his Motion to Dismiss and Motion to Suppress.

      {¶18} [b.] Mr. Kapsouris alleges trial counsel was ineffective because of
            his failure to provide him with pertinent discovery that would have
            affected his decision as to whether to plead guilty.

      {¶19} [c.] The combination of errors by trial counsel resulted in Mr.
            Kapsouris being deprived on his right to the effective assistance of
            counsel.

      {¶20} Mr. Kapsouris’ second assignment of error states:




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      {¶21} [2.] The defendant-appellant’s pleas of guilty were not made
            knowingly, voluntarily and intelligently, thus violating his rights
            guaranteed by the Fifth, Sixth and Fourteenth Amendments to the
            United States [Constitution] and Article 1 Section 10 of the Ohio
            Constitution.

      {¶22} Under this assignment of error, Mr. Kapsouris presents two issues for our

review.

      {¶23} [a.] The ineffectiveness of trial counsel invalidated the voluntariness
            of the Guilty by Way of North Carolina v. Alford Plea that Mr.
            Kapsouris entered on Count Two.

      {¶24} [b.] The trial court’s incorrect advisement that a guilty plea made
            pursuant to North Carolina v. Alford would preserve Mr. Kapsouris’s
            constitutional right to appeal the ruling on the Motion to Suppress
            and Motion to Dismiss, negated the [requisite] knowledge,
            voluntariness and intelligence of Mr. Kapsouris’s plea of guilty on
            Count Two.

      {¶25} Mr. Kapsouris’ third assignment of error states:

      {¶26} [3.] The trial court abused its discretion in denying the defendant-
            appellant’s motion to withdraw his guilty pleas prior to sentencing.

      {¶27} Under this assignment of error, Mr. Kapsouris presents two issues for our

review.

      {¶28} [a.] The trial court committed an abuse of discretion during the
            December 18, 2018 Competency Hearing, in denying the request
            Mr. Kapsouris made to vacate or withdraw his guilty plea.

      {¶29} [b.] The sentencing court committed an abuse of discretion in
            denying the request Mr. Kapsouris made to vacate or withdraw his
            guilty plea, which was renewed in a Motion to Reconsider, filed by
            newly appointed counsel on January 7, 2019.

      {¶30} However, both Mr. Kapsouris and the State agree that Mr. Kapsouris was

erroneously advised by the trial court and defense counsel regarding his rights related

the Alford plea such that Mr. Kapsouris’ plea on Count Two was not knowingly,




                                           6
voluntarily, and intelligently made, and thus, should be vacated and the case remanded.

We agree.

       {¶31} “When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527 (1996). “A plea entered

pursuant to Alford is a plea that permits a defendant to plead legal guilt, yet maintain his

or her factual innocence.” State v. Bilicic, 11th Dist. Ashtabula No. 2017-A-0066, 2018-

Ohio-5377, ¶7. The Ohio Supreme Court has “‘found no constitutional bar to accepting

a guilty plea in the face of an assertion of innocence provided a defendant voluntarily,

knowingly[,] and understandingly consents to sentencing on a charge.’”           Id. at ¶8,

quoting State v. Post, 32 Ohio St.3d 380 (1987).

       {¶32} “‘In considering whether a guilty plea was entered knowingly, intelligently

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

de novo review of the record to ensure that the trial court complied with constitutional

and procedural safeguards.’” State v. Siler, 11th Dist. Ashtabula No. 2010-A-0025,

2011-Ohio-2326, ¶12 quoting State v. Eckler, 4th Dist. Adams No. 09CA878, 2009-

Ohio-7064, ¶48.

       {¶33} Before accepting a guilty plea, a trial court must abide by Criminal Rule

11. Crim.R. 11(C)(2) requires the court to address the defendant personally and to

“inform[ ] the defendant of and determin[e] that the defendant understands the effect of

the plea of guilty or no contest * * *.” Crim.R. 11(C)(2)(b). The Ohio Supreme Court

has “held that with respect to the nonconstitutional notifications required by Crim.R.




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11(C)(2)(a) and 11(C)(2)(b), substantial compliance is sufficient.” State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, ¶14, citing State v. Stewart, 51 Ohio St.2d 86 (1977).

“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.” State v. Nero, 56 Ohio St.3d 106, 108 (1990). Furthermore, “a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made must show a prejudicial effect. The test is whether the plea would have

otherwise been made.”      (Citations omitted.)   Id., citing Stewart, supra, at 93, and

Crim.R. 52(A).

      {¶34} Here, Mr. Kapsouris entered a plea of guilty on Count One and an Alford

plea of guilty on Count Two. Defense counsel and the court informed Mr. Kapsouris

that by pleading by way of Alford he preserved his right to appeal the Motion to

Suppress and Motion to Dismiss.       This, however, is inaccurate.     As this court has

recently held, “[a]n Alford plea is procedurally indistinguishable from a guilty plea and

waives all alleged errors, including the denial of a motion to suppress, committed at trial

except those errors that may have affected the entry of a defendant's plea pursuant to

Crim.R. 11.” Bilicic, supra, at ¶27, citing State v. Leasure, 6th Dist. Lucas No. L-05-

1260, 2007-Ohio-100, ¶7. Therefore, it cannot be said that Mr. Kapsouris understood

the effect of the plea and the rights he was waiving on Count Two, as required by

Crim.R. 11.

      {¶35} The remaining issue is whether the error also meant Mr. Kapsouris’ guilty

plea to Count One was not knowingly, voluntarily, and intelligently made, a point on

which the parties disagree.




                                            8
       {¶36} The State argues that Mr. Kapsouris has no expectation that he would be

able to appeal any decision regarding Count One and, thus, his guilty plea to Count One

was entered knowingly, voluntarily, and intelligently. The State cites the change of plea

hearing at which the court stated:

       {¶37} And I need to clarify here, I think, just because it’s a topic that was
             discussed earlier, you will be waiving and giving up your right to
             appeal various decisions made by the Court as it related to Count
             1, but because you’re pleading by way of North Carolina v. Alford
             you will be preserving your right to appeal those decisions as to
             Count 2. (Emphasis added.)

       {¶38} Mr. Kapsouris argues that the error prejudicially affected the decisions he

made with respect to both pleas. Specifically, he points to the plea bargain, in which the

State offered to recommend a sentence of seven years in prison on the entirety of the

case. He notes that at the time of the plea, the facts “inexorable link[ed] the two counts

as essentially a continuing course of criminal conduct.” Accordingly, he argues, it would

have been strategically unsound to plead guilty to Count One, while contesting Count

Two.

       {¶39} He also argues that had he decided not to enter the Alford plea on Count

Two, he would have maintained his plea of not guilty and instead had a trial on both

counts. In support, he notes that, prior to changing his plea, he made it clear that he

would have pleaded guilty to Count One if Count Two was dismissed.             Finally, he

argues that with a remand on only Count Two he could now face additional penalties on

Count Two, defeating the purpose of the plea agreement.

       {¶40} The record supports a finding that Mr. Kapsouris only entered into the

guilty pleas because he believed he was able to appeal the pre-trial motions. At the

August 28, 2018 hearing, Mr. Kapsouris stated:



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      {¶41} THE DEFENDANT: I reject the offer. I didn’t commit the attempted
            burglary, so I’m going to trial.

      {¶42} THE COURT: Okay. Well, let me just explore that for a moment. If,
            and I’m not suggesting, this isn’t the offer, obviously, but if you were
            to plead to the one count would that make a difference to you?

      {¶43} THE DEFENDANT: It most certainly does. And I requested that and
            they rejected the offer several times. So, I’m not pleading guilty
            exactly to the indictment, which I didn’t do.

      {¶44} THE COURT: Okay. So, again I’m not the person here that makes
            these calls. But I want to make sure we get – since you’re looking
            at such a significant difference –

      {¶45} THE DEFENDANT: I would plead guilty to one count.

      {¶46} * * *

      {¶47} THE COURT: And would plead with that recommendation coming
            from the State of 7 years?

      {¶48} THE DEFENDANT: Right.

      {¶49} The court then recessed for the state to reevaluate its offer.

      {¶50} Prior to being informed of the availability of an Alford plea, and

erroneously informed of its implications, Mr. Kapsouris indicated his willingness to plead

guilty to the burglary if Count Two was dropped but maintained he would go to trial on

both counts if Count Two remained. Eventually, after unrecorded deliberations, Mr.

Kapsouris agreed to plead guilty to Count One and plead guilty by way of Alford on

Count Two. Importantly, prior to changing his plea he specifically requested that his

counsel renew his motion to dismiss:

      {¶51} [DEFENSE COUNSEL]: * * * My client has asked me to address
            a[n] issue prior to him changing his plea.

      {¶52} THE COURT: Sure. Go ahead.

      {¶53} [DEFENSE COUNSEL]: There was a hearing we had a while back
            in which the issue of speedy trial was raised and there was a
            decision made on that. Mr. Kapsouris did want me to renew that


                                           10
             request for purposes of the record, the arguments would be the
             same arguments I made previously.

      {¶54} I have explained to Mr. Kapsouris that any Appellate issue such as
            speedy trial or suppression, that those, you know, could be relevant
            as to the count that he pleas via way of Alford on and that wouldn’t
            be relevant to the other charge, but again for purposes of the
            record I would like to renew the request for dismissal by speedy
            trial, which was previously made and previously denied.

      {¶55} After asking both sides to reiterate their arguments on the matter, the

court found no change in law or circumstances and denied the motion. By raising the

matter again prior to changing his plea, Mr. Kapsouris indicates his continuing

disagreement with the court’s decision and efforts to fight it even as he was changing

his plea. Thus, the record supports Mr. Kapsouris’ contention that he entered into the

guilty pleas only because he believed he had the right to appeal the pre-trial motions.

      {¶56} Accordingly, Mr. Kapsouris’ second assignment of error is well taken, and,

therefore, his first and third assignments of error are rendered moot.

      {¶57} Mr. Kapsouris’ plea and sentence as to Count One, Burglary, and Count

Two, Attempted Burglary, are hereby vacated and the matter is remanded to the Lake

County Court of Common Pleas for further proceedings.




TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




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