[Cite as State v. Jackson, 2016-Ohio-7891.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104108




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 JIMMIE M. JACKSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-596651-A

        BEFORE: Laster Mays, J., Keough, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 23, 2016
                               -i-
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy McGinty
County Prosecutor

By: Denise J. Salerno
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

      {¶1} Defendant-appellant, Jimmie M. Jackson (“Jackson”), appeals his conviction

and asks this court to vacate his sentence and remand to the trial court for new

proceedings.   We affirm.

      {¶2} Jackson was indicted on eight counts. The first four counts are related to

victim one, and Counts 5 through 8 are related to victim two. They are as follows:

      Counts 1 and 2:       Rape, a first-degree felony, in violation of
                            R.C. 2907.02(A)(2) with sexually violent predator
                            specification under R.C. 2941.148(A);

      Count 3:              Aggravated Burglary, a first-degree felony, in violation
                            of R.C. 2911.11(A)(1);

      Count 4:              Aggravated Burglary, a first-degree felony, in violation
                            of R.C.2911.11(A)(2);

      Count 5:              Kidnapping, a first-degree felony, in violation of R.C.
                            2905.01(A)(4);

      Count 6:              Rape, a first-degree felony, in violation of
                            R.C. 2907.02(A)(2) with sexually violent predator
                            specification under R.C. 2941.148(A);

      Count 7:              Aggravated Burglary, a first-degree felony, in violation
                            of R.C. 2911.11(A)(1); and

      Count 8 :             Kidnapping, a first-degree felony, in violation of R.C.
                            2905.01(A)(4).

      {¶3} As part of a plea agreement, Jackson pleaded guilty to Counts 1 and 6.

During this proceeding, the trial court informed Jackson of his constitutional rights and
the minimum and maximum sentence he could receive.               At sentencing, the court

sentenced Jackson to 41-years-to-life imprisonment. As a result, Jackson has filed this

timely appeal assigning one error for our review:

       I.     The trial court committed plain error in failing to inform appellant of
              the possible maximum term of imprisonment in compliance with
              Crim.R. 11(C)(2)(a).

I.     Standard of Review

       {¶4} “An appellate court reviews de novo whether the trial court accepted a plea in

compliance with Crim.R. 11(C).” State v. Hinton, 8th Dist. Cuyahoga No. 102710,

2015-Ohio-4907, ¶ 20, quoting State v. Schmick, 8th Dist. Cuyahoga No. 95210,

2011-Ohio-2263, ¶ 6.    “We are required to review the totality of the circumstances and

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

“Crim.R. 11(C) governs the process by which a trial court must inform a defendant of

certain constitutional and nonconstitutional rights before accepting a felony plea of guilty

or no contest.” Id. “The underlying purpose of Crim.R. 11(C) is to convey certain

information to a defendant so that he can make a voluntary and intelligent decision

regarding whether to plead guilty.” Id.

II.    Law and Analysis

       {¶5} In Jackson’s sole assignment of error, he argues that the trial court committed

plain error in failing to inform him of the possible maximum term of imprisonment in

compliance with Crim.R. 11(C)(2)(a).

       Under Crim.R. 11(C), prior to accepting a guilty plea in a felony case, the
       trial court must conduct an oral dialogue with the defendant to ensure that
       the plea is voluntary, that the defendant understands the nature of the
       charges and the maximum penalty involved, and that the defendant
       understands the constitutional right[s] he or she waives by pleading guilty,
       including the rights to 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.

Id. at ¶ 21.

       {¶6} Jackson argues that his nonconstitutional right to have the judge explain the

maximum penalty involved was violated.

       When the appellant raises a violation of a nonconstitutional right found in
       Crim.R. 11(C)(2)(a) and (b), however, we look for substantial compliance.
       Under this standard, a slight deviation from the text of the rule is
       permissible; so long as the totality of the circumstances indicates that the
       defendant subjectively understands the implications of his plea and the
       rights he is waiving, the plea may be upheld.

Id. at ¶ 23.

       When the trial court does not substantially comply with Crim.R. 11 with
       regard to a nonconstitutional right, reviewing courts must determine
       whether the trial court partially complied or completely failed to comply
       with the rule. If the trial court partially complied, the plea may be vacated
       only if the defendant demonstrates a prejudicial effect. Prejudice in this
       context requires that the defendant demonstrate that but for the error, there
       is a reasonable probability that he or she would not have pleaded guilty.

Id. at ¶ 24.

       {¶7} Crim.R. 11(C)(2)(a) and (b), which outline the nonconstitutional

notifications, state:

       In felony cases the court may refuse to accept a plea of guilty or a plea of no
       contest, and shall not accept such plea without first addressing the
       defendant personally and doing all of the following:
       (a) Determining that the defendant is making the plea voluntarily, with
       understanding of the nature of the charge and of the maximum penalty
       involved, and, if applicable, that the defendant is not eligible for probation *
       * *.

       (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.

       {¶8} The trial court informed Jackson of the maximum penalty involved with

pleading guilty.

       COURT:          Based upon the statements of the prosecuting attorney as
                       well as your lawyer I believe it’s your intention for you to
                       plead guilty to the amended Count 1, rape, with a sexually
                       violent predator specification attached, that is a felony of the
                       first-degree in violation of 2907.02(A)(2) and
                       2941.14(A)(8)(a). That carries a possible time from ten
                       years in prison up to life in prison; do you understand that?

       JACKSON:        Yes.

       COURT:          And a fine of up to $20,000. I also believe it’s your
                       intention to plead guilty to Count 6, the amended Count 6
                       rape, that is a felony of the first-degree in violation of
                       2907.02(A)(2). That carries a possible penalty from three
                       to 11 years in prison and a fine of up to $20,000. Do you
                       understand that?

       JACKSON:        Yes.
       COURT:          If I were to run these counts one after the other or
                       consecutively, you are looking at anywhere from 21 years
                       — I’m sorry — anywhere from 13 years — hold on. Let
                       me say that again. Just make sure. Anywhere from 13
                       years up to life, and a fine, again, of up to $40,000; do you
                       understand that?

       JACKSON:        Yes.

       COURT:          If this court imposes a prison term upon the completion of
                       your prison term the State of Ohio Adult Parole Authority
                       and not this court shall have a mandatory five-year
                       supervision under what is called postrelease control. * * *
(Tr. 15-17.)

       {¶9} The court sentenced Jackson to 41 years in prison. As shown previously, the

court informed Jackson that he could receive 13 years to life. “The defendant’s right to

be informed of the maximum possible penalty is a nonconstitutional right. Therefore, a

substantial-compliance rule applies.”        State v. Thomas, 197 Ohio App.3d 176,

2011-Ohio-6073, 966 N.E.2d 939, ¶ 33 (8th Dist.).

       If the trial judge partially complied with its duty to inform the defendant of
       the maximum penalty involved, the plea may be vacated only if the
       defendant demonstrates a prejudicial effect. Prejudicial effect is established
       if the defendant can demonstrate that he would not have entered the plea
       had the trial court literally complied with Crim.R. 11(C)(2).

Id. at ¶ 34.

       {¶10} However, the trial judge fully complied with the law by stating clearly the

maximum penalty Jackson could receive.          So there is no prejudicial effect.      His

sentence of 41 years falls within the range of 13 years to life.     See State v. Scott, 8th

Dist. Cuyahoga No. 103696, 2016-Ohio-5929, ¶ 6 (“a sentence is authorized by law if it is

within the statutory range of available sentences.”)            Therefore, Jackson’s sole

assignment of error is overruled.

       {¶11} Judgment is affirmed.

       It is ordered that the appellee recover from 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.



__________________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
