[Cite as State v. Hollobaugh, 2012-Ohio-2620.]


                                       COURT OF APPEALS
                                     MORGAN COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                         JUDGES:
STATE OF OHIO                                    :       Hon. W. Scott Gwin, P.J.
                                                 :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee      :       Hon. John W. Wise, J.
                                                 :
-vs-                                             :
                                                 :       Case No. 11-AP-0006
ERIC HOLLOBAUGH                                  :
                                                 :
                    Defendant-Appellant          :       OPINION




CHARACTER OF PROCEEDING:                             Criminal appeal from the Morgan County
                                                     Court of Common Pleas, Case No. 10-CR-
                                                     0007

JUDGMENT:                                            Vacated and Remanded


DATE OF JUDGMENT ENTRY:                              June 11, 2012



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

MARK HOWDYSHELL                                      DEBORAH LAMNECK
Prosecuting Attorney                                 Gottlieb, Johnston, Beam & Dal Ponte
19 East Main Street                                  2640 Glenn Circle
McConnelsville, OH 43756                             Zanesville, OH 43701-9408
[Cite as State v. Hollobaugh, 2012-Ohio-2620.]


Gwin, P.J.

        {¶1}    Defendant Eric Hollobaugh appeals a judgment of the Court of Common

Pleas of Morgan County, Ohio, which accepted his plea of guilty to three counts of

trafficking in drugs in the vicinity of a juvenile in violation of RC.2925.03. Appellant

assigns a single error to the trial court:

        {¶2}    I.   THE      TRIAL      COURT   ERRED   WHEN     IT   ACCEPTED      THE

APPELLANT’S GUILTY PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY,

AND VOLUNTARILY MADE.”

        {¶3}    At the change of plea hearing, the court engaged in a Crim. R. 11 colloquy

before accepting appellant’s guilty plea. The court reviewed appellant’s constitutional

rights and ascertained appellant had no mental or physical impairments and was not

under the influence of any alcohol or drug. The court explained the charges against

appellant, advising him that “***you could be sentenced to prison for a definite term of

either two, three, four, five, six, seven, or eight years on each count and fined up to

$15,000.00 on each count***”. The court also advised appellant it could order that he

serve his prison sentences consecutively.

        {¶4}    Appellant signed a written waiver of rights, which stated, among other

things, that he understood the court could impose more than a minimum prison term, it

could impose a maximum term, and it could run the sentences consecutively. The

waiver also stated the court “may” impose a prison term rather than community control.

The court deferred sentencing until a pre-sentence investigation was completed.
Morgan County, Case No. 11-AP-0006                                                      3


       {¶5}   The offenses to which appellant pled guilty carry a mandatory prison term

and appellant was not eligible for probation or early release.        The court informed

appellant of this at the sentencing hearing.

       {¶6}   Crim. R. 11 (C) states in pertinent part:

       (2) In felony cases the court may refuse to accept a plea of guilty or a plea

       of no contest, and shall not accept a plea of guilty or no contest 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 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.

              A defendant’s plea in a criminal case must be made knowingly,

intelligently, and voluntarily, and if it is not, enforcement of the plea 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.

              The court is required to discuss both constitutional and non-

constitutional rights before accepting a guilty plea.      A court’s discussion of

constitutional rights must be in strict compliance with the Rule. See, e.g., 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), paragraph one of the

syllabus. However, a court must only substantially comply with the Rule in
Morgan County, Case No. 11-AP-0006                                                   4

ensuring the defendant understands his or her non-constitutional rights. State v.

Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, citing State v.

Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Substantial compliance

has been defined to mean under the totality of the circumstances the defendant

subjectively understands the implication of his plea and the rights he is waiving.

Nero at 108.

      {¶7}     Appellant argues the court did not substantially comply with Crim. R. 11

because at the time it accepted his plea, it had misled him into believing he could be

eligible for probation or parole when in fact he faced a mandatory sentence.

      {¶8}     In State v. Stewart, 51 Ohio St. 2d 86, 364 N.E. 2d 1163 (1977), the

Supreme Court reviewed a case wherein the defendant was charged with two counts of

aggravated murder with specifications, kidnapping, and aggravated robbery. The

defendant pled to the lesser included offense of murder and the other charges were

dismissed. The defendant was not informed he was not eligible for probation, but the

Supreme Court found the defendant subjectively knew he would not be eligible for

probation, and further, he had not demonstrated prejudice.

      {¶9}     In Nero, supra the Supreme Court of Ohio found substantial compliance

with Crim.R. 11(C)(2)(a) when the record clearly showed defendant knew that he was

going to be incarcerated and even asked for time to straighten out his affairs.

      {¶10} In State v. Abuhashish, 6th Dist. No. WD–07–048, 2008–Ohio–3849, the

court found substantial compliance because the prosecution mentioned the mandatory

sentence at the plea hearing when it asked the court to revoke the defendant’s bond,

and because the written guilty plea correctly stated the offense carried a mandatory
Morgan County, Case No. 11-AP-0006                                                    5

sentence. Id. ¶35. But see, State v. Wilson, 55 Ohio App. 2d 64, 379 N.E.2d 273, (1st

Dist. 1978) wherein the court of appeals found the Rule requires an oral dialogue

between the court and the defendant, and a written plea is simply not an adequate

substitute.

       {¶11} In State v. Fink, 11th Dist. No. 2006-A-0035, 2007-Ohio-5220, the Court of

Appeals for Ashtabula County found substantial compliance although the court

mistakenly advised the defendant he was technically eligible for probation. The court

found the defendant was subjectively aware he would not be sentenced to probation

when the court informed him a waiver of the pre-sentence investigation report precluded

probation. The defendant had been charged with sixty counts of rape, each with the

specification of a victim less than ten years of age, thirty-seven counts of pandering

obscenity involving a minor, fourth degree felonies, thirty-seven counts of pandering

obscenity involving a minor, second degree felonies, and twenty-two counts of

pandering sexually oriented matters involving a minor. We find as in Stewart, supra, the

severity of the charges alone might convince a defendant he was not going to avoid

prison.

       {¶12} Here the offenses charged were not as serious as in Stewart, and unlike

Abuhashish, the guilty plea appellant signed does not state the offenses carry a

mandatory sentence.

       {¶13} In State v. Howard, 2nd Dist. No. 06–CA–29, 2008–Ohio–419, the Second

District found the defendant could not have understood the effect of his plea when the

trial court misadvised him he would be eligible for community control. The court

reasoned the Supreme Court deemed ineligibility for community control sanctions to be
Morgan County, Case No. 11-AP-0006                                                       6


a sufficiently important factor in choosing to plead guilty or no contest that it was

incorporated in Crim. R. 11(C)(2)(a) as a subject that must be specifically addressed.

Id. ¶ 25.

       {¶14} The Twelfth District reached a similar result in State v. Phillips, 12th Dist.

No. CA2008–05–126, 2009–Ohio–1448, finding where the trial court affirmatively

misinformed the defendant about his eligibility for community control, it had completely

failed to comply with the Rule. Id. ¶19. Likewise, in State v. Farley, 1st Dist. No.

C0100478, 2002–Ohio–1142, the appeals court found a trial court has not substantially

complied with the Rule if it misinforms a defendant about his or her eligibility for

community control. The court found the prospect of probation or community control is a

factor weighing heavily in favor of the decision to enter guilty or a no contest plea.

       {¶15} The Farley court opined it could not assume the defendant would have

entered his guilty plea if he had been properly advised. Howard did not discuss whether

the record showed actual prejudice, implying the prejudice is implicit. In Phillips, the

court found it did not need to address the issue of prejudice because failure to properly

advise the defendant of his ineligibility for probation constituted a complete failure to

comply with the requirements of the Rule.

       {¶16} We find the trial court erred and misled appellant prior to accepting his

guilty plea. We find further there is no indication appellant subjectively knew he faced a

mandatory sentence.      We conclude the court did not substantially comply with the

requirements of Crim. R. 11, and should not have accepted the plea of guilty.

       {¶17} The assignment of error is sustained.
Morgan County, Case No. 11-AP-0006                                               7


      {¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of

Morgan County, Ohio, is vacated, and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. JOHN W. WISE




WSG:clw 0522
[Cite as State v. Hollobaugh, 2012-Ohio-2620.]


              IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
ERIC HOLLOBAUGH                                  :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 11-AP-0006




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Morgan County, Ohio, is vacated, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion. Costs to appellee.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN


                                                     _________________________________
                                                     HON. JOHN W. WISE
