[Cite as State v. Givens, 2015-Ohio-361.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :       CASE NO. CA2014-02-047

                                                  :              OPINION
    - vs -                                                        2/2/2015
                                                  :

DEONTE CORTEZ GIVENS,                             :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-09-1490



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Deonte Givens, appeals from his conviction and the

sentence he received in the Butler County Court of Common Pleas following his guilty plea to

robbery, theft and a firearm specification.

        {¶ 2} On January 7, 2014, Givens pled guilty to charges of robbery with a gun

specification and petty theft. At the plea hearing, the trial court attempted to engage in a plea

colloquy as required by Crim.R. 11.
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       {¶ 3} During that colloquy, the trial court failed to advise Givens that he was subject

to a mandatory prison term for the robbery charge because he had been adjudicated

delinquent for aggravated robbery as a minor. While the trial court advised Givens that "the

minimum sentence you could get there would be two years," the court did not advise Givens

that the minimum sentence was mandatory.

       {¶ 4} The trial court went on to advise Givens that he may be eligible to earn days of

credit while in prison. However, because Givens' prison term was mandatory, he was not

eligible to earn days of credit. In addition, the trial court informed Givens that there was a

"presumption that prison is necessary." However, prison was mandatory for Givens rather

than merely presumed. Moreover, the plea form itself was marked "N/A" under the heading

titled "Prison Term is Mandatory/Consecutive." Finally, the judgment of conviction entry itself

did not state that the prison sentence for the robbery conviction is mandatory.

       {¶ 5} Givens now appeals his conviction and sentence, raising three assignments of

error for review.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN ITS

ACCEPTANCE OF A GUILTY PLEA WHICH WAS NOT KNOWING, INTELLIGENT AND

VOLUNTARY, IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS UNDER THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

       {¶ 8} Within this assignment of error, Givens argues that, "[a] trial court errs in

misadvising an accused of the mandatory nature of his prison sentence during the plea

colloquy, and the court further errs in advising [the] accused that he can earn credit against

the prison term to be imposed."

       {¶ 9} The defendant's plea in a criminal case is invalid if not made knowingly,
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intelligently, and voluntarily. State v. Ackley, 12th Dist. Madison No. CA2013–04–010, 2014-

Ohio-876, ¶ 8, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7. Failure on

any of those points renders enforcement of the plea unconstitutional under both the United

States and Ohio Constitutions. State v. Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-

Ohio-4978, ¶ 8.

      {¶ 10} Crim.R. 11(C) facilitates an accurate determination as to whether a plea to a

felony charge meets these criteria by ensuring an adequate record for review. State v. Nero,

56 Ohio St.3d 106, 107 (1990). Crim.R. 11(C)(2) requires the trial court to hold a plea

colloquy with the defendant for the purposes of:

             (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 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.

      {¶ 11} In conducting this colloquy, the trial judge must convey accurate information to

the defendant so that the defendant can understand the consequences of his decision and

enter a valid plea. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 26.

      {¶ 12} A guilty plea is invalid if the trial court does not strictly comply with Crim.R.

11(C)(2)(c), which requires the court to verify the defendant understands the constitutional

rights that he is waiving. Ackley at ¶ 9, citing Veney at ¶ 31. But a court need only


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substantially comply with the nonconstitutional notifications required by Crim.R. 11(C)(2)(a)

and (b). Ackley at ¶ 9. Under the substantial compliance standard, the appellate court must

review the totality of the circumstances surrounding the defendant's plea and determine

whether he subjectively understood the effects of his plea. State v. Sarkozy, 117 Ohio St.3d

86, 2008-Ohio-509, ¶ 20.

       {¶ 13} Even if we find the trial court did not substantially comply with Crim.R.

11(C)(2)(a) and (b), then we must make a further determination as to whether the trial court

at least partially complied. Hendrix, 2013-Ohio-4978 at ¶ 11, citing Clark, 119 Ohio St.3d 239

at ¶ 32. If the trial court wholly failed to comply, the plea must be vacated. Sarkozy, 117

Ohio St.3d 86 at ¶ 22. If, on the other hand, the trial court partially complied, then the plea

will not be vacated unless the defendant can show he was prejudiced by the extent to which

the trial court was in noncompliance. Hendrix at ¶ 11.

       {¶ 14} It is undisputed that the trial court strictly complied with the constitutional

requirements of Crim.R. 11(C)(2)(c). With respect to the required notifications regarding

constitutional rights, the court advised Givens that a guilty plea would waive his rights to have

the matter tried before the court, to require the state to prove his guilt beyond a reasonable

doubt, to confront witnesses against him, and to subpoena witnesses in his defense. Givens

affirmed that he understood the rights he was waiving.

       {¶ 15} On the other hand, the trial court wholly failed to comply with the

nonconstitutional notifications of Crim.R. 11(C)(2)(a) and (b). The state argues that Givens

was repeatedly advised that he would be serving a mandatory sentence. A review of the

record demonstrates that each of the examples cited by the state were made in reference to

the gun specification charge, not the robbery charge. It is undisputed that the trial court

properly advised Givens that he would be subject to a mandatory prison sentence on the gun

specification charge both at the plea hearing and on the plea form. However, the trial court
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failed to advise Givens that he was subject to a mandatory prison sentence on the robbery

charge.

       {¶ 16} The miscommunication regarding the mandatory term of Givens' potential

sentence was too significant to allow the conclusion that he subjectively understood the

effects of his plea. Indeed, Givens' plea form itself suggested there was no mandatory prison

term for the robbery charge. Furthermore, Givens was improperly advised at the plea

hearing that prison was merely a presumption and that he was eligible to earn credit. At no

point, either through the plea form or during the plea hearing, was Givens advised that the

robbery charge carried a mandatory prison term. In fact, Givens was expressly advised that

a prison term was not mandatory. Such a failure cannot be considered harmless as a

mandatory prison term renders Givens ineligible for community control, judicial release, or

earned credit on the robbery charge. State v. Hendrix, 12th Dist. Butler App. No. CA2012-

12-265, 2013-Ohio-4978, ¶ 26. Accordingly, we find that Givens could not have subjectively

understood that he was subject to a mandatory prison term on the robbery charge.

       {¶ 17} In light of the foregoing, having found that Givens' plea was not made

knowingly, intelligently and voluntarily where the trial court failed to advise him that he was

subject to a mandatory prison term on the robbery charge, Givens' first assignment of error is

sustained.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE OF

APPELLANT IN IMPOSING MULTIPLE SENTENCES FOR ALLIED OFFENSES.

       {¶ 20} Assignment of Error No. 3:

       {¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT

AFFORDING HIS RIGHT OF ALLOCUTION BEFORE IMPOSING SENTENCE.

       {¶ 22} Based upon our resolution of the Givens' first assignment of error, the
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remaining assignments of error are rendered moot.

       {¶ 23} Givens' conviction and sentence for robbery, theft and the firearm specification

are hereby reversed and his plea to those offenses is vacated. This matter is reversed and

remanded to the trial court for further proceedings consistent with the law and in accordance

with this opinion.


       HENDRICKSON and PIPER, JJ., concur.




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