[Cite as State v. Dunham, 2012-Ohio-2957.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                     JUDGES:
STATE OF OHIO                                :       Hon. W.Scott Gwin, P.J.
                                             :       Hon. Sheila G. Farmer, J.
                        Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                             :
-vs-                                         :
                                             :       Case No. 2011-CA-121
JOSHUA DUNHAM                                :
                                             :
                    Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                         Criminal appeal from the Richland County
                                                 Court of Common Pleas, Case No.
                                                 2010CR0559


JUDGMENT:                                        Reversed and Remanded


DATE OF JUDGMENT ENTRY:                          June 27, 2012

APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

JAMES J. MAYER                                   PAUL MANCINO, JR.
Richland County Prosecutor                       75 Public Square, Ste. 1016
38 Park Street                                   Cleveland, OH 44113-2098
Mansfield, OH 44902
[Cite as State v. Dunham, 2012-Ohio-2957.]


Gwin, P.J.

        {¶1}    The Richland County Grand Jury in a six-count indictment indicted

appellant Joshua Dunham [“Dunham”]. Specifically, Dunham was indicted with one

count of vehicular homicide in violation of R.C.2903.06 (A)(1) (a) a felony of the first

degree, for causing death while driving under the influence; a second count of vehicular

homicide under R.C.2903.06 (A)(2)(a) a felony of the second degree, requiring the

mental state of recklessness. Dunham was also indicted with two counts of aggravated

vehicular assault, the first a felony of the third degree under R.C. 2903.08(A)(1)(a) and

the second a felony of the fourth degree under R.C. 2903.08(A)(2)(b). Dunham was also

indicted with two counts of operating a vehicle under the influence of alcohol or drugs —

both misdemeanors of the first degree under R.C. 4511.19(A)(1)(b) and 4511.19(A)(1)

(a).

        {¶2}    On June 1, 2011, Dunham changed his plea of not guilty to guilty to all

counts of the indictment. The court referred the matter to the probation department for

the preparation of a presentence investigation report. Dunham appeared for sentencing

on July 11, 2011. Dunham was fined $375.00 and sentenced to a total term of

imprisonment of nine (9) years of mandatory prison time on count one (1), a one (1)

year sentence on count three (3) and a six (6) month sentence on count five (5). The

sentences in counts 2, 4 and 6 were merged into counts 1, 3 and 5.

                                        ASSIGNMENTS OF ERROR

        {¶3}    Dunham raises five assignments of error,
Richland County, Case No. 2011-CA-121                                                3


      {¶4}   “I. DEFENDANT WAS DENIED A DUE PROCESS OF LAW WHEN THE

COURT FAILED TO INFORM DEFENDANT THAT HE WAS SUBJECT TO A

MANDATORY PRISON SENTENCE DURING THE COLLOQUY.

      {¶5}   “II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE

COURT MISINFORMED DEFENDANT CONCERNING ABOUT A MANDATORY LIFE

TIME LICENSE SUSPENSION.

      {¶6}   “III. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HIS

RIGHTS UNDER THE SIXTH AMENDMENT WHEN THE COURT BASED ITS

SENTENCING ON FACTS NOT ALLEGED IN THE INDICTMENT NOR ADMITTED AT

THE PLEA HEARING.

      {¶7}   “IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE

COURT BELIEVED IT HAD TO IMPOSE A LICENSE SUSPENSION OF LIFE.

      {¶8}   “V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE

ORAL PRONOUNCEMENT OF SENTENCE DID NOT INCLUDE MANDATORY TIME

BUT THE JOURNAL ENTRY OF SENTENCING INCLUDED MANDATORY TIME.”

                                               I.

      {¶9}   In Dunham’s first assignment of error, he disputes the voluntary nature of

his pleas because, Dunham argues, the trial court failed to inform him that by pleading

guilty he faced a mandatory prison sentence.

      {¶10} The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise

difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v.

United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty
Richland County, Case No. 2011-CA-121                                                     4


constitutes a complete admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of

guilty, the accused is not simply stating that he did the discreet acts described in the

indictment; he is admitting guilt of a substantive crime.” United v. Broce, 488 U.S. 563,

570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927(1989).

       {¶11} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d

115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme

Court noted the following test for determining substantial compliance with Crim.R. 11:

       Though failure to adequately inform a defendant of his constitutional rights

       would invalidate a guilty plea under a presumption that it was entered

       involuntarily and unknowingly, failure to comply with non constitutional

       rights will not invalidate a plea unless the defendant thereby suffered

       prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

       The test for prejudice is ‘whether the plea would have otherwise been

       made.’ Id. Under the substantial-compliance standard, we review the

       totality of circumstances surrounding [the defendant’s] plea and determine

       whether he subjectively understood [the effect of his plea]. See, State v.

       Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.

       {¶12} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and

states: "[a] motion to withdraw a plea of guilty or no contest may be made only before
Richland County, Case No. 2011-CA-121                                                     5


sentence is imposed; but to correct manifest injustice the court after sentence may set

aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

In the case at bar, because Dunham’s request was made post-sentence, the standard

by which the motion was to be considered was "to correct manifest injustice."

       {¶13} The accused has the burden of showing a manifest injustice warranting

the withdrawal of a guilty plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324

(1977), paragraph one of the syllabus. A manifest injustice has been defined as a "clear

or openly unjust act." State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-

Ohio-271, 699 N.E.2d 83(1998). “‘Manifest injustice relates to some fundamental flaw in

the proceedings which result[s] in a miscarriage of justice or is inconsistent with the

demands of due process.'” State v. Ruby, 9th Dist. No. 23219, 2007-Ohio-244, ¶ 11,

quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Accordingly,

under the manifest injustice standard, a post-sentence withdrawal motion is allowable

only in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.

       {¶14} In determining whether the trial court has satisfied its duties under Crim.R.

11 in taking a plea, reviewing courts have distinguished between constitutional and non-

constitutional rights. State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-

3748, ¶ 32; State v. Aleshire, Licking App. No. 2007-CA-1, 2008-Ohio-5688 at ¶ 10. The

trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to the

waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244, 893 N.E.2d at 499,

2008-Ohio-3748, ¶ 31.

       {¶15} In Clark, a case decided after Sarkozy, the Ohio Supreme Court

concluded that “[i]f a trial judge, in conducting a plea colloquy, imperfectly explains non-
Richland County, Case No. 2011-CA-121                                                    6


constitutional rights such as the right to be informed of the maximum possible penalty

and the effect of the plea, a substantial-compliance rule applies on appellate review;

under this standard, a slight deviation from the text of the governing rule is permissible,

and 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 ¶31, 881 N.E.2d 1224. Thus, in Clark, the Ohio Supreme Court

concluded that the right to be informed of the maximum possible penalty and the effect

of the plea are subject to the substantial compliance test. 119 Ohio St.3d at 244, 893

N.E.2d at 469, 2008-Ohio-3748 at ¶ 31. (Citations omitted).

      {¶16} In the case at bar, the trial court never orally informed Dunham that any

portion of his prison sentence was mandatory. Moreover, the plea form executed by

Dunham evidences confusion regarding the mandatory sentencing range, indicating that

only four years of the potential 15 year sentence was mandatory. In the trial court’s

sentencing entry is the handwritten notation “9 mandatory.” This is the first time it

appears in the record that Dunham was informed that he was to receive a nine year

prison sentence and that all nine years were to be considered mandatory. Thus, it is

clear that at the time he pled guilty, Dunham was unaware of the amount of time of his

prison term for the offenses that was mandatory, and that he would be ineligible for

community control sanctions, and judicial release. Accord, State v. Maggard, 1st Dist.

No. C-100788, 2011-Ohio-4233, ¶17; State v. Johnson, 8th Dist. No. 92364, 2009-Ohio-

5821, ¶15; State v. Rand, 10th Dist. No. 03AP-745, 2004-Ohio-5838, ¶22.

      {¶17} Under the totality of the circumstances, we are not convinced that

Dunham understood that the prison sentence imposed was mandatory or that he was
Richland County, Case No. 2011-CA-121                                                   7


ineligible for community control or probation. Nor are we satisfied that Dunham would

have entered his guilty plea had the trial court complied with the rule. In this case, the

trial court committed prejudicial error when it accepted Dunham’s guilty plea because

Dunham was not informed that his sentence was mandatory.

        {¶18} Consequently, we conclude that, under the circumstances of this case, the

trial court abused its discretion when it denied Dunham's motion to withdraw his guilty

plea.

        {¶19} For the foregoing reasons, Dunham’s first assignment of error is

sustained.

                                           II, III, IV, V

        {¶20} Based upon our analysis and disposition of Dunham’s first assignment of

error, we find his second, third, four and fifth assignments of error premature.

                                         CONCLUSION

        {¶21} Because the trial court did not adequately inform Dunham that the prison

sentence imposed was mandatory or that he was ineligible for community control or

probation, Dunham’s first assignment of error is sustained.
Richland County, Case No. 2011-CA-121                                                 8


       {¶22} Accordingly, the judgment of the Richland County Court of Common Pleas

is reversed, and this cause is remanded to that court with instructions to permit Dunham

to withdraw his guilty plea.



By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. SHEILA G. FARMER


                                            _________________________________
                                            HON. JULIE A. EDWARDS


WSG:clw 0611
[Cite as State v. Dunham, 2012-Ohio-2957.]


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :
                           Plaintiff-Appellee   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
JOSHUA DUNHAM                                   :
                                                :
                                                :
                       Defendant-Appellant      :       CASE NO. 2011-CA-121




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

the Richland County Court of Common Pleas is reversed, and this cause is remanded

to that court with instructions to permit Dunham to withdraw his guilty plea. Costs to

appellee.




                                                    _________________________________
                                                    HON. W. SCOTT GWIN


                                                    _________________________________
                                                    HON. SHEILA G. FARMER


                                                    _________________________________
                                                    HON. JULIE A. EDWARDS
