[Cite as State v. Dickens, 2013-Ohio-1499.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-12-20

        v.

STEVEN T. DICKENS, JR.,                                   OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                            Trial Court No. 2012-CR-68

                                      Judgment Affirmed

                             Date of Decision: April 15, 2013




APPEARANCES:

        David K. Goodin for Appellant

        Edwin A. Pierce and R. Andrew Augsburger for Appellee
Case No. 2-12-20


SHAW, J.

       {¶1} Defendant-appellant Steven T. Dickens, Jr., (“Dickens”) appeals the

October 1, 2012, judgment of the Auglaize County Court of Common Pleas

sentencing Dickens to 5 years of community control, which included a residential

sanction of 90 days incarceration in the Auglaize County Correctional Center. For

the reasons that follow, we affirm the judgment of the trial court.

       {¶2} On December 4, 2011, Lisa Engle, Dickens’s mother, contacted the St.

Mary’s Police in Auglaize County, Ohio, informing the police that she was

concerned about Dickens’s use of heroin. (Aug. 30, 2012, Tr. at 10). Ms. Engle

gave the police a syringe, some spoons, and some aluminum foil, which tested

positive for a residue of heroin. The police eventually spoke with Dickens, who

confessed that he had been using heroin. (Tr. at 10).

       {¶3} Subsequently, on April 17, 2012, Dickens was indicted for Possession

of Heroin in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree.

On May 8, 2012, Dickens was arraigned and entered a plea of not guilty to the

charge.

       {¶4} On May 30, 2012, Dickens filed a motion for “Treatment in Lieu of

Conviction.” In considering the motion, the court would later note that Dickens

“failed to cooperate with the PreSentence Investigation Report that was ordered at




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the time [Dickens] filed his motion for Intervention in Lieu of Conviction, which

led to the Court denying his motion * * *.” (Sept. 28, 2012, Tr. at 4).

       {¶5} On August 30, 2012, the court conducted a change of plea hearing

wherein Dickens withdrew his previously tendered plea of not guilty and entered a

plea of guilty to the sole count of Possession of Heroin.         Pursuant to plea

negotiations, in exchange for Dickens’s plea of guilty to the charge, the State

agreed to recommend that Dickens be sentenced to community control and that

Dickens be notified that if he violated community control, he would be sentenced

to prison for 12 months. After engaging in a Criminal Rule 11 colloquy with

Dickens, the court accepted Dickens’s plea and set sentencing for September 28,

2012, at 1:00 p.m.

       {¶6} On September 28, 2012, the court convened for sentencing, but

Dickens was not present. After inquiring about Dickens’s whereabouts, the court

issued a bench warrant for Dickens. That same day, Dickens eventually arrived in

court and the court held a sentencing hearing.

       {¶7} At the sentencing hearing, the State reiterated its recommendation for

community control. The court engaged Dickens in a discussion regarding his prior

work history and his drug use. After speaking with Dickens, the court sentenced

Dickens to five years of community control, with the specific term that Dickens




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serve a 90 day residential sanction in the Auglaize County Correction Center.

This sentence was memorialized in a judgment entry filed October 1, 2012.

      {¶8} It is from this judgment that Dickens appeals, asserting the following

assignment of error for our review.

                   ASSIGNMENT OF ERROR
      DEFENDANT’S     PLEA     OF    GUILTY    WAS
      UNCONSTITUTIONAL UNDER BOTH THE UNITED
      STATES CONSTITUTION AND THE OHIO CONSTITUTION
      BECAUSE THE GUILTY PLEA WAS NOT KNOWINGLY,
      INTELLIGENTLY AND VOLUNTARILY MADE.

      {¶9} In his assignment of error, Dickens argues that his guilty plea was not

knowingly, intelligently, and voluntarily made. Specifically, Dickens argues that

he was not informed that the trial court was not bound by the negotiated plea

agreement, that the trial court should have informed Dickens of its intent to

“deviate” from the agreement, and that the trial court in fact “deviated” from the

negotiated plea agreement with respect to sentencing.

      {¶10} Criminal Rule 11(C)(2) reads:

      (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.


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       (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} A trial court must strictly comply with the provisions of Crim.R.

11(C)(2) that relate to the waiver of constitutional rights, including the right to a

trial by jury, the right to confront one's accusers, the right to require the state to

prove guilt beyond a reasonable doubt, the privilege against self-incrimination,

and the right to compulsory process to obtain witnesses. See, e.g., State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, at the syllabus; State v. Ballard, 66 Ohio

St.2d 473 (1981), at paragraph one of the syllabus. However, the nonconstitutional

aspects of the plea colloquy, such as information concerning the sentence as in the

case before us now, are subject to review under a standard of substantial

compliance. See State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12, citing

State v. Nero, 56 Ohio St.3d 106, 107 (1990). “Substantial compliance means that

under the totality of the circumstances the defendant subjectively understands the




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implications of his plea and the rights he is waiving.” Nero at 108; State v. Carter,

60 Ohio St.2d 34 (1979).

       {¶12} Failure to adequately inform a defendant of his nonconstitutional

rights at a plea hearing will not invalidate a plea unless the defendant suffered

prejudice. Griggs at ¶ 12, citing Nero at 107. Under the substantial compliance

standard, the burden is on the defendant to show prejudice, which means showing

that the plea would otherwise not have been entered. Nero at 108; Veney at ¶ 15.

       {¶13} For Dickens to establish prejudice, he would have to demonstrate

that his plea would not have been made otherwise. See id. The Supreme Court of

Ohio has held that “[a] defendant who has entered a guilty plea without asserting

actual innocence is presumed to understand that he has completely admitted his

guilt. In such circumstances, a court's failure to inform the defendant of the effect

of his plea as required by Crim.R. 11 is presumed not to be prejudicial.”

(Emphasis added.) Griggs at the syllabus.

       {¶14} Dickens argues that his plea was not knowingly, intelligently, and

voluntarily given. He claims that he was not informed that the trial court was not

bound to accept the negotiated plea agreement, and that the written negotiated plea

agreement made no mention that the court was not bound to accept it. While it is

true that the written negotiated plea agreement did not contain language informing

Dickens that the court was not bound to accept the agreement as it pertained to


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sentencing, the court did discuss this matter with Dickens on the record during the

Criminal Rule 11 plea colloquy. After informing Dickens of the Constitutional

rights he was waving, the court engaged in the following dialogue with Dickens:

       THE COURT: The Court can, if it chooses, proceed to impose
       sentence today. Do you understand?

       STEVEN DICKENS, JR.: Yes, Sir.

       THE COURT: The Court may determine you are not amenable
       to Community Control, which means that I can send you to
       prison for twelve (12) months. There’s a twenty-five hundred
       dollar ($2,500.00) fine, there’s a mandatory minimum six (6)
       month operator’s license suspension up to a five (5) year
       operator’s license suspension. And I can stay that suspension
       until after you’re done serving any penitentiary or jail time. Do
       you understand?

       STEVEN DICKENS, JR.: Yes, Sir.

(Tr. at 5-6).

       ***

       THE COURT: Understand I don’t know anything about you, I
       don’t know anything about this case. I don’t know what I’m
       going to do on sentencing because there’s so much that I need to
       know about you before I could decide whether or not I sentence
       you to prison. I have no idea. If I don’t know, nobody else can
       know. Do you understand?

       STEVEN DICKENS, JR.: Yes, Sir.

       THE COURT: So nobody can promise anything on my behalf
       and there is no promise. Do you understand?

       STEVEN DICKENS, JR.: Yes, Sir.


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       THE COURT: Do you have any questions?

       STEVEN DICKENS, JR.: No, sir.

       ***

       THE COURT: Do you understand the four (4) pleas that are
       available to you?

       STEVEN DICKENS, JR.: Yes, Sir.

       THE COURT: Do you understand the nature of the charge
       against you, the Indictment, the law, and the penalties?

       STEVEN DICKENS, JR.: Yes, Sir.

(Tr. at 8-9).

       {¶15} Under the totality of the circumstances, we find that the foregoing

colloquy between the trial court and Dickens adequately informed Dickens that the

trial court was not bound to accept the sentencing recommendation in the plea

agreement.      However, even if the foregoing dialogue and the remaining plea

colloquy were somehow insufficient to establish this, Dickens is unable to

establish any prejudice. Dickens admitted his guilt to officers in the investigation

and to the court.

       {¶16} Furthermore, despite Dickens’s argument, the trial court at no time

“deviated” from the negotiated plea agreement when it proceeded to sentencing.

The negotiated plea agreement stated that the “State at the time of sentence, will




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recommend as follows: * * * Defendant be placed on community control * * *.”

(Doc. 45). The State did, in fact, make that recommendation.

       {¶17} At sentencing, the trial court sentenced to Dickens to community

control, with sanctions including, inter alia, 90 days of incarceration in the

Auglaize County Correctional Center.      As is clear in the statute, community

control may include up to six months in jail or in a community based correctional

facility as a residential sanction. R.C. 2929.16(A). The term imposed easily falls

within that parameter. A review of the sentencing hearing transcript and the trial

court’s entry shows that Dickens was not sentenced to anything other than

community control, though his community control included multiple sanctions.

Thus there is no showing that the trial court “deviated” from the negotiated plea

agreement or that there was any prejudice to Dickens, as he got the very sentence

that was in his negotiated plea.

       {¶18} For the foregoing reasons Dickens’s assignment of error is overruled

and the judgment of the Auglaize County Common Pleas Court is affirmed.

                                                               Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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