[Cite as State v. Morgan, 2018-Ohio-319.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

  STATE OF OHIO                                   :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 2017-CA-29
                                                  :
 v.                                               :   T.C. NO. 2016-CR-132
                                                  :
  ISSAC MORGAN                                    :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........


                           Rendered on the 26th day of January, 2018.

                                             ...........

ANDREW PICKERING, Atty. Reg. No. 68770, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

ANDREW SCHLUETER, Atty. Reg. No. 86701, 5540 Far Hills Avenue, Suite 202, Dayton,
Ohio 45429
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Issac Morgan appeals his conviction and sentence for

one count of rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree. The
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rape count was accompanied by a mandatory three-year firearm specification. Morgan

was also sentenced to a mandatory five years of post-release control and informed that

he was classified as a Tier III sex offender. Morgan filed a timely notice of appeal with

this Court on March 20, 2017.

       {¶ 2} On March 15, 2016, Morgan was indicted for two counts of rape, two counts

of kidnapping, and one count of felonious assault. Each count was accompanied by a

mandatory three-year firearm specification.     At his arraignment on March 18, 2016,

Morgan pled not guilty to all of the charges in the indictment.

       {¶ 3} Thereafter on January 26, 2017, Morgan pled guilty to one count of rape and

the accompanying firearm specification in exchange for dismissal of the remaining counts.

After accepting Morgan’s guilty plea, the trial court ordered the probation department to

generate a presentence investigation report (PSI).

       {¶ 4} On February 16, 2017, the trial court sentenced Morgan to ten years in prison

for the rape count and to a mandatory three years in prison for the firearm specification.

The trial court ordered that the sentence for the firearm specification be served prior to

and consecutive to the sentence for the rape count, for an aggregate sentence of thirteen

years imprisonment. The trial court also designated Morgan as a Tier III sex offender.

       {¶ 5} It is from this judgment that Morgan now appeals.

       {¶ 6} Morgan’s sole assignment of error is as follows:

       {¶ 7} “APPELLANT’S       GUILTY     PLEA    WAS     NOT    MADE     KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY.”

       {¶ 8} In his sole assignment of error, Morgan contends that the trial court erred

because it did not substantially comply with Crim.R. 11(C)(2) when it failed to inform him
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that he was not eligible for community control sanctions because of the mandatory nature

of his sentence for his rape conviction.

       {¶ 9} In State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, we

stated the following:

              In determining whether to accept a defendant's guilty plea, the trial

       court must determine whether the defendant knowingly, intelligently, and

       voluntarily entered the plea. State v. Johnson, 40 Ohio St.3d 130, 532

       N.E.2d 1295 (1988), at syllabus. “If a defendant's guilty plea is not knowing

       and voluntary, it has been obtained in violation of due process and is void.”

       State v. Brown, 2d Dist. Montgomery Nos. 24520 & 24705, 2012–Ohio–199,

       ¶ 13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23

       L.Ed.2d 274 (1969).      In order for a plea to be given knowingly and

       voluntarily, the trial court must follow the mandates of Crim. R. 11(C). Brown

       at ¶ 13.

              Crim.R. 11(C)(2) requires the court to (a) determine that the

       defendant is making the plea voluntarily, with an understanding of the

       nature of the charges and the maximum penalty, and, if applicable, that the

       defendant is not eligible for probation or for the imposition of community

       control sanctions; (b) inform the defendant of and determine 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 sentencing; and (c) inform the defendant and determine that he

       understands that, by entering the plea, the defendant is waiving the rights
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to a jury trial, to confront witnesses against him, to have compulsory process

for obtaining witnesses, and to require the state to prove his guilt beyond a

reasonable doubt at a trial at which he cannot be compelled to testify

against himself. State v. Brown, 2d Dist. Montgomery No. 21896, 2007–

Ohio–6675, ¶ 3. See also State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–

3748, 893 N.E.2d 462, ¶ 27.

       The Supreme Court of Ohio has urged trial courts to literally comply

with Crim.R. 11. Clark at ¶ 29. However, because Crim.R. 1 1(C)(2)(a) and

(b) involve non-constitutional rights, the trial court need only substantially

comply with those requirements. E.g., State v. Nero, 56 Ohio St.3d 106,

108, 564 N.E.2d 474 (1990). “Substantial compliance means that under

the totality of the circumstances the defendant subjectively understands the

implications of his plea and the rights he is waiving.” Id. In contrast, the

trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the

waiver of federal constitutional rights. Clark at ¶ 31.

       Furthermore, when nonconstitutional rights are at issue, a defendant

who challenges his guilty plea on the basis that it was not knowingly,

intelligently, and voluntarily made generally must show a prejudicial effect.

State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E.2d 621, ¶

17. Prejudice in this context means that the plea would otherwise not have

been entered. Id. at ¶ 15. Where the trial court completely fails to comply

with Crim.R. 11(C)(2)(a) or (b), however, “an analysis of prejudice” is not

implicated. State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881
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          N.E.2d 1224, ¶ 22.

Id. at ¶¶ 4-7.

          {¶ 10} At Morgan’s plea hearing, the trial court stated the following in pertinent part:

                 The Court has been handed a written plea of guilty to Count One, the

          rape offense, with the three-year firearm specification. The rape carries a

          possible maximum penalty of 11 years in prison, $20,000 fine, restitution if

          any were found to be due and owing, and court costs.               Prison is a

          mandatory sentence for the firearm specification, and that’s three years,

          which must be consecutive to any prison sentence the Defendant gets for

          the rape charge, which means a total possible maximum penalty of 14 years

          in prison.

          {¶ 11} The following exchange also occurred between the trial court and Morgan,

to wit:

          The Court: Did you understand the possible maximum penalty I read into

          the record?

          Morgan: Yes, sir.

          {¶ 12} While the record establishes that the trial court informed Morgan of the

maximum possible sentence for rape and that he was subject to a mandatory three years

in prison for the firearm specification, it is undisputed that at no point during the plea

hearing did the trial court inform Morgan that he was subject to a mandatory prison

sentence if it accepted his guilty plea for the rape offense. Morgan asserts that the trial

court failed to comply with Crim.R. 11(C)(2)(a) because it failed to advise him that a prison

sentence was mandatory for the rape charge that he was pleading guilty to and failed to
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inform him that he was ineligible for community control sanctions in lieu of a prison term

for this offense.

       {¶ 13} R.C. 2929.13(F)(2) requires that the sentencing court impose a prison term

for “[a]ny rape, regardless of whether force was involved and regardless of the age of the

victim * * *.” Because Morgan pleaded guilty to one count of rape, the trial court had to

sentence him to prison, and he was ineligible to be sentenced to community control

sanctions. See State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 12

(finding that the trial court did not substantially comply with the notification requirement of

Crim.R. 11(C)(2)(a) by wholly failing to advise the defendant that he was subject to

mandatory prison terms for three rape convictions to which he pled guilty, which made

him ineligible for community control sanctions in lieu of prison thus rendering his guilty

pleas unknowing, involuntary, and unintelligently made); State v. Givens, 12th Dist. Butler

No. CA2014–02–047, 2015–Ohio–361, ¶ 15–16 (trial court's failure to advise defendant

that guilty plea to robbery charge carried a mandatory prison term that rendered him

ineligible for community control or judicial release rendered the plea invalid so as to

require reversal of the conviction and sentence); State v. Smith, 5th Dist. Licking No. 13–

CA–44, 2014–Ohio–2990, ¶ 11–12 (trial court's failure to notify defendant who pled no

contest to rape charges of the amount of mandatory prison time and the time during which

he would be ineligible for community control resulted in invalid plea that required

reversal); State v. Rand, 10th Dist. Franklin No. 03AP–745, 2004–Ohio–5838, ¶ 23 (trial

court committed reversible error when it accepted defendant's guilty plea because it

misinformed him that his sentence was not mandatory).

       {¶ 14} In the instant case, the State argues that the trial court substantially
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complied with Crim.R. 11(C)(2) because it expressly informed Morgan that he was subject

to a mandatory three-year prison term for the firearm specification attached to the rape

count. However, a conviction for the firearm specification was contingent upon the trial

court accepting Morgan’s guilty plea to the rape count. Furthermore, it is undisputed that

the trial court failed to inform Morgan that he was subject to a mandatory prison term if it

accepted his guilty plea to the rape count. The trial court also failed to inform Morgan

that because the prison time was mandatory for a rape conviction, he was ineligible for

community control sanctions in lieu of prison. In fact, the record establishes that the trial

court did not even mention the possibility or impossibility of community control at the plea

hearing.

       {¶ 15} “When a defendant on whom a mandatory prison sentence must be

imposed enters a plea of guilty or no contest, the court must, before accepting the plea,

determine the defendant's understanding that the defendant is subject to a mandatory

sentence and that the mandatory sentence renders the defendant ineligible for probation

or community control sanctions.” Balidbid, at ¶ 10. Even if Morgan and his counsel

“believed the community control was unlikely, such an understanding would not constitute

substantial compliance, given the mandatory nature of his [rape] sentence.” Id. at ¶ 12.

       {¶ 16} Here, Morgan was neither advised that he was subject to a mandatory

sentence upon his conviction for rape, nor did the trial court inform him that he would be

ineligible for community control if he was convicted. We also note that Morgan’s plea

form did not affirmatively state that his prison sentence for the rape count was mandatory.

Rather, the plea form states for Morgan’s rape conviction as follows: “PRISON TERM IS

MANDATORY n/a.” Assuming “n/a” is understood to be an acronym for “not applicable,”
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as is it commonly understood to be, Morgan’s plea form suggests that a mandatory prison

sentence is “not applicable” for his rape conviction, and is therefore, an incorrect

statement of law which went unnoticed by the trial court and the parties.

       {¶ 17} Thus, we conclude that in light of the foregoing analysis, the trial court failed

to substantially comply with Crim.R. 11(C)(2)(a) and an additional analysis of prejudice is

unnecessary. The trial court failed to inform Morgan that he was subject to a mandatory

prison term before it accepted his guilty plea to the rape count. The trial court also failed

to inform Morgan that because the prison time was mandatory for a rape conviction, he

was ineligible for community control sanctions in lieu of prison. Furthermore, the plea

form signed by Morgan incorrectly stated that a mandatory prison term was “not

applicable” to his conviction for rape. Accordingly, we find that Morgan’s guilty plea was

not made knowingly, intelligently, and voluntarily.

       {¶ 18} Morgan’s sole assignment of error is sustained.

       {¶ 19} Morgan’s sole assignment of error having been sustained, the trial court's

judgment is reversed, and the matter will be remanded for proceedings consistent with

this opinion.

                                          .............

HALL, J. and TUCKER, J., concur.

Copies mailed to:

Andrew Pickering
Andrew Schlueter
Hon. Richard J. O’Neill
