[Cite as State v. Randle, 2016-Ohio-3059.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103264




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     MARION RANDLE
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-591024-A

        BEFORE: Keough, P.J., S. Gallagher, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: May 19, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Patrick J. Lavelle
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Marion Randle (“Randle”), appeals from the trial

court’s judgment finding him guilty of drug trafficking and sentencing him to three years

in prison. We affirm.

                                     I. Background

       {¶2} In November 2014, the Cuyahoga County Grand Jury indicted Randle on

three counts. Count 1 charged drug possession in violation of R.C. 2925.11(A); Count 2

charged drug trafficking in violation of R.C. 2925.03(A)(2); and Count 3 charged

possessing criminal tools in violation of R.C. 2923.24(A).

       {¶3} Randle subsequently pleaded guilty to amended Count 2, trafficking in

heroin in an amount equal to or exceeding ten grams but less than fifty grams, in violation

of R.C. 2925.03(A)(2), a second-degree felony, with a forfeiture specification.

       {¶4} During the trial court’s plea colloquy with Randle, upon questioning,

Randle told the judge that he was not on community control sanctions in any other case.

The judge verified that Randle understood what constitutional rights he was waiving by

pleading guilty. The judge then reviewed the nature of the charge with Randle, and

informed him that by pleading guilty, he would be subject to a mandatory prison term of

two to eight years, a mandatory fine, and forfeiture of three cell phones and $638. The

prosecutor informed the judge that at sentencing, the state would be seeking more than

the minimum two-year prison term.
       {¶5} At the subsequent sentencing hearing, the court advised that it had reviewed

Randle’s presentence investigation report, a TASC assessment regarding Randle’s

substance abuse issues, the defense sentencing memorandum, and a status report from

Randle’s probation officer. The court acknowledged that as a result of his guilty plea in

this case, Randle had violated community control conditions in two other cases,

CR-12-567167 and CR-12-564291, which Randle had not told the court about when he

pleaded guilty to the trafficking offense.

       {¶6} The court then heard from the prosecutor, defense counsel, Randle’s

probation officer, and Randle.       Defense counsel acknowledged that Randle had a

criminal history and had previously been to prison. Counsel asserted that Randle had

completed his community control sanctions without incident, but acknowledged that the

incident leading to the charges in this case occurred a month prior to the expiration of the

two-year probation sanctions that were imposed in the other two cases. The trial court

then reviewed Randle’s criminal history, noting that this was his ninth felony offense.

The court also noted that Randle had been released from prison in 2009 and charged with

the other two cases, both of which were drug related, relatively soon after his release.

The court further noted that Randle, who admitted at the plea hearing that he was selling

drugs to support his habit, had deceived his probation officer because although he always

tested negative on his drug tests, he was still using drugs.

       {¶7} The trial court then sentenced Randle to a total of three years incarceration:

three years for the drug trafficking offense in this case, concurrent with three years for the
community control sanctions violation in CR-12-567167, and 18 months for the violation

in CR-12-564291.      The court terminated community control sanctions in case Nos.

CR-12-567167 and CR-12-564291, and imposed a $15,000 fine, as well as mandatory

three years postrelease control and a six-months driver’s license suspension upon

Randle’s release from prison.

       {¶8} The court noted that in imposing the sentence, it had considered the

purposes and principles of sentencing, as well as the likelihood of Randle’s recidivism,

and the fact that Randle was on probation in two other cases when he committed this

offense.

       {¶9} Randle now appeals from the sentence, arguing that his guilty plea in this

case was not made knowingly, voluntarily, and intelligently because he was not aware

that his guilty plea carried potential consequences regarding the two cases for which he

was on community control sanctions. In short, Randle contends that the trial court did not

fully explain to him the effect of his plea.

       {¶10} Under Crim.R. 11(C)(2), in a felony case, a trial court shall not accept a

guilty plea without first addressing the defendant personally and (1) determining that the

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

charges and of the maximum penalty involved, (2) informing the defendant of and

determining that the defendant understands the effect of the guilty plea and that the court,

upon accepting the plea, may proceed with judgment and sentence, and (3) informing the

defendant and determining that the defendant understands that by the plea, the defendant
is waiving the rights to a jury trial, to confront witnesses against him, 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.

       {¶11} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements

regarding the waiver of constitutional rights, which means that the court must actually

inform the defendant of the constitutional rights he is waiving and make sure the

defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 18. For nonconstitutional rights, such as the right to be informed of the

effect of the plea, we review for substantial compliance with the rule. Id. at ¶ 14, citing

State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). Substantial compliance

means that under the totality of the circumstances the defendant understands the

implications of his plea and the rights he is waiving. State v. Carter, 60 Ohio St.2d 34,

38, 396 N.E.2d 757 (1979).

       {¶12} The record reflects that at the plea hearing, the trial court explained to

Randle that as amended, the Count 2 trafficking charge was a second-degree felony with

a forfeiture specification. The court also carefully explained the possible penalties to

Randle: a mandatory two to eight years in prison, a six months to five years mandatory

driver’s license suspension, a mandatory fine, and forfeiture of three cell phones and

$638. The court also explained that upon release from prison, Randle would be subject

to three years of mandatory postrelease control; it also explained the possible
consequences for violating postrelease control.     Randle informed the court that he

understood and had no questions about his rights, the nature of the charge to which he

was pleading guilty, or any of the possible penalties involved in his guilty plea to

amended Count 2. Thus, the record reflects that the trial court explained and Randle

understood the effect of his plea regarding the trafficking charge in amended Count 2.

      {¶13} Nevertheless, the record reflects that the trial court did not advise Randle of

the effect of his plea on the two cases for which he was on community control sanctions.

We presume this is because Randle specifically advised the court at the plea hearing that

he was not on community control sanctions on any other case. The court apparently only

learned after the plea hearing that Randle was on community control sanctions in Case

Nos. CR-12-567167 and CR-12-564291.1

      {¶14} Informing a defendant of the effect of his plea is a nonconstitutional right

and, therefore, subject to review for substantial compliance. State v. Richardson, 8th

Dist. Cuyahoga No. 100838, 2014-Ohio-2984, ¶ 25, citing State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11.        A defendant must show prejudice

before a plea will be vacated for a trial court’s error involving Crim.R. 11(C) procedure

when nonconstitutional aspects of the colloquy are at issue. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18.         “‘[E]ven if the [trial] court failed to

substantially comply with explaining the effect of his plea,’ the defendant still has to


      1
       In light of Randle’s deceptiveness regarding his drug testing, we are not
persuaded by his assertion on appeal that at the time of his plea, he did not know
he was on community control sanctions in the other two cases.
prove that he was prejudiced by the court’s failure.” State v. Mannarino, 8th Dist.

Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 15, quoting State v. Simonoski, 8th Dist.

Cuyahoga No. 98496, 2013-Ohio-1031, ¶ 11. The test for prejudice is whether the plea

would have otherwise been made. State v. Owens, 8th Dist. Cuyahoga Nos. 100398 and

100399, 2014-Ohio-2275, ¶ 12, citing State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 32.

       {¶15} We find that the trial court substantially complied with its obligation to

inform Randle of the effect of his plea. This court and others have noted that “neither

Crim.R. 11 nor Ohio law generally require a court to explain every potential consequence

of a guilty plea before accepting the defendant’s guilty plea.” State v. Hoffman, 8th Dist.

Cuyahoga No. 53749, 1998 Ohio App. LEXIS 4382, *2 (Nov. 3, 1988); State v. Bryant,

8th Dist. Cuyahoga No. 36778, 1978 Ohio App. LEXIS 9448, *2 (Jan. 12, 1978); State v.

Dixon, 5th Dist. Stark No. 2008CA00254, 2009-Ohio-3137, ¶ 20; State v. Lane, 2d Dist.

Greene No. 2001-CA-92, 2002 Ohio App. LEXIS 1912, *4 (Apr. 19, 2002). More

specifically, Crim.R. 11 does not require the trial court to advise a defendant of the

consequences a guilty plea has on prior felony convictions.   Dixon at ¶ 20.

      {¶16} Accordingly, the trial court was under no obligation to advise Randle of the

consequences his guilty plea would have on his community control.              The court’s

explanation to Randle that he would be subject to a mandatory prison term of two to eight

years, a mandatory fine, and forfeiture of three cell phones and $638, and Randle’s
acknowledgment that he understood the penalties involved in his guilty plea, was full

compliance with the trial court’s duty to inform Randle of the effect of his guilty plea.

       {¶17} Moreover, even if we were to find that the trial court should have informed

Randle of the consequences of his plea upon his community control in the two other cases

(which we do not), Randle does not argue that he would not have pleaded guilty to drug

trafficking, as amended in Count 2, had the court advised him that his guilty plea carried

consequences (i.e., a prison sentence) with respect to those two cases. Furthermore, he

cannot demonstrate that he was, in fact, prejudiced by the trial court’s failure to so advise

him because the court ran the three-year sentence in this case concurrent with the prison

sentences on the other two cases.

       {¶18} Accordingly, because the record reflects that the trial court fully complied

with Crim.R. 11, and Randle’s guilty plea was made knowingly, voluntarily, and

intelligently, the assignment of error is overruled.

       {¶19} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
