[Cite as State v. Frazier, 2014-Ohio-4931.]




                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 101125



                                              STATE OF OHIO

                                                  PLAINTIFF-APPELLEE

                                                   vs.

                                        DARTANYON FRAZIER

                                                  DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                       Case No. CR-13-576309

             BEFORE:          Blackmon, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.

             RELEASED AND JOURNALIZED:                    November 6, 2014

                                                    -i-
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

Jeffrey M. Gamso
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Anthony T. Miranda
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1}    Appellant Dartanyon Frazier appeals his conviction and assigns the following

error for our review:

       I. The trial court erred when it accepted Mr. Frazier’s guilty plea without ensuring
       that he understood how the risks and benefits of the plea compared to the risk of
       going to trial.

       {¶2}    Having reviewed the record and pertinent law, we affirm Frazier’s conviction.

The apposite facts follow.

       {¶3}    On August 7, 2013, the Cuyahoga County Grand Jury indicted Frazier on three

counts of aggravated robbery, three counts of robbery, three counts of petty theft, and two counts

of having weapons while under disability. The aggravated robbery and robbery counts had one

and three-year firearm specifications attached. At his arraignment on August 12, 2013, Frazier

pleaded not guilty to the charges.

       {¶4}    On January 22, 2014, pursuant to a plea agreement with the state, Frazier pleaded

guilty to three counts of robbery that had been amended to third-degree felonies with one-year

firearm specification attached. Frazier also pleaded guilty to one count of having weapons while

under disability with one-year firearm specification attached. Pursuant to the agreement, the

state dismissed the remaining charges.

       {¶5} On February 13, 2014, the trial court sentenced Frazier to a total of four years and

three months in prison.

                                             Guilty Plea

       {¶6} In the sole assigned error, Frazier argues his plea was not knowingly, intelligently,

or voluntarily entered, because the trial court failed to ensure that he understood the risks and

benefits of pleading guilty versus taking the matter to trial.
          {¶7}   Crim.R. 11(C) sets forth the requirements for a valid plea. It states, in pertinent

part:

          (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.

          (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 a 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.

          {¶8}   To ensure that pleas conform to Crim.R. 11, the trial judge must engage the

defendant in a colloquy before accepting his or her plea. See State v. Ballard, 66 Ohio St.2d 473,

423 N.E.2d 115 (1981), paragraph one of the syllabus. “Ohio Crim.R. 11(C) was adopted in

order to facilitate a more accurate determination of the voluntariness of a defendant’s plea by

ensuring an adequate record for review.” State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474

(1990).

          {¶9}   Crim.R. 11(C)(2)(c) delineates the five constitutional rights a trial court must

personally advise a defendant he is waiving before the court can accept a guilty plea. See Boykin

v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). For these

constitutional rights delineated in Crim.R. 11(C)(2)(c), we require strict compliance.         State v.

Moviel, 8th Dist. Cuyahoga No. 86244, 2006-Ohio-697, ¶ 10. When the trial court fails to
explain these constitutional rights, it is presumed the plea was entered involuntarily and

unknowingly made and therefore invalid. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

814 N.E.2d 51, ¶ 12.

       {¶10} On the other hand, regarding a defendant’s nonconstitutional rights delineated in

Crim.R. 11(C)(2)(a) and (b), such as the maximum possible penalty, a substantial-compliance

standard applies. State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). The test for

prejudice is whether the plea would have otherwise been made. Nero at 108. Under the

substantial-compliance standard, a slight deviation from the text of the rule is permissible, 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.

       {¶11} Preliminarily, we note, in the instant case, Frazier admits that the trial court

properly advised him of the constitutional and nonconstitutional rights that he would be waiving

by pleading guilty. Frazier also opined that it was laudable that the trial court went beyond the

minimum requirements of       Crim.R. 11.

       {¶12} Our review of the plea colloquy reveals a textbook adherence to the respective

constitutional and nonconstitutional requirements of Crim.R. 11. Throughout the colloquy,

Frazier signified his understanding of the constitutional rights he was waiving, the nature of each

charge, and the maximum penalties involved.

       {¶13} Nonetheless, Frazier now argues that the trial court should have reviewed the

merits of the plea agreement.    However, our research has not revealed any district in Ohio that

requires the trial court to engage in a cost-benefit analysis with the defendant prior to accepting a

guilty plea. Frazier concedes as much. Thus, because Crim.R. 11 does not require the trial
court to weigh the merits of the plea agreement negotiated between the state and defendant, we

find no worth in this argument.    Accordingly, we overrule the sole assigned error.

       {¶14} Finally, Frazier raises in a footnote that the trial court announced at sentencing that

it was finding him guilty of amended counts 1, 4, 9, and 7, instead of amended counts 3, 4, 9, and

7. Our review of the record indicates that Frazier in fact pleaded guilty to amended counts 3, 4,

9, and 7 pursuant to the plea agreement with the state and the trial court’s journal entry correctly

reflects the pleas entered. Here, because the journal entry correctly reflects the proper counts,

the trial court’s announcement of one incorrect count at the sentencing hearing was harmless.

Moreover, a court speaks through its journal entries. State v. Williams, 8th Dist. Cuyahoga No.

100042, 2014-Ohio-1618, citing State v. May, 8th Dist. Cuyahoga No. 99064, 2013-Ohio-2697, ¶

16.

       {¶15} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.
PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
