[Cite as State v. Drake, 2017-Ohio-4027.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                          C.A. No.    16CA0056-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
BRANDON K. DRAKE                                       COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   16 CR 0048

                                 DECISION AND JOURNAL ENTRY

Dated: May 30, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, Brandon Drake, appeals his conviction from the Medina County Court

of Common Pleas. This Court reverses.

                                                  I.

        {¶2}     Mr. Drake pled guilty to a single count of unlawful sexual conduct with a minor,

in violation of R.C. 2907.04(A), a felony of the third degree. During the plea colloquy, the trial

court advised Mr. Drake that the maximum prison sentence for the offense was thirty-six months.

After a sentencing hearing, Mr. Drake was sentenced to forty-eight months in prison. Mr. Drake

now appeals, raising a single assignment of error.

                                                 II.

                                         ASSIGNMENT OF ERROR

        THE COURT IMPROPERLY ADVISED THE DEFENDANT OF THE
        MAXIMUM     PENALTIES    AND   THEREFORE    A    KNOWING,
        INTELLIGENT[,] AND VOLUNTARY PLEA WAS NOT MADE[.]
                                                2


          {¶3}   In his sole assignment of error, Mr. Drake argues his plea was not knowing,

intelligent, and voluntary because the trial court failed to advise him of the maximum potential

sentence he could receive for his plea to unlawful sexual conduct with a minor. This Court

agrees.

          {¶4}   “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527 (1996). Prior

to accepting a guilty plea, a trial court must engage in a dialogue with the defendant as described

in Crim.R. 11(C) to ensure the plea is being made knowingly, intelligently, and voluntarily.

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 25-26. “[I]n conducting this colloquy,

the trial judge must convey accurate information to the defendant so that the defendant can

understand the consequences of his or her * * * plea.” Id. at ¶ 26. The court must strictly

comply when advising the defendant of the constitutional requirements listed in Crim.R.

11(C)(2)(c). State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 22. The court must

substantially comply when providing the nonconstitutional notifications in Crim.R. 11(C)(2)(a)

and (b). Id. at ¶ 14.

          {¶5}   In this context, “[s]ubstantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and the rights

he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, citing State v. Stewart, 51 Ohio St.2d 86

(1977) and State v. Carter, 60 Ohio St.2d 34, 38 (1979). “[A] defendant who challenges his

guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show

a prejudicial effect. The test is whether the plea would have otherwise been made.” (Internal

citations omitted.) Nero at 108. A defendant may challenge his guilty plea either through a
                                                    3


motion to withdraw the plea in the trial court or on direct appeal. State v. Lockhart, 9th Dist.

Summit No. 26799, 2015-Ohio-856, ¶ 6.

        {¶6}    Under Crim.R. 11(C)(2)(a), a trial court must “[d]etermin[e] that the defendant is

making the plea voluntarily, with [an] understanding of the nature of the charges and of the

maximum penalty involved, * * *.” A trial court fails to substantially comply with this rule when

it gives a defendant inaccurate information about the maximum sentence that he is facing. See

State v. Wagner, 9th Dist. Medina No. 08CA0063-M, 2009-Ohio-2790, ¶ 12; see also State v.

Ashley, 9th Dist. Medina No. C.A. 2126-M, 1993 WL 89744, *2 (Mar. 31, 1993) (“The failure of

the trial court to properly inform [a defendant] of the maximum penalty applicable to his offense

is reversible error.”).

        {¶7}    Here, the trial court engaged in a detailed dialogue with Mr. Drake. However, as

part of that dialogue, the trial court advised Mr. Drake: “It’s a single count, felony three unlawful

sexual conduct with a minor, a felony of the third degree. I think the maximum punishment is

thirty-six months. Am I correct?” to which the prosecutor responded, “Yes.” Later during the

plea, the court told Mr. Drake, “I have indicated to you this is a felony of the third degree, the

maximum punishment being thirty-six months in prison * * *.” The court found Mr. Drake’s

guilty plea to be “made knowingly, voluntarily, and intelligently.”

        {¶8}    The trial court incorrectly advised Mr. Drake as to the maximum possible penalty

for the offense. R.C. 2929.14(A)(3)(a) provides that, for the offense of unlawful sexual conduct

with a minor, a felony of the third degree1, “the prison term shall be twelve, eighteen, twenty-

four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.”


1
  Unlawful sexual conduct with a minor is a third degree felony only when the offender is ten or
more years older than the other person. During the plea colloquy, the trial judge read Mr. Drake
the indictment including, “and further, that you’re ‘ten or more years older than Jane Doe.’”
                                                 4


       {¶9}    While the State concedes that Mr. Drake was not advised of the correct maximum

penalty during his plea, it argues his conviction should be affirmed because the court

substantially complied with Crim.R. 11, Mr. Drake did not provide a transcript of his

arraignment, and Mr. Drake failed to prove any prejudice. The State’s arguments are without

merit. As already stated, when a trial court misinforms a defendant of the maximum penalty, the

court fails to substantially comply with Crim.R. 11. See Wagner, 2009-Ohio-2790, at ¶ 12.

       {¶10} The State contends that Mr. Drake failed to meet his burden on appeal because he

submitted only a partial transcript, i.e. the transcript of the plea and the sentencing. It suggests

that Mr. Drake “may” have been advised of the correct maximum penalty during his arraignment

and, therefore, made his plea with knowledge of the maximum penalty. “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.” Nero, 56 Ohio St.3d at 107. The

mandates of Crim.R. 11 apply to the plea and therefore, not only did Mr. Drake submit the

necessary transcript, a transcript of the arraignment would have had little bearing on his appeal.

Even assuming, as the State urges, that Mr. Drake was previously told the correct maximum

penalty because “this Court must presume the validity and regularity of the trial court’s

arraignment proceeding,” the State fails to explain how a correct advisement at the time of

arraignment could possibly negate a later, incorrect advisement at the time Mr. Drake was

entering his guilty plea.

       {¶11} “‘[I]t is axiomatic that a defendant must know the maximum penalty involved

before the trial court may accept his guilty plea.’” State v. Puckett, 4th Dist. Scioto No.

03CA2920, 2005-Ohio-1640, ¶ 9, quoting State v. Corbin, 141 Ohio App.3d 381, 386-387 (8th

Dist.2001), citing State v. Wilson, 55 Ohio App.2d 64 (1st Dist.1978) and State v. Gibson, 34
                                                5


Ohio App.3d 146 (8th Dist.1986). “The potential sentence hanging over a pleading defendant is

one of the important matters on his mind, if not the most important, * * *.” Wilson at 66. In the

present matter, Mr. Drake pled guilty to unlawful sexual conduct with a minor with the

understanding that the maximum potential penalty he could receive at sentencing would be

thirty-six months in prison. Instead, he was sentenced to forty-eight months in prison. Albeit

statutorily permissible, Mr. Drake’s sentence exceeds the maximum sentence he was advised he

could receive when he entered his plea. Based upon the totality of the circumstances, this Court

cannot conclude that Mr. Drake subjectively understood the implications of his plea and must

conclude that his plea was not made knowingly, intelligently, and voluntarily.

       {¶12} This case is unlike Wagner. In Wagner, this Court could not infer any prejudice.

Wagner, 2009-Ohio-2790, at ¶ 16. In that case, the defendant was advised at the plea hearing

that the maximum penalty was thirty months in prison. Id. at ¶ 12. In actuality, the maximum

penalty was seven and one half years in prison. Id. The defendant was sentenced to eighteen

months in prison. Id. at ¶ 4. Although the defendant was misinformed of the maximum penalty,

he received a sentence that was less than the amount that he was informed he faced. By contrast,

in the present case, Mr. Drake was sentenced to a longer period of incarceration than he was

informed that he faced.    When a defendant receives a sentence that exceeds what he was

informed by the court was the maximum penalty, the prejudice is apparent on its face. See State

v. Schmidt, 11th Dist. Portage No. 2012-P-0034, 2015-Ohio-2450, ¶ 22 (“Appellate courts have

reversed guilty pleas when the trial court understated the maximum penalty at the plea hearing

and then imposed an actual sentence greater than the understated plea.”).
                                                 6


                                                III.

       {¶13} Mr. Drake’s sole assignment of error is sustained. The judgment of the Medina

County Court of Common Pleas is reversed, Mr. Drake’s guilty plea is vacated, and this cause is

remanded for further proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT



HENSAL, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:

JOHN D. MIZANIN, JR., Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
