[Cite as State v. Nevels, 2020-Ohio-915.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                             No. 108395
                 v.                               :

JAMIE E. NEVELS,                                  :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: March 12, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-627351-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kerry A. Sowul, Assistant Prosecuting
                 Attorney, for appellee.

                 Law Office of Jaye M. Schlachet, Jaye M. Schlachet, and
                 Eric M. Levy, for appellant.


MICHELLE J. SHEEHAN, J.:

                   Defendant-appellant Jamie E. Nevels appeals his conviction following

a guilty plea. Because we find Nevels’s plea was not knowingly, intelligently, and

voluntarily made, we reverse.
                       Procedural History and Substantive Facts

               On March 30, 2018, the Cuyahoga County Grand Jury charged Nevels

in an 11-count indictment as follows:            Counts 1-3, rape in violation of

R.C. 2907.02(A)(2), with one- and three-year firearm specifications and a sexually

violent    predator    specification;   Count     4,   complicity      in   violation   of

R.C. 2923.03(A)(2), with one- and three-year firearm specifications and a sexually

violent    predator    specification;   Count    9,    kidnapping      in   violation   of

R.C. 2905.01(A)(4), with one- and three-year firearm specifications, a sexual

motivation specification, and a sexually violent predator specification; Count 10,

aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year

firearm specifications; and Count 11, kidnapping in violation of R.C. 2905.01(A)(2),

with one- and three-year firearm specifications.1 The indictment stems from an

incident that occurred on or about June 13, 2001. At the time Nevels was charged

in this case, he was serving a 20-year sentence for several charges, including rape,

in Cuyahoga C.P. No. CR-03-437396.

                The court appointed a public defender to represent Nevels in this case.

The record shows that the public defender initially requested discovery from the

state on May 3, 2018, and filed a supplemental request for discovery on June 27,

2018. The public defender then filed a motion to dismiss for preindictment delay,

which the state opposed. On July 12, 2018, Nevels retained an attorney. On




      1   Counts 5 through 8 pertained only to Nevels’s codefendant.
December 19, 2018, the state filed a notice of intent to use Evid.R. 404(B) evidence

of other acts, which Nevels’s newly retained counsel opposed. Nevels’s new counsel

also filed a motion to dismiss.

               On March 13, 2019, the court called the case for trial. Prior to the start

of trial, however, the court addressed the defense’s motion to dismiss and

questioned Nevels’s new attorney’s basis for the motion:

      Court:        I am perplexed, [counsel], as to the basis for your motion.
                    I understand that the reason for the motion [to dismiss]
                    is because you believe that it was a consensual act and
                    therefore you’ve moved this court to dismiss these
                    charges of rape based upon the fact that consent was
                    given, is that correct?

      Counsel:      That is correct, your Honor.

      Court:        Okay. Now, what is the legal basis for such a motion?

      Counsel:      The affirmative defense of the fact that my client had
                    consensual — it is upon information and belief that the
                    victim will testify and there’s reports that part of the acts
                    was consensual, and that’s why I was requesting for
                    Count 1 and the second count — that part of these acts
                    were consensual, so consent would be the defense and
                    the basis for the dismissal.           There’s also upon
                    information and belief that the co-defendant is going to
                    testify in regards to there being a consent as well * * *.

      Court:        What case law do you have to support such a motion?

      Counsel:      As far as consent? There [are] several —

      Court:        Tell me one time in any court in the [s]tate of Ohio where
                    someone has alleged consent on a rape case and by
                    motion you ask the judge to dismiss the charges.

      Counsel:      There isn’t, [y]our Honor. I just — I filed it, and I
                    understand it’s probably a [Crim.R.] 29 request * * *.
                    However, for my client I did want to at least file it in good
                    faith that —

      Court:        What’s the purpose of filing such a motion? This is a very
                    serious case.

               The court then continued to inquire as to defense counsel’s overall

experience in handling felony cases, and both the court and the prosecutor noted for

the record that “this is a life case.” When the court asked defense counsel to explain

his experience in representing individuals on first-degree felony cases, he replied, “I

have a bar card and [I am] qualified as an attorney,” yet he conceded that he has “not

necessarily” represented anyone on a “felony one” case.

               At this point, the court reminded counsel of his obligations under the

Rules of Professional Responsibility and the court read from the section concerning

an attorney’s competence, legal knowledge, and skill. After reading from the rules,

the court asked defense counsel, “[W]here do you think you stand?” Nevels’s

counsel continued to defend his experience, stating that although he is young, he has

had “the highest profile cases in Ohio” for his age and he is “the best lawyer in Ohio.”

Counsel further asserted that he filed the motion to dismiss in order to “build a

record” in the case, he has the experience necessary to represent Nevels, he has

consulted with other attorneys regarding his client’s case, and his client is not

disadvantaged by his representation. The court then stated that if Nevels is satisfied

with defense counsel’s representation, it would not compel him to take another

attorney, and as an added precaution, the court instructed a public defender to sit

second chair, in an advisory role.
              Thereafter, Nevels addressed the court, thanking the court for

considering his attorney’s inexperience, and inquired about hiring a new attorney.

Nevels stated that “I just want what’s best for me because I know who I am and * * *

I know my innocence in this case, and I just would like to have the best person

representing me that I can have.” The court then asked Nevels if he wanted a

continuance in order to hire new counsel. Defense counsel asked to confer with his

client, and the court recessed.

              After the court’s recess, the state advised the court that the parties had

reached an agreement. There was no further discussion regarding Nevels’s desire to

retain a different attorney. Nevels agreed to plead guilty to the rape in Count 1, as

amended, to be classified as a sexual predator, and to have no contact with the

victim. In exchange for the guilty plea, the state agreed to amend Count 1 to delete

the one-year firearm specification and the sexually violent predator specification.

The state also agreed to request the remaining charges be nolled. Finally, the state

advised the court that the parties agreed to a recommended ten-year sentence,

which included seven years on the base charge and three years on the three-year

firearm specification, to run consecutive to Nevels’s case in CR-03-437396. The

state noted for the record that the public defender was present for the hearing. The

public defender confirmed the plea agreement, advised the court that she was

initially involved in the case so she was familiar with the discovery and the facts of

the case, she had met with Nevels previously on several occasions, and the plea is

being made knowingly, voluntarily, and intelligently.
              The court then asked Nevels if he wished to take the plea agreement,

to which Nevels responded, “No, I don’t but — no, I don’t, but I have to.” The court

explained to Nevels that he does not have to take the plea agreement if he does not

wish to, and Nevels replied, “Yes, I do, because if I don’t, I go to trial and lose, I’m

going to do life. I don’t want to do my life. I want to see my son, my wife, so I’m

going to take this * * * Yes.” At that point, the court engaged in a Crim.R. 11 colloquy,

asking Nevels if he can read and write and if he understands the proceeding, to

which Nevels replied, “Yes.” Nevels advised the court that he was not under the

influence of any drugs or alcohol and that he was satisfied with the representation

he received from his attorneys.

              The court proceeded to advise Nevels of the constitutional rights he

was waiving by pleading guilty, as well as the nature of the charge and its possible

maximum sentence of 10 years in prison and a maximum fine of $20,000. The court

also advised Nevels that the firearm specification must be served consecutive to any

sentence he received. Nevels indicated that he understood the court’s advisements.

The court asked Nevels if he understood that there was a recommended agreed

sentence of ten years, which included seven years for the rape and three years for

the firearm specification, and the sentence would be served consecutive to his prior

case, CR-03-437396. Nevels said, “Yes, I do,” but he then requested the sentence be

run concurrently, stating, “I don’t mean to be disrespectful, but is there any way I

can get it [run] concurrent * * *.” The transcript of the hearing noted that “defense

counsel and their client conferred.” Nevels then apologized, the court explained the
agreed sentence to Nevels, and he stated that he understood. Thereafter, the court

discussed Nevels’s postrelease control and his agreed sexual predator classification

and Nevels stated that he understood.

               The hearing continued as follows:

      Court:        How do you plea[d], sir, guilty or not guilty?

      Defendant: Guilty. Guilty.

      Court:        And are you, in fact, guilty, sir?

      Defendant: No, I’m not.

      Court:        Oh, then we’ll go to trial.

      Defendant: Huh?

      Court:        If you’re not guilty—

      Defendant: Yes.

      Court:        — we’ll go to trial.

      Defendant: Yes. Yes.

      Court:        If you’re not guilty, we can go to trial and the jury will find
                    you not guilty. But if you’re guilty and we go to trial,
                    they’ll find you guilty. And nobody can tell you what to
                    do. You have to make up your own mind. You
                    understand?

      Defendant: Yes.

      Court:        So let’s try it again. How do you plea[d], guilty or not
                    guilty?

      Defendant: Guilty.

      Court:        And are you, in fact, guilty?
      Defendant: Yes.

               At this point, the court found that Nevels entered his plea knowingly,

voluntarily, and “with a full understanding of his constitutional and trial rights.”

And the prosecutor, the public defender, who was serving in an advisory capacity,

and Nevels’s retained attorney agreed that the court complied with Crim.R. 11. The

court then accepted Nevels’s guilty plea.

               The following morning, the court held a sentencing hearing. The state

advised the court that the victim could not be present but she was satisfied with the

plea and the recommended agreed sentence. The court asked Nevels if he wished to

address the court. Although Nevels conceded that he pleaded guilty the previous

day, he now attempted to explain to the court that he believed he “had no choice”

but to take the plea. The following exchange occurred:

      Defendant: I just want to apologize to my son and my wife, my family
                 for putting myself in the position. I apologize to the court
                 for putting myself in the position. I just — I don’t want
                 to be that guy, but I took the plea because I had no choice.

      Court:        No. You took the plea, and you said you did it.

      Defendant: Okay. I did, but — that’s all. That’s all.

      Court:        No one’s forced you to plea.

      Defendant: Okay.

      Court:        In this courtroom, if you’re not guilty, you say you’re not
                    guilty. If the jury believes that you’re not guilty, they’ll
                    find you not guilty. If they believe you’re guilty, they’ll
                    find you guilty.
              Thereafter, the court heard from Nevels’s retained attorney, and the

public defender declined to add any additional comments. The court then imposed

a prison sentence consistent with the parties’ agreement: seven years on the base

charge of rape, plus three years on the firearm specification, to be served consecutive

to the base charge. The court also ordered the sentence in this case to be served

consecutive to Nevels’s case in CR-03-437396, and it made consecutive sentence

findings. Finally, the court found Nevels to be a sexual predator, advised him of his

reporting requirements, and advised Nevels of his postrelease control.

              Nevels now appeals from his conviction, assigning two errors for our

review.

                                Assignments of Error

      I.     Appellant’s guilty plea is unconstitutional and must be vacated
             as it was not entered knowingly, intelligently, and voluntarily,
             where the appellant maintained his innocence when entering
             his plea and the trial court failed to comply with the Alford
             mandates by conducting the required inquiry and properly
             advising Appellant prior to accepting the plea.

      II.    Appellant’s guilty plea must be vacated as he was denied his
             Sixth Amendment right to competent trial counsel, which
             negatively prevented him from defending the charges against
             him, and the cumulative errors of counsel resulted in him
             erroneously entering a guilty plea, which was not made
             knowingly, intelligently, and voluntarily due to the serious
             deficiency in the representation without such Appellant would
             not have entered a guilty plea.

                                     Guilty Plea

              In his first assignment of error, Nevels contends that his guilty plea

was not knowingly, intelligently, and voluntarily made where he maintained his
innocence when entering his plea and the court failed to comply with the mandates

of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and

where he did not understand the nature of the charges and the possible penalties.

              Where a defendant enters a guilty plea in a criminal matter, “the plea

must be made knowingly, intelligently, and voluntarily[, and f]ailure on any of those

points renders enforcement of the plea unconstitutional under both the United

States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525,

527, 660 N.E.2d 450 (1996); see also State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 7.           In determining whether a criminal

defendant knowingly, intelligently, and voluntarily entered a guilty plea, we must

first review the record to determine whether the trial court complied with

Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128-129, 566 N.E.2d 658 (1991);

State v. Brown, 8th Dist. Cuyahoga No. 107933, 2019-Ohio-3516, ¶ 17.

              Crim.R. 11(C) delineates certain constitutional and procedural

requirements with which a trial court must comply prior to accepting a guilty plea.

Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in a felony case

without personally addressing the defendant 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 * * *, 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.

              The purpose of Crim.R. 11(C)(2) is “to convey to the defendant certain

information so that he [or she] can make a voluntary and intelligent decision

whether to plead guilty.” State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d

115 (1981); State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 5.

When a trial court complies with Crim.R. 11(C)(2) in accepting a plea, there is a

presumption that the defendant’s plea was knowingly, intelligently, and voluntarily

made. State v. Nelson, 8th Dist. Cuyahoga No. 107823, 2019-Ohio-3365, ¶ 16. In

considering whether a plea was made knowingly, intelligently, and voluntarily, we

examine the totality of the circumstances through a de novo review. State v.

Albright, 8th Dist. Cuyahoga No. 107632, 2019-Ohio-1998, ¶ 16.

              Crim.R. 11(C)(2)(c) sets forth the five constitutional rights a trial court

must advise a defendant he is waiving before the court can accept a guilty plea. State

v. Rembert, 8th Dist. Cuyahoga No. 99707, 2014-Ohio-300, ¶ 8, citing Boykin v.

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

court must strictly comply with advisements concerning a defendant’s constitutional

rights delineated in Crim.R. 11(C)(2)(c). Rembert. Where the trial court fails to
explain these constitutional rights, it is presumed the plea was entered involuntarily

and was unknowingly made and therefore invalid. State v. Griggs, 103 Ohio St.3d

85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

              Crim.R. 11(C)(2)(a) and (b) delineate a defendant’s nonconstitutional

rights, such as the nature of the charges, the maximum possible penalty, and the

effect of the guilty plea. The substantial-compliance standard of review applies to

these rights. State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). Under

this 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. Id. And a

defendant who challenges his plea must show prejudice — whether the plea would

not have otherwise been made. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d

474 (1990); State v. Wilkerson, 8th Dist. Cuyahoga No. 100865, 2014-Ohio-3919,

¶ 11.

              The Ohio Supreme Court has noted that there is “no easy or exact way

to determine what someone subjectively understands,” but where the defendant

receives the proper information, “we can ordinarily assume that he understands that

information.” State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979); Nelson,

8th Dist. Cuyahoga No. 107823, 2019-Ohio-3365, at ¶ 19. In deciding whether the

defendant had the required information, we look at the facts and circumstances

surrounding the case. Carter.
              Here, Nevels contends, notwithstanding the Crim.R. 11 plea colloquy,

that he made claims of innocence that amounted to an Alford plea such that the trial

court was required to additionally inquire into the factual circumstances

surrounding his charges. And because the court failed to so inquire, according to

Nevels, his plea must be vacated.

              A guilty plea that is made contemporaneously with claims of

innocence is known as an Alford plea. North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160, 27 L.Ed.2d 162 (1970); Albright, 8th Dist. Cuyahoga No. 107632,

2019-Ohio-1998 at ¶ 23; Wilkerson, 8th Dist. Cuyahoga No. 100865, 2014-Ohio-

3919, at ¶ 17 (“An Alford plea results when a defendant pleads guilty yet maintains

actual innocence of the crime charged.”). And where a defendant enters an Alford

plea, the trial court must inquire into the factual basis surrounding the charges to

determine whether the defendant is making an intelligent and voluntary guilty plea.

Albright at ¶ 23, citing State v. Corbett, 8th Dist. Cuyahoga No. 99649, 2013-Ohio-

4478, ¶ 6. The trial court may then accept the guilty plea only if a factual basis for

the guilty plea exists in the record. Id. “[A] guilty plea may be accepted despite

protestations of innocence where the validity of the plea cannot seriously be

questioned in view of a strong factual basis for the plea demonstrated by the record.”

State v. Casale, 34 Ohio App.3d 339, 340, 518 N.E.2d 579 (8th Dist.1986), citing

Alford.

              Although neither Nevels nor his trial counsel specifically represented

to the trial court that Nevels was making an Alford plea, a valid Alford plea exists
where the defendant enters a guilty plea while proclaiming his innocence on the

record. State v. Johnson, 8th Dist. Cuyahoga No. 103408, 2016-Ohio-2840, ¶ 27.

Here, Nevels arguably claimed his innocence on three occasions, one of which was

made contemporaneously with his guilty plea.

               The record demonstrates that prior to the plea colloquy, the trial court

questioned defense counsel’s experience with felony cases. When Nevels addressed

the court’s concern in this regard, he contemplated retaining a new attorney, stating

that he would like to have “the best person representing me” because “I know my

innocence in this case.” After a brief recess, during which defense counsel conferred

with Nevels, the prosecutor advised the court that a plea agreement had been

reached and she outlined the terms of the agreement on the record. At this point,

the following exchange occurred:

      Court:        Mr. Nevels, do you wish to take the plea agreement?

      Defendant: No, I don’t but — no, I don’t, but I have to.

      Court:        If you don’t want to take it, you don’t have to.

      Defendant: Yes, I do, because if I don’t, I go to trial and lose, I’m
                 going to do life. I don’t want to do my life. I want to see
                 my son, my wife, so I’m going to take this —

      Court:        So do you want to take this plea agreement?

      Defendant: Yes.

               Despite Nevels’s apparent concerns, he proceeded with the plea

colloquy. After the court advised him of his constitutional and procedural rights and

explained his sentence, the court asked Nevels how he wished to plead, and he
replied, “Guilty.” When the court next asked him if he was in fact guilty, Nevels said,

“No, I am not.” Rather than inquiring into Nevels’s assertion, the court stated, “If

you’re not guilty, we can go to trial and the jury will find you not guilty. But if you’re

guilty and we go to trial, they’ll find you guilty. And nobody can tell you what to do.

You have to make up your own mind. You understand? * * * So let’s try it again.

How do you plea[d], guilty or not guilty?” Nevels then pleaded guilty and stated that

he was in fact guilty.

               The proper taking of a guilty plea requires “a meaningful dialogue

between the court and the defendant.” Garfield Hts. v. Brewer, 17 Ohio App.3d 216,

218, 479 N.E.2d 309 (8th Dist.1980). And where a defendant protests innocence

but nevertheless is willing to plead guilty, the trial court must determine that the

defendant “has made a rational calculation” to plead guilty notwithstanding his

belief that he is innocent. State v. Padgett, 67 Ohio App.3d 332, 338-339, 586

N.E.2d 1194 (2d Dist.1990). The defendant’s protestations require the court’s

inquiry, “at a minimum,” into the defendant’s reasons for deciding to plead guilty

notwithstanding his purported innocence and the defendant’s protestations may

require “inquiry concerning the state’s evidence in order to determine that the

likelihood of the defendant being convicted of offenses of equal or greater magnitude

than the offenses to which he is pleading guilty is great enough to warrant an

intelligent decision to plead guilty.” Id.

               Here, the totality of the record shows that the trial court failed to

engage Nevels in any meaningful dialogue concerning the sincerity of his statement
that he was not guilty. Although Nevels indicated at some point in the hearing that

he was taking the plea to avoid facing a life prison term, the trial court did not at any

time inquire into the factual basis surrounding the charges to determine that

Nevels’s fear of receiving a life sentence was knowing and intelligent “in the sense

that it was a rational response” to the state’s evidence. Padgett at 339. In fact, the

record is devoid of any discussion of the facts or evidence concerning the alleged

offense from 2001 “against which the trial court could weigh [Nevels’s] claims of

innocence against [his] willingness to waive trial.” Casale, 34 Ohio App.3d at 340,

518 N.E.2d 579. The court’s advisement that Nevels “can go to trial” if he believes

he is innocent is insufficient for purposes of satisfying the mandates of an Alford

plea.

               Under the unique circumstances presented here, where the court

initially expressed concerns regarding defense counsel’s experience in handling

first-degree felony cases and Nevels expressed a desire to obtain “the best” counsel

in light of his innocence, we find that the trial court erred in accepting Nevels’s guilty

plea. The guilty plea was not made knowingly, intelligently, or voluntarily in light of

the fact that the trial court accepted Nevels’s plea without inquiring into a factual

basis of the charges after Nevels offered statements of innocence. State v. Jones,

8th Dist. Cuyahoga No. 97674, 2012-Ohio-2512, ¶ 8.

               Nevels’s first assignment of error is sustained.

               Based on our resolution of Nevels’s first assignment of error, his

second assignment of error alleging ineffective assistance of counsel is moot.
              Judgment reversed, and case remanded to the lower court for further

proceedings consistent with this opinion.

      It is ordered that appellant recover of said appellee 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.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
