[Cite as State v. Draugh, 2016-Ohio-1240.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                  :

                Plaintiff-Appellee,             :             No. 15AP-632
                                                           (C.P.C. No. 13CR-6236)
v.                                              :
                                                        (REGULAR CALENDAR)
Quanique D. Draughn,                            :

                Defendant-Appellant.            :




                                         D E C I S I O N

                                     Rendered on March 24, 2016


                On Brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                Prichard, for appellee. Argued: Sheryl L. Prichard.

                On brief: Giorgianni Law LLC, and Paul Giorgianni, for
                appellant. Argued: Paul Giorgianni.

                  APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} Quanique D. Draughn, defendant-appellant, appeals the judgment of the
Franklin County Court of Common Pleas in which the court found him guilty of robbery, a
violation of R.C. 2911.02, a second-degree felony, and kidnapping, a violation of R.C.
2905.01, a first-degree felony.
        {¶ 2} On November 22, 2013, appellant was indicted on five total counts with
respect to two separate incidents involving two different victims, Robin Johnson and
Trequan Tidwell. The five counts in the indictment were as follows (hereafter, "F" refers
to a felony, and the number following the hyphen refers to the degree of the offense):
                Robin Johnson Incident in October 2013
                Count 1 – F-2 robbery
                Count 2 – F-3 robbery
No. 15AP-632                                                                             2


              Trequan Tidwell Incident in November 2013
              Count 3 – F-1 kidnapping
              Count 4 – F-2 robbery
              Count 5 – F-3 robbery

       {¶ 3} On June 5, 2014, appellant executed an entry of guilty plea form. The guilty
plea form indicated that appellant was pleading guilty to "Count 2: Robbery (F2)" and
"Count 3: Kidnapping (F1)." However, the F-2 counts of robbery are Counts 1 and 4. The
parties and trial court continued to refer to Count 2 as an F-2 robbery throughout the plea
hearing.
       {¶ 4} On June 27, 2014, the trial court held a sentencing hearing. At the hearing,
the prosecutor indicated that a clerical error had been made on the guilty plea form, in
that appellant was actually pleading guilty to Count 1, an F-2 robbery, and Count 2 was
being dismissed. Defense counsel indicated he had no objection to the change. After
orally sentencing appellant, appellant told the trial court that he thought it was
understood that he had nothing to do with the October 2013 robbery which was the basis
for Count 1. The trial court responded that he had pled guilty to the October 2013 offense.
Appellant responded that he had pled guilty to the November 2013 offense. The trial court
corrected appellant that he had pled guilty to the November 2013 kidnapping. After the
prosecutor and defense counsel indicated that they had no further questions, the court
concluded the hearing.
       {¶ 5} On June 30, 2014, the trial court entered a judgment finding appellant
guilty and sentencing him to an aggregate sentence of 13 years of imprisonment.
Appellant appeals the judgment, asserting the following two assignments of error:
              [I.] The trial court's judgment of conviction and sentence is
              based upon an ostensible guilty plea to which there was no
              mutual assent.

              [II.] The trial court's judgment of conviction and sentence
              resulted from ineffective assistance of counsel.

       {¶ 6} Appellant argues in his first assignment of error that the trial court's
judgment was based upon a guilty plea to which there was no mutual assent. " 'When a
defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently,
and voluntarily. Failure on any of those points renders enforcement of the plea
No. 15AP-632                                                                               3

unconstitutional under both the United States Constitution and the Ohio Constitution.' "
State v. Triplett, 10th Dist. No. 11AP-30, 2011-Ohio-4480, ¶ 9, quoting State v. Engle, 74
Ohio St.3d 525, 527 (1996). Crim.R. 11(C) addresses guilty pleas in felony cases and
requires a trial judge to determine whether the criminal defendant is fully informed of his
or her rights and understands the consequences of his or her pleas.
       {¶ 7} Although the trial court must strictly comply with Crim.R. 11 regarding
federal constitutional rights, the trial court need only substantially comply with the non-
constitutional provisions of the rule. State v. Enyart, 10th Dist. No. 08AP-184, 2008-
Ohio-6418, ¶ 15, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 14-17. The
non-constitutional rights about which a defendant must be informed are the nature of the
charges with an understanding of the law in relation to the facts, the maximum penalty,
and that, after entering a guilty plea, the court may proceed to judgment and sentence.
Crim.R. 11(C)(2)(a) and (b). " 'Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implication of his plea and the
rights he is waiving.' " Id. at ¶ 16, quoting Veney at ¶ 15. " 'In determining whether a
defendant understood the charge a court should examine the totality of the
circumstances.' " Enyart at ¶ 17, quoting State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-
Ohio-3167, ¶ 56. "For a trial court to determine whether a defendant is making a plea with
understanding of the nature of the charge, 'it is not always necessary that the trial court
advise the defendant of the elements of the crime, or to specifically ask the defendant if he
understands the charge, so long as the totality of the circumstances are such that the trial
court is warranted in making a determination that the defendant understands the
charge.' " Id., quoting State v. Rainey, 3 Ohio App.3d 441, 442 (10th Dist.1982). Indeed,
"[w]here a defendant indicates that he understands the nature of the charge, in the
absence of evidence to the contrary or anything in the record that indicates confusion, it is
typically presumed that the defendant actually understood the nature of the charge
against him." State v. Wangul, 8th Dist. No. 84698, 2005-Ohio-1175, ¶ 10, citing State v.
Dickey, 7th Dist. No. 03 CA 794, 2004-Ohio-3198, ¶ 11.
       {¶ 8} In the present case, appellant asserts that when he signed the plea form and
appeared at the plea hearing, he believed he was pleading guilty to two counts, both
involving Tidwell, while the trial court; State of Ohio, plaintiff-appellee; and appellant's
No. 15AP-632                                                                              4

counsel believed he was pleading guilty to kidnapping Tidwell and robbing Johnson. He
contends that, at the plea hearing, the parties and court consistently and repeatedly
referred to appellant pleading guilty to Count 2, which was an F-2, and the plea form also
indicated that he was pleading guilty to Count 2, an F-2, even though Count 2 was an F-3.
He also argues that, at the sentencing hearing, it was apparent that he believed he was
pleading guilty to robbing Tidwell (either Count 4, an F-2, or Count 5, an F-3). Appellant
contends that because he believed he was pleading guilty to crimes involving only one
victim in one incident (the November 2013 incident involving Tidwell), he expected his
sentence to be less severe.
       {¶ 9} Appellant is correct that, at the plea hearing, the parties and the court
consistently indicated that he was pleading guilty to Count 2 and referred to it as an F-2,
and the plea form also indicated that he was pleading guilty to Count 2, an F-2.
Appellant's portrayal of the sentencing hearing is also accurate. At the beginning of the
sentencing hearing, the prosecutor indicated that a clerical error had been made on the
guilty plea form, in that appellant was actually pleading guilty to Count 1, an F-2 robbery,
and Count 2 was being dismissed. Appellant's counsel indicated he had no objection to
the change. When the trial court asked appellant at the sentencing hearing if he had
anything to say on his own behalf, appellant stated, "I would just like to apologize to the
victim for the pain and suffering I put him through, my mom, my family, my son."
(Emphasis added.) (June 27, 2014 Tr. 9.) After the trial court orally announced the
findings and sentence, appellant and the trial court engaged in the following conversation:
              THE COURT: Do you have any questions, sir, about anything
              that I've said.

              THE DEFENDANT: I thought it was understood that I didn't
              have nothing to do with that October robbery.

              THE COURT: No, that wasn't understood. You pled guilty to
              the October 3rd, 2013, offense.

              THE DEFENDANT: I pleaded guilty to the November.

              THE COURT: As well as as the November kidnapping.

              All right. Anything else on behalf of the State?
No. 15AP-632                                                                              5

              [PROSECUTOR]: No, Judge. Thank you.

              THE COURT: On behalf of the Defendant?

              [DEFENSE COUNSEL]: No, Your Honor.

(June 27, 2014 Tr. 13-14.)

       {¶ 10} Based upon the totality of the circumstances, we find the record
demonstrates that appellant failed to enter his guilty plea knowingly, intelligently, and
voluntarily. Although the state is correct that the record of the plea hearing does not
conclusively show that appellant believed he was pleading guilty to only counts related to
Tidwell, and that the plea and sentencing hearing transcripts do not show that appellant
believed he would receive a lesser sentence because he thought he was pleading guilty to
counts related only to Tidwell, we believe the transcripts of the plea and sentencing
hearings collectively demonstrate sufficient confusion related to the charges to which he
was pleading guilty and appellant's understanding of those charges to warrant another
plea hearing. The erroneous references at the plea hearing and on the plea form indicating
that Count 2 was an F-2 robbery could have caused appellant to believe he was pleading
guilty to the Count 4 F-2 robbery involving Tidwell. Furthermore, appellant explicitly
indicated at the sentencing hearing that he believed he had pled guilty to only the counts
that involved the November 2013 Tidwell incident. This belief was consistent with
appellant's prior use of the singular terms "victim" and "him" at the sentencing hearing.
There was no indication in the transcript that appellant's confusion was ever resolved.
Given the error made at the plea hearing and in the plea form, and given appellant's
statements at the sentencing hearing, we cannot presume appellant actually understood
the nature of the charges against him and the charges to which he pled guilty. Therefore,
instead of making presumptions as to what appellant knew and when, we believe the
more prudent course is to return the matter to the trial court to retake appellant's plea to
ensure appellant's rights under Crim.R. 11 have been adequately protected. For these
reasons, we sustain appellant's first assignment of error. Given this determination,
appellant's second assignment of error is moot.
       {¶ 11} Accordingly, appellant's first assignment of error is sustained and his
second assignment of error is moot. The judgment of the Franklin County Court of
No. 15AP-632                                                                          6

Common Pleas is reversed and the matter is remanded to that court to conduct a plea
hearing that is in accord with Crim.R. 11 and constitutional mandates.
                                                                   Judgment reversed;
                                                       cause remanded with instructions.

                           SADLER and HORTON, JJ., concur.

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