[Cite as State v. Davis, 2015-Ohio-178.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 101338




                                            STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                           RICHARD L. DAVIS

                                                        DEFENDANT-APPELLANT




                                        JUDGMENT:
                            AFFIRMED IN PART, REVERSED IN PART,
                                      AND REMANDED




                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
               Case Nos. CR-13-571424-A, CR-13-576744-B, and CR-14-581882-A

        BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: January 22, 2015
ATTORNEY FOR APPELLANT

Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Lon’Cherie’ Darchelle Billingsley
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Richard Davis (“Davis”), appeals his conviction and sentence.

We find some merit to the appeal, affirm in part, and reverse in part.

       {¶2} Davis was charged with several drug-related offenses in three separate cases. In

CR-13-571424-A, Davis pleaded guilty to one count of drug trafficking with a juvenile

specification, two counts of drug trafficking without specifications, two counts of drug

possession, and one count of possessing criminal tools. Two of the drug trafficking charges

were fifth-degree felonies, and the drug trafficking charge with the juvenile specification was a

fourth-degree felony. None of the convictions merged for sentencing, and the court sentenced

Davis to 12 months on each count, to be served concurrently.

       {¶3} In CR-13-576744-B, Davis pleaded guilty to two counts of drug trafficking, one

count of drug possession, and one count of illegal use of food stamps. All of the charges were

fifth-degree felonies. None of the convictions merged for sentencing, and the court sentenced

Davis to 12 months on each count, to be served concurrent to one another and concurrent to

CR-13-571424-A.

       {¶4} In CR-14-581882-A, Davis pleaded guilty to two counts of drug trafficking with

schoolyard specifications, one count of drug trafficking with a juvenile specification, two counts

of drug possession, and one count of possessing criminal tools. None of the convictions merged

for sentencing, and the court sentenced Davis to 12 months on each count, to be served

concurrently. However, the court ordered the concurrent sentences in CR-13-571424-A and CR

13-576744-B to run consecutive to the concurrent sentences in CR-14-581882-A. Davis now

appeals and raises three assignments of error.
                                  Maximum Penalty Involved

       {¶5} In the first assignment of error, Davis argues he did not enter his guilty pleas

knowingly, intelligently, and voluntarily because the trial court misinformed him of the

maximum possible prison term he could receive at sentencing. He contends the trial court

erroneously informed him that the maximum penalty he could receive for his fourth-degree

felonies was up to 12 months, whereas the maximum penalty is 18 months as prescribed by the

statute. Therefore, Davis argues, his guilty pleas should be vacated.

       {¶6} In order for a guilty plea to be constitutionally valid, the criminal defendant must

enter a guilty plea to a felony charge knowingly, intelligently, and voluntarily. State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7.                Crim.R. 11(C) outlines the

constitutional and procedural safeguards the trial court must follow when accepting a guilty plea.

 Pursuant to Crim.R. 11(C), the trial court must personally address the defendant and inform him

of the constitutional rights he is waiving by virtue of his plea. The court must also advise the

defendant of several non-constitutionally-based rights, including knowledge of the “maximum

penalty” involved. Crim.R. 11(C)(2). “When a trial judge fails to explain the constitutional

rights set forth in Crim.R. 11(C)(2)(c), the guilty plea is invalid “under a presumption that it was

entered involuntarily and unknowingly.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

893 N.E.2d 462, ¶ 31. Therefore, the trial court must strictly comply with the mandates of

Crim.R. 11(C)(2) regarding the waiver of constitutional rights. Veney at ¶ 27.

       {¶7} If the trial judge fails to perfectly explain the defendant’s nonconstitutional rights,

“substantial compliance” is sufficient. Clark at ¶ 31. Under this standard, a slight deviation

from the text of the rule is permissible so long as the totality of the circumstances indicates “the

defendant subjectively understands the implications of his plea and the rights he is waiving.” Id.
        {¶8} Further, where the trial judge partially complied with the rule with respect to

nonconstitutional rights, the plea may only be vacated if the defendant demonstrates a prejudicial

effect. Veney at ¶ 17. The test for prejudice is “‘whether the plea would have otherwise been

made.’” Clark at ¶ 32, quoting State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990).

        {¶9} Davis argues his guilty pleas must be vacated pursuant to State v. Calvillo, 76 Ohio

App.3d 714, 603 N.E.2d 325 (8th Dist.1991). In that case, this court vacated Calvillo’s guilty

plea because the trial court erroneously informed him that his potential penalty for felonious

assault was ten years longer than the statutorily prescribed prison term. The trial court advised

Calvillo that his maximum penalty was 5-25 years when the statutory maximum penalty was

3-15 years. In vacating the plea, this court reasoned:

        Even though defendant ended up with a sentence less harsh than that which he
        thought he would receive, it is conceivable that defendant may not have entered a
        plea if he believed the sentence to be less harsh.

Calvillo at 720-721. In a footnote, this court further explained:

        Perhaps if the defendant knew the correct penalties[,] he would have opted for
        trial, determining that he was willing to risk that period of incarceration.

Id. at fn. 5.

        {¶10} Calvillo is distinguishable from the case before us. In Calvillo, the court led the

defendant to believe the maximum penalty was ten years longer than it really was. This is a

significant difference and certainly could have changed the defendant’s decision to enter a guilty

plea. In this case, the court led Davis to believe the maximum penalty was six months shorter

than the statutory maximum prison term. More importantly, Davis agreed to enter his guilty

pleas with the understanding that he could be sentenced to up to 12 months in prison for each of

his fourth-degree felonies and none of his sentences exceeded 12 months. Thus, Davis fails to
show how he was prejudiced by the court’s erroneous advisement. It is not as if the court

informed him he could receive up to 12 months and then sentenced him to 18 months. If that

were the case, the prejudice would be manifest.

         {¶11} Davis fails to explain how knowledge that the statutorily prescribed maximum

prison term of 18 months would have changed his decision to enter a guilty plea. He states in

his brief that he was expecting a community control sanction with some drug treatment even

though the court repeatedly stated he could get up to 12 months in prison for his felonies. The

fact is the sentence imposed did not exceed Davis’s understanding of the maximum penalties

involved. We therefore find no prejudice as a result of the court’s misstatement regarding the

maximum penalties Davis could receive at sentencing.

         {¶12} The first assignment of error is overruled.

                                      Consecutive Sentences

         {¶13} In the second assignment of error, Davis argues the trial court failed to make the

statutory findings required for the imposition of consecutive sentences. The state concedes this

error.

         {¶14} In order to impose consecutive prison terms, a trial court is required to make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate these

findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, syllabus.      Specifically, R.C. 2929.14(C)(4) requires the court to find that (1)

consecutive sentences are necessary to protect the public from future crime or to punish the

offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public, and (3) at least one of the three

findings set forth in R.C. 2929.14(C)(4)(a)-(c) applies.
       {¶15} “[A] word-for-word recitation of the language of the statute is not required, and as

long as the reviewing court can discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, consecutive sentences should

be upheld.” Bonnell at ¶ 29. The failure to make the findings, however, is “contrary to law.”

Bonnell at ¶ 37.

       {¶16} Here, the only reason the court gave for imposing consecutive sentences was as

follows:

       The Court finds that because of the nature of the fact that we have these things
       one on top of the other and the multiple counts in the case that it’s necessary to
       consider and have consecutive sentencing. Same kind of thing repeated, done
       while out on bond for the other cases.

The court refers to Davis’s recidivism and the fact that he was out on bond when he committed

the offenses involved in this case. It is debatable whether these statements would satisfy a

finding that consecutive sentences are necessary to protect the public, but we need not decide this

issue because the trial court failed to address whether or not consecutive sentences are

disproportionate to the seriousness of Davis’s conduct or to the danger he poses to the public.

       {¶17} Therefore, the second assignment of error is sustained. Pursuant to Bonnell, if,

after making the required statutory findings on the record, the court imposes consecutive

sentences, the trial court shall incorporate its findings into its sentencing entry. It does not,

however, have an obligation to state reasons to support its findings in the entry. See Bonnell at ¶

37; R.C. 2929.14(C)(4).

                                         Allied Offenses

       {¶18} In the third assignment of error, Davis argues the trial court erred in failing to

merge allied offenses of similar import. Davis argues Counts 1, 2, and 3 of CR-13-571424-A
should have been merged.     He argues Counts 1, 2, and 3 of CR-13-576744-B should have been

merged. Finally, he argues that Counts 1, 2, and 3 in CR-14-581882-A should have been

merged, as well as Counts 4 and 5 of the same case.

       {¶19} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution,

which prohibit multiple punishments for the same offense.” State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. Under R.C. 2941.25(A), when the same conduct

by the defendant “can be construed to constitute two or more allied offenses of similar import,

the indictment or information may contain counts for all such offenses, but the defendant may be

convicted of only one.” For purposes of merger, a “conviction” includes both the determination

of guilt and the sentence or penalty. State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950

N.E.2d 512, ¶ 17.

       {¶20} The failure to merge allied offenses is plain error. Underwood at ¶ 31. Where a

trial court fails to merge allied offenses, the appellate court must reverse the judgment of

conviction and remand for a new sentencing hearing at which the state must elect which allied

offense it will pursue against the defendant.         State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, ¶ 25.

       {¶21} The State concedes that the trial court failed to merge allied offenses and that the

case should be remanded for resentencing. The State argues it retains the right to elect which

allied offenses to pursue on remand.

       {¶22} Therefore, the third assignment of error is sustained.
       {¶23} Judgment affirmed in part and reversed in part. We vacate Davis’s sentences and

remand these cases to the trial court to allow merger of allied offenses and for the trial court to

consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4).

       It is ordered that appellee and appellant share 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. 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.



EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE OPINION

MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶24} I concur with the majority’s resolution of the assigned errors. However, in keeping

with my concurring opinion in State v. Brooks, 8th Dist. Cuyahoga No. 100455,

2014-Ohio-3906, I would vacate Davis’s sentences and order that he serve them concurrently. I

therefore dissent from the majority’s mandate on remand.

       {¶25} In Bonnell, supra, while referencing the statute that mandates the presumption of

concurrent sentences, the Supreme Court noted at ¶ 23 of the opinion that:
       [I]f the trial court does not make the factual findings required by R.C.
       2929.14(C)(4), then ‘a prison term, jail term, or sentence of imprisonment
       shall be served concurrently with any other prison term, jail term or sentence
       of imprisonment imposed * * *.’

(Emphasis added.) Id., quoting R.C. 2929.41(A).

       {¶26} This statement, coupled with the authority of appellate courts to “reduce, or

otherwise modify a sentence” pursuant to R.C. 2953.08(G) means that reviewing courts need not

remand a case for resentencing when the trial court fails to make the required findings for

consecutive sentences. The court can order that the sentences be served concurrently.

       {¶27} In this case, there is no question that the trial court failed to make all of the

statutorily required findings to impose a consecutive sentence. The state concedes as much.

Davis’s sentence of imprisonment, therefore, should be served concurrently with his other

sentences.
