[Cite as State v. Sims, 2011-Ohio-4819.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95979



                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           LENNY SIMS
                                                     DEFENDANT-APPELLANT




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



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-529983

        BEFORE: Celebrezze, J., Kilbane, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                       September 22, 2011
ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Road
Suite 335
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Patrick J. Lavelle
      Thorin O. Freeman
      Kristen L. Sobieski
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Defendant-appellant, Lenny Sims, appeals his convictions for

drug trafficking and having a weapon while under disability. After careful

review of the record and relevant case law, we affirm appellant’s convictions,

but reverse and remand in part for further proceedings consistent with this

opinion.

      {¶ 2} On November 4, 2009, appellant was named in an eight-count

indictment. The indictment charged him with one count of drug trafficking,

in violation of R.C. 2925.03(A)(2), including a one-year firearm specification, a
major drug offender specification, a juvenile specification, and numerous

forfeiture specifications; one count of drug possession, in violation of R.C.

2925.11(A); one count of having a weapon while under disability, in violation

of R.C. 2923.13(A)(3); one count of possessing criminal tools, in violation of

R.C. 2923.24(A); and four counts of endangering children, in violation of R.C.

2919.22(A).

      {¶ 3} On March 4, 2010, pursuant to a plea agreement entered into

with the state, appellant pled guilty to the charge in Count 1, drug trafficking

with the major drug offender, juvenile, and forfeiture specifications, and the

charge in Count 3, having a weapon while under disability.          Appellant’s

remaining counts and the one-year gun specification were dismissed.

      {¶ 4} After informing appellant of his constitutional rights, the trial

court accepted his guilty plea and sentenced him to a ten-year term of

imprisonment on the drug trafficking charge and a one-year term of

imprisonment on the charge of having a weapon while under disability. The

trial court ordered that the sentences be run concurrently to each other, for

an aggregate term of ten years in prison.

      {¶ 5} Following imposition of sentence, appellant filed a motion to

vacate payment of court costs and/or motion to impose community service in

lieu of fines and costs, which the trial court denied.

      {¶ 6} Appellant now appeals, raising two assignments of error.
      {¶ 7} I.    “The trial court erred in accepting a plea that was not

knowing, intelligent, and voluntary.”

      {¶ 8} II.    “The trial court erred in failing to notify appellant of his

mandatory sentence, his court costs, and the consequences of failing to pay

court costs.”

                                 Law and Analysis

                                           I

      {¶ 9} In his first assignment of error, appellant raises several

arguments relating to his contention that the trial court erred in accepting a

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

      {¶ 10} Initially, appellant contends that the trial court failed to properly

advise him of the maximum penalty involved in his plea pursuant to Crim.R.

11(C)(2)(a). Under Crim.R. 11(C)(2), before accepting a guilty plea, a trial

court must address the defendant personally and determine that he is

making the plea voluntarily “with understanding of the nature of the charges

and the maximum penalty involved.” A trial court must strictly comply with

the Crim.R. 11(C)(2) requirements regarding the waiver of constitutional

rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.

      {¶ 11} As to the nonconstitutional aspects, such as a defendant’s right to

be informed at the plea hearing of the maximum possible penalty that could

be imposed upon conviction, strict compliance is strongly preferred, but not
required.     State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474.

Thus, a defendant’s plea will not be vacated so long as a trial court has

substantially complied with the rule. Id.

      {¶ 12} “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his

plea and the rights he is waiving.” Id. “[I]f it appears from the record that

the defendant appreciated the effect of his plea and his waiver of rights in

spite of the trial court’s error, there is still substantial compliance.” State v.

Caplinger (1995), 105 Ohio App.3d 567, 572, 664 N.E.2d 959.

      {¶ 13} During the March 4, 2010 plea hearing, the following colloquy

took place:

      {¶ 14} “[PROSECUTOR]:       Concerning the defendant Lenny Sims, the

State will be amending count one of the indictment by again deleting the

firearm specification, so that count one of the indictment reads drug

trafficking in violation of Section 2925.03 of the Ohio Revised Code, to wit

crack cocaine in an amount that exceeds 100 grams.

      {¶ 15} “With that is the major drug offender specification in violation of

2941.1410, and a juvenile specification in violation of 2925.01.       * * *   As

indicted — or I should say as per statute, being over a hundred grams of

crack cocaine, this carries with it a mandatory ten years imprisonment in a

state institution.       “* * *
      {¶ 16} “The major drug offender specification allows for the Court to

potentially sentence him to an additional one to ten years.

      {¶ 17} “THE COURT:     Gotcha. Thank you.

      {¶ 18} “[PROSECUTOR]:      And, again, there is a juvenile specification.

And along with that carries with it the mandatory — a fine of up to $20,000,

of which $10,000 is mandatory.

      {¶ 19} “Your Honor, also there would be forfeiture of a cell phone, of a

gun, that being a Cobra .38 semiautomatic handgun, * * * the forfeiture of

another handgun, that being a Taurus semiautomatic handgun, * * * the

forfeiture of a Mossberg 12 gauge shotgun, * * * the forfeiture of two scales,

the forfeiture of $545 in U.S. currency, the forfeiture of packing materials,

and the forfeiture of ammunition.

      {¶ 20} “Additionally, your Honor, the defendant will be entering a plea

of guilty to count three of the indictment, which was a violation of 2923.13 of

the Ohio Revised Code. This is an F-3 as indicted, which carries with it a

possible penalty of one to five years in a state institution, possible $10,000

fine. And again, forfeiture of the Cobra .38, the Taurus and the 12 gauge

shotgun.

      {¶ 21} “Should these pleas be forthcoming, your Honor, the State would

then ask the Court to nolle count two of the indictment, which is drug
possession, count four of the indictment, which is possessing criminal tools,

and counts ten, eleven, twelve and thirteen, which is endangering children.

      {¶ 22} “THE COURT:     [Appellant,] I am going to be asking you a series

of questions to make sure you understand the Constitutional rights that you

would be giving up if you are entering pleas. * * * have you heard everything

that’s been stated in Court this morning by your lawyer and the assistant

county prosecutor?

      {¶ 23} “[APPELLANT]:     Yes.

      {¶ 24} “THE COURT:      Do you understand everything that you have

heard?

      {¶ 25} “[APPELLANT]:     Yes.”

      {¶ 26} Subsequently,   the   trial   court   advised   appellant   of   his

constitutional rights and stated that the court would impose a mandatory

five-year period of postrelease control.      In regard to the trial court’s

discussion of appellant’s potential sentence, the following colloquy occurred:

      {¶ 27} “THE COURT:     And for you, [appellant], do you understand that

the potential prison term for a felony of the first degree ranges from three to

ten years, and because this is a drug case there is a maximum fine of $20,000

and a mandatory fine of $10,000. Do you understand that?

      {¶ 28} “[APPELLANT]:     Yes, sir.
       {¶ 29} “[PROSECUTOR]:       Excuse me, your Honor. Based on statute,

because of the weight of the drug, it is not three to ten, it is just a flat ten. It

is a mandatory ten years.

       {¶ 30} “THE COURT:      Okay. With that, do you understand that based

on the statute it is a mandatory ten years in prison? Do you understand

that, [appellant]?

       {¶ 31} “[APPELLANT]:     Now I do.”

       {¶ 32} Based on the March 4, 2010 plea colloquy, appellant argues that

the trial court failed to comply with Crim.R. 11(C)(2)(a) because of the trial

court’s initial misstatement regarding the maximum penalty for the drug

trafficking charge and its complete failure to discuss on the record the

penalties associated with appellant’s charge of having a weapon while under

disability.

       {¶ 33} In State v. McKissic, Cuyahoga App. Nos. 92332 and 92333,

2010-Ohio-62, the defendant argued that the prosecutor, rather that the trial

judge, explained the maximum penalties at the plea colloquy.             The court

found that “[a]lthough it would have been better for the trial judge himself to

have      explained   the   maximum    penalties   to   [defendant],   substantial

compliance with Crim.R. 11(C) suffices with respect to nonconstitutional

rights.       Thus, the court may properly determine that the defendant

understands those matters from the totality of the circumstances, without
informing him about them directly.” Id., citing State v. Gibson (1986), 34

Ohio App.3d 146, 517 N.E.2d 990; State v. Rainey (1982), 3 Ohio App.3d 441,

446 N.E.2d 188.

         {¶ 34} In this matter, the record adequately sets forth that the

prosecutor informed appellant of the potential maximum sentences for the

drug trafficking charge and charge for having a weapon while under

disability. Additionally, appellant stated on the record that he understood

the potential maximum penalties based on the prosecutor’s statements to the

court.     Although we acknowledge the inadequacies in the trial court’s

discussion     of   appellant’s   maximum   penalties,   the   totality   of   the

circumstances indicates that appellant understood the potential maximum

penalties associated with his guilty plea. Therefore, we find that the trial

court substantially complied with Crim.R. 11(C).

         {¶ 35} Appellant   next complains that the trial court committed

reversible error by failing to inform him that, upon acceptance of his guilty

plea, the trial court could proceed immediately to judgment and sentence.

Because it is a nonconstitutional right, the trial court must substantially

comply with this requirement of Crim.R. 11(C). Although the trial court did

not explicitly inform appellant that the court could proceed immediately to

judgment and sentence, the record reveals that, upon accepting appellant’s

guilty plea, the trial court attempted to schedule a sentencing hearing for a
later date.   However, before a sentencing date could be scheduled, a

discussion relating to sentencing took place off the record between the trial

court and appellant’s attorney. Subsequently, the parties returned on the

record and proceeded immediately to sentencing.        In light of the parties’

off-the-record discussion and the ultimate decision to proceed immediately

with sentencing, it is clear that the trial court discussed the possibility of

proceeding immediately to sentencing with appellant’s attorney. Thus, we

find that the trial court substantially complied with Crim.R. 11(C).

      {¶ 36} Moreover, a defendant who challenges his plea on the basis that

it was not knowingly, intelligently, and voluntarily made must demonstrate

prejudice as a result of the alleged error. State v. Johnson (1988), 40 Ohio

St.3d 130, 133, 532 N.E.2d 1295. The test is whether the plea would have

otherwise been made.     Id.   Appellant has failed to demonstrate, or even

argue, that he was prejudiced in any way by the trial court’s alleged failure to

explain that it could proceed immediately to judgment and sentence.

Accordingly, appellant’s argument lacks merit. See State v. Steele, Cuyahoga

App. No. 85901, 2005-Ohio-5541, ¶15.

      {¶ 37} Finally, appellant argues that he was improperly induced to enter

a guilty plea based on the prosecutor’s false statement of law that the trial

court could impose an additional one to ten years in prison for the major drug

offender specification. Appellant’s contention is based on his belief that the
imposition of an additional prison sentence of ten years for the major drug

offender specification was rendered unconstitutional in State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

      {¶ 38} In State v. Bridges, Cuyahoga App. No. 94469, 2010-Ohio-6359,

this court rejected appellant’s interpretation of Foster stating, “[a]s we have

previously recognized, rather than eliminating penalty enhancements for

repeat violent specifications,” Foster only severs the language requiring

judicial fact-finding in R.C. 2929.14(D)(3)(b).      Id., ¶15, quoting State v.

Marcano, Cuyahoga App. No. 92449, 2009-Ohio-6458, ¶12. Therefore, the

effect of the Foster judgment was to sever only the language that required

judicial fact-finding as a prerequisite to imposing the additional add-on

sentence when a defendant is found to be a major drug offender. See State v.

Chandler, 109 Ohio St.3d 223, 2006-Ohio- 2285, 846 N.E.2d 1234, ¶17 (“As

the statute now stands, a major drug offender still faces the mandatory

maximum ten-year sentence that the judge must impose and may not reduce.

 Only the add-on that had required judicial fact-finding has been severed.”).

Thus, appellant’s argument is without merit. Appellant was subject to an

additional sentence as a major drug offender at the trial court’s discretion,

and there was no false inducement in this case.

      {¶ 39} For   the   foregoing   reasons,   we   overrule   appellant’s   first

assignment of error.
                                          II

      {¶ 40} In appellant’s second assignment of error, he argues that the trial

court failed, as required by statute, to notify him of his court costs and the

consequences of failing to pay the court costs. The state concedes appellant’s

argument pursuant to this court’s decision in State v. Cardamone, Cuyahoga

App. No. 94405, 2011-Ohio-818. Accordingly, we vacate the portion of the

trial court’s entry relative to court costs and remand for notification to

appellant as to court costs and the consequences of failing to pay court costs.

See, also, State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d

838, ¶22; State v. Burns, Gallia App. Nos. 08CA1, 08CA2, and 08CA3,

2009-Ohio-878, ¶12; and State v. Dansby, Tuscarawas App. No. 08 AP 06

0047, 2009-Ohio-2975, ¶21–23.

      {¶ 41} Additionally, appellant contends that the trial court failed to

impose a mandatory sentence for drug trafficking.            This argument is

incorrect. During sentencing, the trial court stated, “[a]nd I will state for the

purposes of the record that the ten-year sentence imposed by the Court was

mandatory pursuant to statute.”          Therefore, the record reveals that

appellant was notified of his mandatory term of imprisonment in open court.

      {¶ 42} Appellant’s second assignment of error is overruled.

      {¶ 43} Appellant’s convictions are affirmed; appellant’s sentence is

affirmed in part, reversed in part, and remanded. On remand, a hearing
shall be held only for the purpose of proper notification of court costs and the

penalty for failure to pay court costs.

      {¶ 44} This cause is affirmed in part, reversed in part, and remanded to

the lower court for further proceedings consistent with this opinion.

      It is ordered that appellant and appellee share the 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. 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
