[Cite as State v. Homolak, 2019-Ohio-869.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 107040




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        ANDREW HOMOLAK

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-610905-A

        BEFORE: Yarbrough, J.,* Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: March 14, 2019
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

Paul A. Kuzmins
Assistant Public Defender
310 West Lakeside Avenue, Suite 200
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Katherine Mullin
Jennifer A. Driscoll
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
STEPHEN A. YARBROUGH, J.:*

         {¶1} A 39-count indictment outlined a series of crimes that defendant-appellant Andrew

Homolak perpetrated against his two daughters over the course of several years during their

childhood. He was accused of committing 12 counts of rape, 18 counts of kidnapping, and a

multitude of other crimes. Homolak pleaded guilty to a subset of the crimes charged, including

six counts of rape in violation of R.C. 2907.02(A)(2), from which he appeals. On appeal,

Homolak argues that his plea was not knowing, voluntary, and intelligent. We affirm.

         {¶2} In his sole assignment of error, Homolak complains that the trial court violated

Crim.R. 11(C)(2)(a) because it “failed to inform [him] that his plea required a mandatory prison

term.”    Relatedly, he complains that the court failed to inform him that he was therefore

ineligible for community control sanctions.

         {¶3} Crim.R. 11(C)(2)(a) provides that a trial court shall not accept a guilty plea in a

felony case without first

         [d]etermining that the defendant is making the plea voluntarily, with the
         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.

See also State v. Arnett, 88 Ohio St.3d 208, 214, 2000-Ohio-302, 724 N.E.2d 793 (“Rape carries

a mandatory prison term under R.C. 2929.13(F)(2).”).
{¶4} Crim.R. 11(C)(2)(a) requires a trial court to determine that the defendant has an awareness

about the potential penalty before accepting a guilty plea. It does not, however, require the court

to make any specific articulation as to the potential penalty. Compare Crim.R. 11(C)(2)(b)-(c)

(both requiring that the court determine that the defendant understands, but additionally requiring

the court to specifically inform the defendant); see also State v. Davis, 8th Dist. Cuyahoga No.

76085, 2000 Ohio App. LEXIS 4044, 12 (Sept. 7, 2000) (“Although the judge must specifically

determine whether a defendant understands that he is not eligible for probation, the rule does not

require him to personally inform a defendant of this fact in every circumstance.            Crim.R.

11(C)(2) distinguishes between things the judge must determine from those of which he must

inform a defendant regardless of whether an independent understanding is shown.”).

        {¶5} The Supreme Court has encouraged trial courts to literally comply with Crim.R. 11,

so as to ensure that guilty pleas are entered knowingly and voluntarily. State v. Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. While this remains the best practice, a

court’s failure to literally comply with all aspects of the rule does not automatically invalidate a

guilty plea. Id. at ¶ 30. Instead, a reviewing court must look to the nature of the claimed

failure, determine whether there was actually a failure, and if so, determine its extent. Id.

{¶6} Also relevant to this case, where a defendant claims the trial court failed to explain a

nonconstitutional right, the relevant inquiry is whether the court substantially complied with the

rule.   See id. at ¶ 31.      “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.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v.

Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). Thus, the relevant inquiry is whether

absent the deficient explanation the defendant would have still pleaded guilty. Id.
       {¶7} This court has held that a court need not specifically inform a defendant that a

particular conviction mandates prison or precludes a community control sanction, where the

record clearly indicates that the defendant was aware of this. See, e.g., State v. Smith, 8th Dist.

Cuyahoga No. 83395, 2004-Ohio-1796, ¶ 11 (“The mere fact that the court did not specifically

say ‘[y]ou are ineligible for probation’ or ‘[t]his offense requires a mandatory term of prison’ will

not be fatal unless the record clearly indicates that the defendant was unaware that he would be

sent to prison upon a plea of guilty and he was prejudiced by that fact.”); see, e.g., State v.

McLaughlin, 8th Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶ 19 (“[T]he trial court need not

specifically inform the defendant he is ‘ineligible for probation’ if the totality of the

circumstances warrant the trial court in making a determination the defendant understands the

offense is ‘nonprobational.’”).

       {¶8} At Homolak’s change of plea hearing, the state put the plea agreement on the record:

Homolak would plead guilty to six counts of rape in violation of R.C. 2907.02(A)(2), each a

felony of the first degree, and each punishable by a possible term of incarceration of 3 to 11

years. The court asked Homolak’s counsel if that was correct. Counsel responded:

       Judge, that’s correct. We’ve reviewed this with [Homolak] a couple of times
       since it’s been offered to us. * * * He will be entering a guilty plea to those
       knowingly, intelligently, and voluntarily, Judge, of his own free will. And I’ve
       also explained the constitutional rights that one has that one gives up when you
       enter a plea as opposed to going to trial.

       I know you’ll go over those as well, Judge, but he’s aware of that. He’s an
       intelligent guy. He knows what’s going on. I’ve made no promises whatsoever.


       I’ve indicated to him that the Court has to make the decision on sentencing. I
       can’t advise him as to what the sentence would be, but he knows what the range
       is.
       {¶9} The court then confirmed that none of the six rape counts would merge for the

purposes of sentencing before conducting the plea colloquy.           The court inquired about

Homolak’s counsel and reiterated the potential penalties he faced:

       The Court:     Have you had enough time to consult with your attorney?

       Homolak:       Yes, ma’am.
       The Court:     Are you satisfied with his representation?

       Homolak:       Yes, ma’am.

       ***

       The Court:     Do you understand the penalties that could be imposed for these
                      offenses * * * which are all counts of rape? Those are felonies of
                      the first degree. They could carry a potential penalty of three to 11
                      years in prison, a fine of up to $20,000.

       Homolak:       Yes, ma’am.

       ***

       The Court:     Let the record reflect the defendant is making a knowing,
                      intelligent, and voluntary decision to withdraw his not guilty pleas
                      and enter pleas of guilt.

       {¶10} Although the trial court never specifically stated that prison was mandatory or that

Homolak was ineligible for community control sanctions, review of the record indicates that he

was nevertheless subjectively aware. Based on the totality of the circumstances, we find the

court substantially complied with Crim.R. 11(C)(2)(a).
          {¶11} Homolak pleaded guilty to six different counts of rape pertaining to his two

daughters over the course of several years of their childhood. The court discussed that the six

counts would not merge for purposes of sentencing and that each count was punishable with a

term of imprisonment ranging from 3 to 11 years in prison. His counsel indicated that they

“reviewed” the plea offer multiple times, that Homolak was an “intelligent guy,” who “knows

what’s going on,” and as to his possible sentence, he “knows what the range is.”

          {¶12} Moreover, the record is devoid of any indication that Homolak would be sentenced

to a community control sanction. It was never discussed. There is no indication that Homolak

pleaded guilty in order to escape a prison sentence. To the contrary, due to the nature and

severity of his crimes, Homolak had no basis to conclude that he would not be sentenced to

prison.

          {¶13} Homolak argues that this case is similar to State v. Tutt, 2015-Ohio-5145, 54

N.E.3d 619 (8th Dist.), a decision from this court finding that the trial court failed to substantially

comply with Crim.R. 11(C)(2)(a) where the defendant did not subjectively understand he would

be subject to a mandatory prison sentence for drug offenses. That panel found “nothing * * * in

the record that indicates [the defendant] subjectively understood * * * he would have to serve a

mandatory prison sentence * * *.” Id. at ¶ 26. Additionally, the panel in Tutt, found it relevant

that “[t]he offenses at issue — while very serious — were drug offenses, not the type of heinous

crimes for which a defendant would have no reason to expect the imposition of community

control sanctions.” Id. at ¶ 27. For the reasons discussed, we find this case distinguishable.

          {¶14} Because the record reflects that Homolak subjectively understood that he faced a

mandatory prison sentence, we find the trial court substantially complied with Crim.R.

11(C)(2)(a), and overrule the assignment of error.
       {¶15} While we do not require it, the trial court might consider as a better practice to

avoid this and other similar appeals, the use of written plea agreements signed by the state and

the defendant. Many other trial courts find this practice useful.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover of appellant 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.

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

Rules of Appellate Procedure.



______________________________________________
*STEPHEN A. YARBROUGH, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR

*(Sitting by Assignment: Judge Stephen A. Yarbrough, retired, of the Sixth District Court of
Appeals).
