[Cite as State v. Adams, 2011-Ohio-2662.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA




                           JOURNAL ENTRY AND OPINION
                                   No. 95439



                                   STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   LOWELL ADAMS
                                                    DEFENDANT-APPELLANT




                            JUDGMENT:
                     AFFIRMED IN PART, REVERSED
                       AND REMANDED IN PART


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-529961

        BEFORE:           E. Gallagher, J., Sweeney, P.J., and Keough, J.
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      RELEASED AND JOURNALIZED:                  June 2, 2011

 ATTORNEY FOR APPELLANT

Terrence K. Scott
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215-2998



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} Lowell Adams (“Appellant”), appeals his convictions from the

Cuyahoga County Court of Common Pleas. Appellant argues that the trial

court erred by not informing him that his failure to pay court costs may

result in court ordered community service, that his trial counsel provided

ineffective assistance for failing to object to this omission, and that his guilty
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plea was not knowing, voluntary and intelligent because the court

inadequately informed him of his right to compulsory process.          For the

following reasons we affirm, in part, and reverse, in part.

      {¶ 2} Appellant was indicted on October 20, 2009.        Appellant’s five

count indictment included charges of kidnapping (Count 1), rape (Count 2),

felonious assault (Count 3), domestic violence (Count 4), and endangering

children (Count 5).   Appellant initially pled not guilty to the indictment.

On May 26, 2010, pursuant to a plea agreement between the State and

appellant, the State moved to amend count 2 (rape) to gross sexual

imposition pursuant to R.C. 2907.05(A)(4) and count 3 (felonious assault) to

child endangering pursuant to R.C. 2919.22(B)(2).             Under the plea

agreement, appellant would plead guilty to the two amended counts and all

other remaining counts would be dismissed. Appellant entered a guilty plea

pursuant to this agreement and was sentenced on June 28, 2010 to

consecutive terms of five years on Count 2 and two years on Count 3.

Appellant was advised of a mandatory five year period of postrelease control.

 Finally, the trial court ordered appellant to pay court costs.      Appellant

subsequently appealed raising the three assignments of error contained in

the appendix of this opinion.

      {¶ 3} In his first assignment of error, appellant argues that the trial
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court committed plain error when it failed to notify him that his failure to

pay court costs could result in his being ordered to perform community

service. R.C. 2947.23(A)(1) requires that at the time the trial court imposes

sentence, the court “shall” notify the defendant that if he fails to pay, or

make timely payments against, the judgment of court costs rendered against

him, the court “may order the defendant to perform community service * * *.

” The trial court did not provide this required notification to appellant. We

recently held in State v. Cardamone, Cuyahoga App. No. 94405,

2011-Ohio-818, that the appropriate remedy where a trial court fails to

provide the notice required pursuant to R.C. 2947.23(A)(1), is for the portion

of the trial court’s entry relative to court costs to be vacated and the case

remanded to the trial court for resentencing as to the issue of court costs.

Thus, appellant’s first assignment of error is sustained.

      {¶ 4} In his second assignment of error, appellant argues that his trial

counsel provided ineffective assistance by failing to object when the trial

court imposed costs without notifiying him that the failure to pay such costs

could result in the court ordering him to perform community service. In

light of our ruling on appellant’s first assignment of error, we find that

appellant’s second assignment of error is moot and is hereby disregarded

pursuant to App.R. 12(A)(1)(c).    State v. Burns, Gallia App. Nos. 08CA1,
                                         5

08CA2, 08CA3, 2009-Ohio-878, at ¶13.

         {¶ 5} Appellant argues in his third assignment of error that his guilty

plea must be vacated due to the fact that it was not knowing, voluntary, and

intelligent because the trial court failed to correctly explain his right to

compulsory process and failed to apprise him of the maximum sentence he

faced.

         {¶ 6} The standard for reviewing whether the trial court accepted a

plea in compliance with Crim.R. 11(C) is a de novo standard of review.

State v. Cardwell, 8th Dist. No. 92796, 2009-Ohio-6827, ¶26, citing State v.

Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163. “It requires an appellate

court to review the totality of the circumstances and determine whether the

plea hearing was in compliance with Crim.R. 11(C).” Id.

         {¶ 7} Crim.R. 11(C) sets forth a trial court’s duties in accepting guilty

pleas and states as follows:

         {¶ 8} “(2) In felony cases the court may refuse to accept a plea of guilty

or a plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally and doing all of the

following:

         {¶ 9} “(a) Determining that the defendant is making the plea

voluntarily, with understanding of the nature of the charges and of the
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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.

      {¶ 10} “(b) Informing the defendant of and determining that the

defendant understands the effect of the plea of guilty or no contest, and that

the court, upon acceptance of the plea, may proceed with judgment and

sentence.

      {¶ 11} “(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.”

      {¶ 12} The trial court must strictly comply with its duties of notifying

the defendant of his constitutional rights and must strictly comply with

those provisions of Crim.R. 11(C) that relate to the waiver of constitutional

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

syllabus; State v. Ballard (1981), 66 Ohio St.2d 473, 423 N.E.2d 115, at

paragraph one of the syllabus. “Strict compliance” does not require an exact

recitation of the precise language of the rule but instead focuses on whether
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the trial court explained or referred to the right in a manner reasonably

intelligible to that defendant. Ballard, at paragraph two of the syllabus.

      {¶ 13} With regard to notification of the constitutional right of

compulsory process, we have previously stated that, “[a]lthough a trial court

need not specifically tell a defendant that he has the right to ‘compulsory

process,’ it must nonetheless ‘inform a defendant that it has the power to

force, compel, subpoena, or otherwise cause a witness to appear and testify

on the defendant’s behalf.’” State v. Cummings, Cuyahoga App. No. 83759,

2004-Ohio-4470, quoting State v. Wilson, Cuyahoga App. No. 82770,

2004-Ohio-499, at ¶16, appeal not allowed, 102 Ohio St.3d 1484,

2004-Ohio-3069, 810 N.E.2d 968.

      {¶ 14} Prior to accepting appellant’s guilty plea in this case, the trial

court informed appellant, “Sir, if you had a trial, counsel would be with you.

He’d have a right to ask questions and challenge the case against you. You

have a right to call witnesses. You could subpoena them for trial. * * * ”

(Emphasis added.) (Tr. 27.)

      {¶ 15} We have previously held that the use of the word “subpoena”

adequately informs the defendant of his right to compulsory process. State

v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, appeal not allowed by

110 Ohio St.3d 1443, 2006-Ohio-3862, 852 N.E.2d 190; State v. Senich,
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Cuyahoga App. No. 82581, 2003-Ohio-5082; State v. Gurley (June 5, 1997),

Cuyahoga App. No. 70586. In State v. Moulton, Cuyahoga App. No. 93726,

2010-Ohio-4484, we held that the trial court’s statement that the defendant

had a right to “subpoena and call witnesses” clearly informed her at the time

of her plea of her right to compulsory process. Id. at ¶12.

      {¶ 16} In the present case, we find the trial court’s statements that,

“[y]ou have a right to call witnesses. You could subpoena them for trial”

adequately informed appellant at the time of his plea of his right to

compulsory process. We find that the trial court strictly complied with the

requirements of Crim.R. 11(C) in accepting appellant’s waiver of his right to

compulsory process.

      {¶ 17} Finally, appellant argues that the trial court failed to inform him

of maximum potential penalty for his offenses because it failed to inform him

that in the event that he fails to pay court costs, he may be ordered to

perform community service.

      {¶ 18} The trial court’s duty to inform the defendant of the maximum

potential penalty for each offense is a nonconstitutional requirement of

Crim.R. 11(C)(2)(a).   State v. Scott, Cuyahoga App. Nos. 84381, 84382,

84383, 84384, 84389, 2005-Ohio-3690, citing State v. Griggs, 103 Ohio St.3d

85, 87, 2004-Ohio-4415, 814 N.E.2d 51.
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      {¶ 19} With respect to the nonconstitutional requirements of Crim.R.

11, as set forth in Crim.R. 11(C)(2)(a) and (b), reviewing courts shall consider

whether there was substantial compliance with the rule. Veney, at ¶14-17.

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., citing State v. Nero (1990), 56 Ohio St.3d 106, 108,

564 N.E.2d 474.

      {¶ 20} Furthermore, a defendant must show prejudice before a plea will

be vacated for a trial court’s error involving Crim.R. 11(C) procedure when

nonconstitutional aspects of the colloquy are at issue. Veney. The test for

prejudice is whether the plea would have otherwise been made. Id.; see,

also, State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.

      {¶ 21} Though appellant presents this argument only in passing and

provides no legal support for his position, we note that the Ohio Supreme

Court has stated that, “[A]lthough costs in criminal cases are assessed at

sentencing and are included in the sentencing entry, costs are not

punishment, but are more akin to a civil judgment for money.” State v.

Joseph, 125 Ohio St.3d 76, 79, 2010-Ohio-954, 926 N.E.2d 278, 281, quoting

State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶15.

      {¶ 22} In State v. McDaniel, Vinton App. No. 09CA677, 2010-Ohio-5215,
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¶ 20-21, the Fourth District Court of Appeals, citing Joseph and Threatt,

held that “[c]ourt costs are not punishment and therefore are not part of the

‘penalty’ that the trial court needs to describe under Crim.R. 11(C)(2)(a).”

The Twelfth District Court of Appeals reached the same conclusion in State

v. Smith, Warren App. No. CA2010-06-057, 2011-Ohio-1188.

       {¶ 23} We agree with the reasoning of the Fourth and Twelfth Districts

and hold that court costs are not punishment, and thus are not part of the

“maximum penalty involved” for purposes of Crim.R. 11(C)(2)(a). Therefore,

the trial court did not need to inform appellant that his failure to pay court

costs could potentially subject him to community service in order to inform

him of the “maximum penalty involved,” as required by Crim.R. 11(C)(2)(a).

Appellant’s third assignment of error is overruled.

       {¶ 24} The judgment of the trial court is affirmed in part and reversed

and remanded in part. On remand, a hearing shall be held for only the

proper notification of the penalty for a failure to pay court costs.

       It is ordered that appellant recover of 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.
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       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KATHLEEN A. KEOUGH, J., CONCUR


                                        Appendix

Assignment of Error No. 1:
      “The trial court committed plain error by imposing court costs without
      notifying Mr. Adams that his failure to pay such costs may result in
      the court’s ordering him to perform community service.”

Assignment of Error No. 2:
      “Trial counsel provided ineffective assistance, in violation of the Sixth
      and Fourteenth Amendments to the United States Constitution and
      Section 10, Article I of the Ohio Constitution, for failing to object to the
      trial court’s imposition of court costs, as the trial court did not notify
      Mr. Adams that his failure to pay court costs may result in the court’s
      ordering him to perform community service.”

Assignment of Error No. 3:
      “Lowell Adams was deprived of his right to due process under the
      Fourteenth Amendment to the United States Constitution and Section
      10, Article I of the Ohio Constitution when the trial court accepted an
      unknowing, unintelligent, and involuntary guilty plea.”
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