      [Cite as Cleveland v. Clifford, 2020-Ohio-3803.]

                            COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA

CITY OF CLEVELAND,                                       :

      Plaintiff-Appellee,                                :
                                                             No. 108822
      v.                                                 :

JASON T. CLIFFORD,                                       :

      Defendant-Appellant.                               :


                             JOURNAL ENTRY AND OPINION

              JUDGMENT: AFFIRMED AND REMANDED
              RELEASED AND JOURNALIZED: July 23, 2020


                 Criminal Appeal from the Cleveland Municipal Court
                            Case No. 2019 CRB 003322


                                          Appearances:

              Barbara A. Langhenry, Cleveland Director of Law,
              Karrie D. Howard, Chief Prosecutor, and Joan Bascone,
              Assistant Prosecuting Attorney, for appellee.

              Mark Stanton, Cuyahoga County Public Defender, and
              Cullen Sweeney, Assistant Public Defender, for appellant.


MICHELLE J. SHEEHAN, J.:

                Defendant-appellant Jason T. Clifford (“Clifford”) appeals from his

conviction for aggravated trespass following a plea agreement. Because we find the

trial court complied with its obligations under Crim.R. 11, we affirm the conviction.
We remand the matter to the trial court, however, with instructions to enter a nunc

pro tunc journal entry reflecting that the domestic violence charge was dismissed.

                    I. Procedural History and Substantive Facts

              On March 7, 2019, Clifford was charged in Cleveland Municipal Court

with two misdemeanors of the first degree — domestic violence and aggravated

trespass — and one misdemeanor of the third degree — unlawful restraint, arising

from an incident that purportedly involved a family or household member.

              On April 15, 2019, Clifford withdrew his not guilty plea and pleaded

guilty to one count of aggravated trespass with a notation that the victim is a family

or household member. The state agreed to dismiss the remaining charges as part of

the agreement, and the court in fact nolled the charges.

              At the plea hearing, the trial court engaged Clifford in the following

plea colloquy:

      Court: Sir, is it your desire to plead guilty to one count of aggravated
      trespass?
      Defendant: Yes, your Honor.
      Court: You understand that by changing your plea, you’re giving up
      the right to go to trial; do you understand that?
      Defendant: Yes, your Honor.
      Court: You’re giving up your right to confront witness and have
      witnesses come in and testify [o]n your behalf; do you understand
      that?
      Defendant: Yes, your Honor.
      Court: You’re giving up the right to have the prosecutor prove your
      guilt beyond a reasonable doubt.
      Defendant: Yes, your Honor.
      Court: And, you’re giving up your right to remain silent for the limited
      purpose of pleading guilty; do you understand that?
      Defendant: Yes, your Honor.
      Court: You also understand that by pleading guilty I could make a
      finding of guilt, and I could sentence you to a fine of up to $1,000 and
      up to 180 days in jail; do you understand that, sir?
      Defendant: Yes, your Honor.
      Court: You also understand that the journal entry and the record will
      reflect that the victim in this case is a family or household member,
      which means if in fact you’re arrested for an offense of violence against
      a family or household member in the future, you could be charged
      with a felony; do you understand that?
      Defendant: Yes, your Honor.

              Thereafter, Clifford entered his guilty plea, the court accepted the plea

and found Clifford guilty of aggravated trespass, and the court dismissed the

remaining charges. The court then scheduled the matter for sentencing.

              At sentencing, the court heard from defense counsel and the

prosecutor.   After some discussion regarding Clifford’s GPS monitor, defense

counsel reported that this case is Clifford’s first “truly criminal involvement,” where

his previous offenses pertained to driving citations. Counsel explained that Clifford

has been cooperative and took responsibility for his actions in pleading. The court

then sentenced Clifford to 180 days’ incarceration, $1,000 fine, court costs, and two

years’ active probation. The court waived the fine and suspended 149 days of

incarceration and credited Clifford with 31 days served.

              Clifford now appeals his conviction, assigning three errors for our

review: (1) appellant’s guilty plea was not knowingly, intelligently, or voluntarily

entered when the trial court failed to comply with Crim.R. 11’s requirement of

explaining the effect of [the appellant’s] plea; (2) appellant’s guilty plea was not

knowingly, intelligently, or voluntarily entered when the trial court failed to properly
advise [the appellant] of the constitutional rights he was relinquishing by pleading

guilty; (3) the trial court’s docket incorrectly states that [the appellant] was found

guilty of domestic violence when in fact the charge was dismissed. We will address

the first two assignments of error together.

                                     II. Guilty Plea

              In his first two assignments of error, Clifford contends that his guilty

plea must be vacated because the trial court failed to advise him of the effect of his

guilty plea and of the constitutional rights he was waiving by pleading guilty.

               Crim.R. 11 delineates the constitutional and procedural requirements

with which a trial court must comply prior to accepting a guilty or no contest plea in

order to ensure that a defendant enters a plea knowingly, intelligently, and

voluntarily. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). And a

trial court’s obligations in accepting a plea depend upon the level of offense to which

the defendant is pleading. State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788

N.E.2d 635; Cleveland v. Jaber, 8th Dist. Cuyahoga Nos. 103194 and 103195,

2016-Ohio-1542, ¶ 22; Parma v. Buckwald, 8th Dist. Cuyahoga Nos. 92354 and

92356, 2009-Ohio-4032.

              The charge in this case is aggravated trespass, which is a first-degree

misdemeanor,     punishable     by    a   maximum      sentence    of   six   months.

R.C. 2929.24(A)(1). Because the maximum confinement is six months, aggravated

trespass is a petty offense. See Solon v. Bollin-Booth, 8th Dist. Cuyahoga No. 97099,

2012-Ohio-815, ¶ 14, citing Crim.R. 2(C) and 2(D) (defining a petty offense).
              Crim.R. 11(E) governs pleas entered in petty offense cases. “In

misdemeanor cases involving petty offenses[,] the court may refuse to accept a plea

of guilty or no contest, and shall not accept such pleas without first informing the

defendant of the effect of the plea of guilty, no contest, and not guilty.”

Crim.R. 11(E). Thus, a trial court must “advise the defendant, either orally or in

writing, of the effect of the specific plea being entered.” Cleveland v. Tittl, 8th Dist.

Cuyahoga No. 105193, 2017-Ohio-9156, ¶ 7, citing State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677, paragraph one of the syllabus and ¶ 23. Under

Crim.R. 11(B)(1), the effect of a guilty plea is that “the plea of guilty is a complete

admission of the defendant’s guilt.”

              The Ohio Supreme Court explained the different types of offenses and

the corresponding procedural requirements:

      For a petty offense, defined in Crim.R. 2(D) as “a misdemeanor other
      than [a] serious offense,” the court is instructed that it “may refuse to
      accept a plea of guilty or no contest, and shall not accept such pleas
      without first informing the defendant of the effect of the plea of guilty,
      no contest, and not guilty.” Crim.R. 11(E). If the misdemeanor charge
      is a serious offense, meaning that the prescribed penalty includes
      confinement for more than six months, Crim.R. 2(C), the court shall
      not accept a guilty or no contest plea “without first addressing the
      defendant personally and informing the defendant of the effect of the
      pleas of guilty, no contest, and not guilty and determining that the
      defendant is making the plea voluntarily.” Crim.R. 11(D).

      The procedure set forth in Crim.R. 11(C)(2) for felony cases is more
      elaborate than that for misdemeanors. Before accepting a guilty plea
      in a felony case, a “trial court must inform the defendant that he is
      waiving his privilege against compulsory self-incrimination, his right
      to jury trial, his right to confront his accusers, and his right of
      compulsory process of witnesses.” State v. Ballard, 66 Ohio St.2d
      473, 423 N.E.2d 115 (1981), paragraph one of the syllabus. In addition
       to these constitutional rights, the trial court is required to determine
       that the defendant understands the nature of the charge, the
       maximum penalty involved, and the effect of the plea.
       Crim.R. 11(C)(2)(a) and (b).

Jones at ¶ 11-12; State v. Mitchell, 8th Dist. Cuyahoga No. 103364, 2016-Ohio-4956,

¶ 6.

              Therefore, for Clifford’s guilty plea to the petty offense charge of

aggravated trespass, the trial court’s obligation under Crim.R. 11 was only to inform

Clifford of the “effect” of his plea. Jaber at ¶ 24, citing Jones at paragraph one of

the syllabus; Strongsville v. Petronzio, 8th Dist. Cuyahoga No. 102345,

2016-Ohio-101, ¶ 10, citing State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788

N.E.2d 635, ¶ 28 (“where a defendant charged with a petty misdemeanor * * * pleads

guilty or no contest, the trial court complies with [Crim.R. 11(E)] by informing the

defendant” of the effect of his plea); Mitchell at ¶ 8.

               The right to be informed that a guilty plea is a complete admission of

guilt is nonconstitutional and therefore subject to review for substantial compliance.

State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

Consequently, the failure to comply with a nonconstitutional right, such as the

information contained in Crim.R. 11(B)(1), will not invalidate a plea unless the

defendant suffered prejudice. Jones at ¶ 52, citing Griggs at ¶ 12. The test for

prejudice is “whether the plea would have otherwise been made.” State v. Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
              Under the substantial-compliance standard, we review the totality of

circumstances surrounding the defendant’s plea to determine whether he

subjectively understood that a guilty plea is a complete admission of guilt. Id. “‘[A]

slight deviation from the text of the rule is permissible,’ provided that, ‘under the

totality of the circumstances,’ ‘the defendant subjectively understands the

implications of his plea and the rights he is waiving.’” State v. Musleh, 8th Dist.

Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 14, quoting State v. Clark 119 Ohio St.3d

239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31. And where a defendant has entered a

guilty plea without asserting actual innocence, he is presumed to understand that he

has completely admitted his guilt and the trial court’s failure to inform the defendant

of the effect of his guilty plea as required by Crim.R. 11 is presumed not to be

prejudicial. Griggs at ¶ 19.

              Where there is a complete failure to comply with the relevant

mandates of Crim.R. 11, however, a defendant need not demonstrate prejudice.

Cleveland v. Bowman, 8th Dist. Cuyahoga No. 103287, 2016-Ohio-1545, ¶ 6, citing

Clark at ¶ 31 (applying the Ohio Supreme Court’s admonition in Clark that a

complete failure to comply with Crim.R. 11 in a felony case does not implicate a

prejudice analysis to a petty misdemeanor offense); Buckwald, 8th Dist. Cuyahoga

Nos. 92354 and 92356, 2009-Ohio-4032, ¶ 46 (finding a prejudice analysis not

necessary where the trial court completely failed to comply with Crim.R. 11(B)(2)

regarding the effect of the defendant’s no contest plea concerning a petty

misdemeanor offense).
              Here, we find that the trial court at least partially complied with its

obligations under Crim.R. 11. Although the trial court did not recite the exact

language of Crim.R. 11(B)(1) — that his guilty plea “is a complete admission” of guilt,

it informed Clifford of the nature of the charge, the rights he was giving up by

pleading guilty, including “the right to go to trial,” the “right to confront witness[es]

and have witnesses come in and testify in your behalf,” the “right to have the

prosecutor prove your guilt beyond a reasonable doubt,” and “your right to remain

silent for the limited purpose of pleading guilty.”

              Additionally, the court informed Clifford that “by pleading guilty I

could make a finding of guilt.” And after each advisement, Clifford indicated that he

understood, and the record reflects that he asked no questions nor demonstrated

any confusion. Although the trial court arguably conflated a guilty plea with a no

contest plea, which requires the trial court inform the defendant that the plea of no

contest is not an admission of defendant’s guilt, but is an admission of the truth of

the facts alleged in the indictment, the totality of the record indicates that Clifford

understood that a guilty plea is a complete admission of guilt. More importantly,

Clifford never asserted actual innocence at the plea hearing, and therefore, the law

presumes he understands that he has completely admitted his guilt.

              Finally, Clifford has failed to demonstrate prejudice. As previously

stated, he did not assert actual innocence anytime during the plea or the sentencing.

On the contrary, at sentencing, defense counsel informed the court that Clifford took

responsibility for his actions by pleading guilty. He is therefore presumed to
understand that he has completely admitted his guilt, and a trial court’s failure to

inform him of the effect of his guilty plea as required by Crim.R. 11 is presumed not

to be prejudicial. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, at

¶ 19. Additionally, during the sentencing, Clifford corrected the court by reporting

that the victim of his crime was not the mother of his child.

              In light of the foregoing, Clifford has failed to show that had he been

explicitly advised that his guilty plea constituted “a complete admission” of his guilt,

he would not have pled guilty.

              Clifford’s first and second assignments of error are overruled.

                                 III. The Journal Entry

              In his third assignment of error, Clifford contends that the trial court’s

journal entry incorrectly states that he was found guilty of domestic violence. The

state concedes the error.

              The trial court’s docket entry dated April 29, 2019, includes the

following two entries:

      Having been found guilty, the defendant is sentenced to 180 days of
      incarceration at the Cleveland House of Corrections. 149 days of
      incarceration are hereby suspended. Charge #1: Domestic Violence.
      Having been found guilty, is hereby sentenced to pay a fine in the
      amount of $1,000 and all court costs associated with this case. $1,000
      of the fine is hereby suspended. Charge #2: Aggravated Trespass.

              The record shows, however, that in exchange for Clifford’s guilty plea

to aggravated trespass in Count 2, the state agreed to request dismissal of the

remaining charges that included domestic violence (Count 1) and unlawful restraint
(Count 3). And on April 15, 2019, during the plea hearing, the court in fact dismissed

the two charges:

      Court: Understanding all of your rights, how do you plead to the
      aggravated trespass charge?
      Clifford: Guilty.
      Court: Court will accept the guilty plea, make a finding of guilt, will
      dismiss Counts 1 and 3, will pass this for sentencing until April 29th
      at 10:00.

              And then on April 29, 2019, the trial court sentenced Clifford on the

aggravated trespass charge to 180 days’ incarceration, $1,000 fine, court costs, and

two years’ active probation. The court waived the fine and suspended 149 days of

incarceration and credited Clifford with 31 days served.

              Courts possess the authority to correct errors in judgment entries so

that the record speaks the truth. State v. Trone, 8th Dist. Cuyahoga Nos. 108952

and 108966, 2020-Ohio-384, ¶ 23, citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d

158, 163-164, 656 N.E.2d 1288 (1995); Crim.R. 36. Errors that may be corrected by

the court include clerical errors, mistakes, or omissions that are mechanical in

nature and apparent on the record and do not involve legal decisions or judgment.

State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15;

Crim.R. 36. Nunc pro tunc entries are used to make the record reflect what the court

actually decided and not what the court might or should have decided or what the

court intended to decide. Miller at ¶ 15; Fogle at 164.

              Here, the journal entry that indicates Clifford was convicted of and

sentenced on the domestic violence charge was clearly a clerical error that does not
accurately reflect what the court decided in open court. Therefore, the trial court

shall issue a nunc pro tunc judgment entry reflecting that the domestic violence

charge was dismissed.

                Clifford’s third assignment of error is sustained.

                Judgment affirmed; case remanded for 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

municipal court to carry this judgment into execution.

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

of the Rules of Appellate Procedure.




_____________________________
MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., J., CONCUR
