[Cite as State v. Montanez, 2020-Ohio-1023.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                Plaintiff-Appellee,                  :
                                                              No. 108093
                v.                                   :

JOSE MONTANEZ,                                       :

                Defendant-Appellant.                 :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: March 19, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-616186-A


                                               Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Aqueelah A. Jordan, Assistant Prosecuting
                Attorney, for appellee.

                Jerome M. Emoff, for appellant.


EILEEN T. GALLAGHER, A.J.:

                   This cause came to be heard on the accelerated calendar pursuant to

App.R. 11.1 and Loc.App.R. 11.1. Defendant-appellant, Jose Montanez, appeals his

convictions and claims the following two errors:
      1. An inadequate inquiry by a trial court during a Crim.R. 11 colloquy
      renders a subsequent guilty plea void.

      2. The trial court failed to strictly comply with Crim.R. 11 thereby
      rendering appellant’s plea void.

              We find no merit to the appeal and affirm.

                       I. Facts and Procedural History

              Montanez was charged with two counts of rape, five counts of

kidnapping, two counts of gross sexual imposition, and one count each of attempted

rape and compelling prostitution. Pursuant to a plea agreement, Montanez pleaded

guilty to two counts of rape and two counts of gross sexual imposition. The

remaining counts were nolled.

              Montanez later asserted at the sentencing hearing that he did not

remember pleading guilty to two counts of rape and indicated that he wanted to

withdraw his guilty pleas. The court, the prosecutor, and defense counsel, however,

collectively recalled that Montanez pleaded guilty to two counts of rape. (Tr. 154.)

Their recollections were consistent with the judge’s notes, the journalization of the

plea hearing, the presentence investigation report, a mitigation of penalty report,

and the transcript of the plea hearing. Therefore, the court overruled defense

counsel’s request for leave to file a motion to withdraw Montanez’s guilty pleas and

proceeded with sentencing. The court sentenced Montanez to eight years on the

rape charge alleged in Count 1, 24 months on each of the gross sexual imposition

charges alleged in Counts 3 and 7, and eight years on the second rape charge alleged
in Count 9. The court ordered the sentences to run consecutively for an aggregate

20-year sentence. This appeal followed.

                               II. Law and Analysis

                             A. Effect of Medication

               In the first assignment of error, Montanez argues the trial court failed

to ensure that he entered his guilty pleas knowingly, intelligently, and voluntarily

because the court failed to adequately inquire into the effect Montanez’s anxiety

medication had on his ability to understand the proceedings.

               A defendant’s guilty plea must be made knowingly, intelligently, and

voluntarily. “Failure on any of those points renders enforcement of the plea

unconstitutional under both the United States Constitution and the Ohio

Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996); see

also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. As

the Ohio Supreme Court explained in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462:

       A criminal defendant’s choice to enter a plea of guilty or no contest is a
       serious decision. The benefit to a defendant of agreeing to plead guilty
       is the elimination of the risk of receiving a longer sentence after trial.
       But, by agreeing to plead guilty, the defendant loses several
       constitutional rights. * * * The exchange of certainty for some of the
       most fundamental protections in the criminal justice system will not be
       permitted unless the defendant is fully informed of the consequences
       of his or her plea. Thus, unless a plea is knowingly, intelligently, and
       voluntarily made, it is invalid.

Id. at ¶ 25.
               In considering whether a criminal defendant knowingly, intelligently,

and voluntarily entered a guilty plea, we first review the record to determine whether

the trial court complied with Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128,

566 N.E.2d 658 (1991).        Crim.R. 11(C) sets forth certain constitutional and

procedural requirements with which the trial court must comply prior to accepting

a guilty plea. Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in

a felony case without personally addressing the defendant and doing all of the

following:

      (a) Determining that the defendant is making the plea voluntarily, with
      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.

      (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.

      (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.

Crim.R. 11(C)(2).

               The purpose of Crim.R. 11(C) is “‘to convey to the defendant certain

information so that he [or she] can make a voluntary and intelligent decision

whether to plead guilty.’” State v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-
Ohio-294, ¶ 12, quoting State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d

115 (1981). When a trial court complies with Crim.R. 11(C)(2) in accepting a plea,

there is a presumption that the defendant’s plea was knowingly, intelligently, and

voluntarily made. See, e.g., State v. Alexander, 8th Dist. Cuyahoga No. 103754,

2016-Ohio-5707, ¶ 11; State v. Murray, 12th Dist. Brown No. CA2015-12-029, 2016-

Ohio-4994, ¶ 20.

              Montanez advised the court at the plea hearing that he was taking

medication for anxiety and panic attacks. The court asked what medication he was

taking, and Montanez informed the court that he was taking Buspar. The court

followed up with additional questions to determine if the medication was affecting

Montanez’s ability to understand the Crim.R. 11 colloquy:

      THE COURT: You are taking some medication.              When are you
      supposed to take it?

      THE DEFENDANT: 9:00 in the morning I take 20 milligrams and 20
      milligrams at 4:00 in the afternoon.

      THE COURT: Did you have your dosage yesterday afternoon?

      THE DEFENDANT: Yes.

      THE COURT: Have your dosage this morning?

      THE DEFENDANT: Yes.

      THE COURT: Okay. Does your medication at all impact on your ability
      to think clearly, to hear clearly and understand what’s going on at all?

      THE DEFENDANT: When it first starts kicking in, I feel a pulsation in
      my head, the whole front of my head.
      THE COURT: How are you feeling right now? It’s about 10:00 now,
      10:05. How are you feeling now?
      THE DEFENDANT: Nervous.

      THE COURT: Well that’s natural. Are you otherwise thinking clearly,
      understanding what we’re talking about, everything like that?

      THE DEFENDANT: 80 percent.

      THE COURT: Okay. Is there something that I’ve said so far or that is
      happening so far that you’re not clear on?

      THE DEFENDANT: No, not yet.

      THE COURT: If that happens, would you make sure you let me know
      because I will be — like I said, we will be going back and forth with these
      questions, and I can only rely upon what your answers are. Okay?

      THE DEFENDANT: Okay.

(Tr. 147-149.) Despite Montanez’s argument to the contrary, the court thoroughly

inquired into the nature of Montanez’s anxiety medication and any effects it might

have on his understanding.

              This court has held that where a trial court complies with the dictates

of Crim.R. 11(C), the resulting guilty plea is presumed valid even though the

defendant took medication that could impact the defendant’s ability to think clearly

and rationally as long as the record supports that finding. See, e.g., State v. Brown,

8th Dist. Cuyahoga No. 103835, 2016-Ohio-5415.             In Brown, the defendant

informed the court during a plea hearing that he was on medication for depression

and that his medication sometimes interferes with his ability to think rationally. Id.

at ¶ 22. When the court inquired as to whether the defendant was thinking clearly
and rationally on the morning of his plea hearing, the defendant responded: “I don’t

know.” Id. at ¶ 22.

              On further questioning, the defendant informed the court that he had

discussed the plea to his satisfaction with counsel and agreed to inform the court

that if he did not understand something during the hearing, he would stop the court

and ask for an explanation. Based on this inquiry and the fact that the trial court

complied with the requirements of Crim.R. 11(C), this court concluded that the

defendant entered his guilty pleas knowingly, intelligently, and voluntarily even

though he was on medication that occasionally affected his thinking. Id. at ¶ 25.

              As in Brown, Montanez indicated that he was satisfied with the legal

services provided to him by defense counsel. (Tr. 139-140.) Although he indicated

that his thinking was not entirely clear at time of the plea hearing, he agreed to

inform the court if he did not understand any aspect of the plea proceedings. (Tr.

138-139.) The trial court explained each of Montanez’s constitutional rights and

Montanez indicated that he understood each one. Montanez also indicated that he

understood the maximum penalties he could receive, his required subjection to

postrelease control, and his mandatory sex-offender registration. (Tr. 143-147.)

              After completing the colloquy, the court again asked if Montanez

understood everything by asking: “Anything that you can think of that we went over

that you are not crystal clear on that we can answer a question for you or help to

clear up for you?” Montanez replied: “I understood everything.” (Tr. 147-148.)
               Despite Montanez’s argument to the contrary, the court dutifully

inquired into whether Montanez’s anxiety medication affected his ability to enter a

knowing, intelligent and voluntary guilty plea. Based on the trial court’s careful

questioning and Montanez’s responses to those questions, we find no reason to

doubt that Montanez understood the proceedings and was capable of entering his

guilty pleas knowingly, intelligently, and voluntarily.

               Therefore, the first assignment of error is overruled.

                                 C. Right to Trial

               In the second assignment of error, Montanez argues his guilty pleas

should be vacated because the trial court failed to explain that he was waiving his

right to a jury trial by pleading guilty. He also contends the trial court failed to

ensure that Montanez understood he would be subjected to mandatory prison time

and postrelease control.

               A trial court must strictly comply with those provisions of Crim.R.

11(C)(2) that relate to the waiver of constitutional rights. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, at syllabus. When the trial court fails to explain

the constitutional rights set forth in Crim.R. 11(C)(2)(c), it is presumed the plea was

entered involuntarily and is therefore invalid. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, 893 N.E.2d 462, at ¶ 31. However, failure to use the exact language

contained in Crim.R. 11(C) in informing a criminal defendant of his constitutional

rights is not grounds for vacating a plea as long as the record shows that the trial

court explained these rights in a manner reasonably intelligible to the defendant. Id.
at ¶ 18 (exact language is preferred, but rote recitation of the rule is not required for

strict compliance), citing State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d

115 (1981).

               The trial court reviewed Montanez’s constitutional rights with him in

a reasonably intelligent manner.       The court prefaced the explanation of each

individual right by informing Montanez that “by entering into this plea here today,

you will be waiving or giving up these rights that we typically refer to as being trial

rights.” (Tr. 140-141.) With respect to the waiver of Montanez’s right to a jury trial,

the court explained that Montanez “[had] the right to go to trial in this case * * * and

the jury [had] to be unanimous in their decision as to [his] guilt or [his] innocence.”

(Tr. 141.) The court also explained that Montanez could waive his right to a jury trial

“and have [the court] make the decision in what is referred to as a bench trial.” (Tr.

141.) The court asked Montanez if he understood these rights, and Montanez

replied, “Yes.” (Tr. 141.)

               The court further explained the government’s burden to prove his

guilt beyond a reasonable doubt as well as the defendant’s rights to call and cross-

examine witnesses, to invoke the court’s subpoena power, to testify on his own

behalf, and to remain silent. The court asked Montanez if he understood these

rights, and Montanez again replied: “Yes.” (Tr. 142.) Therefore, the record reflects

that the trial court explained the waiver of Montanez’s constitutional rights in a

manner in which he could reasonably understand.
              Montanez nevertheless contends the trial court failed to explain the

mandatory nature of both his prison sentence and postrelease control.

              A trial court must substantially comply with the requirements of

Crim.R. 11(C)(2)(a) when explaining nonconstitutional rights such as the right to be

informed of the maximum penalty involved. Veney at ¶ 14, citing State v. Stewart,

51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). “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 Stewart at 92-93.

              The trial court explained at the plea hearing that Montanez’s guilty

pleas would result in a mandatory prison sentence. The court advised Montanez

that he was pleading guilty to two counts of rape, which were first-degree felonies.

(Tr. 143.) With respect to penalties, the court explained: “Now, each felony of the

first degree is punishable by a potential term of incarceration in yearly increments

of between 3 and 11 years in the state penitentiary.” Thus, the court explained that

each rape conviction carried a minimum of three years in prison. Moreover, the

court discussed the sentencing range Montanez agreed to as part of his plea

agreement:

      THE COURT: * * * [T]he State had represented that part of this plea
      agreement would be that there would be range that I would choose
      from when I decided my sentence. It’s an agreed recommended
      sentence that the sentence would be between ten and 30 years. Do you
      understand that, sir?

      THE DEFENDANT: Yes.
      THE COURT: As I explained to you yesterday, I don’t have to follow
      that recommendation if I choose not to. I am telling you that I will. I
      will have that sentence between those year ranges. So, although there’s
      a possible sentence of up to a 32-year sentence, first of all, I will at least
      cap at 32 and, again, I won’t go over that recommendation, I will abide
      by that recommendation. Do you understand that, sir?

      THE DEFENDANT: Yes.

(Tr. 144-145.) The court further explained the maximum fines that could be

imposed, but advised Montanez that it was not likely to impose them. (Tr. 145.)

Thus, the court explained that Montanez was definitely going to prison and that

probation was not an option.         Indeed, Montanez’s acknowledgment that he

understood the agreed recommended sentence is evidence that he understood the

mandatory nature of his prison sentence because defense counsel could not have

agreed to the sentencing range without Montanez’s consent.

               With respect to postrelease control, the court told Montanez that

“because you will be receiving a prison sentence here * * * you will be subject to

supervision upon your release by the Ohio Parole Authority on what is referred to as

postrelease control or PRC.” (Tr. 145.) The court further explained that postrelease

control is “a fancy term of parole” and that the parole board would “supervise you

for at least a five-year period.” (Tr. 145.) Finally, the court described the penalties

for violating postrelease control, and Montanez indicated that he understood all the

penalties. (Tr. 146.) Therefore, the trial court substantially complied with its

obligation to explain the maximum penalties Montanez could receive by virtue of his

guilty pleas, including postrelease control.
               The second assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from 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 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.



EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
MARY EILEEN KILBANE, J., CONCUR
