[Cite as State v. Robinette, 2015-Ohio-4869.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                  :

                 Plaintiff-Appellee,            :               No. 15AP-255
                                                            (C.P.C. No. 14CR-4026)
v.                                              :
                                                         (REGULAR CALENDAR)
James Robinette,                                :

                 Defendant-Appellant.           :




                                          D E C I S I O N

                                   Rendered on November 24, 2015


                 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
                 appellee.

                 Thomas A. Gjostein, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas.

BROWN, P.J.
        {¶ 1} This is an appeal by defendant-appellant, James Robinette, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following his entry of a guilty plea to operating a vehicle under the influence of
alcohol.
        {¶ 2} On July 30, 2014, appellant was indicted on one count of operating a vehicle
under the influence of alcohol ("OVI"), in violation of R.C. 4511.19; the indictment
charged a felony of the fourth degree, alleging that appellant had been convicted of or
pleaded guilty to three or more violations of R.C. 4511.19(A) or (B) within six years of the
instant offense. On September 8, 2014, appellant entered a plea of not guilty.
No. 15AP-255                                                                          2

       {¶ 3} On January 15, 2015, appellant appeared before the trial court and
withdrew his not guilty plea and entered a plea of guilty to the OVI charge. During the
plea hearing, the prosecutor gave the following recitation of facts:
               [T]his incident occurred back on June 12, 2014,
               approximately 2:00 in the morning. A Deputy Sheriff for
               Franklin County observed a vehicle speeding. When he
               turned his attention to it, he noticed that it had trouble
               staying within its lane and looked like he had trouble
               controlling the vehicle.

               The officer stopped the vehicle and came in contact with the
               driver, who was Mr. Robinette. He had bloodshot, glassy eyes
               and slurred speech. He asked him to step out of the vehicle
               and walk to the back. As he did so, he was very unsteady on
               his feet. He actually fell down at one point, actually looked at
               the officer and said, "Boy, I'm drunk."

               The officer asked him to perform a field sobriety test; he
               refused, saying he wouldn't pass them anyway. He asked him
               for a test of his urine and he refused to submit to that.

               He was placed under arrest for the OVI, charged as a felony
               because he has three priors within a six-year period * * *
               making this a fourth offense within a six-year period.

(Tr. 14-15.)
       {¶ 4} The trial court, after conducting a colloquy with appellant, accepted his
guilty plea. By judgment entry filed March 6, 2015, the court imposed a sentence of 24
months incarceration, and suspended appellant's driver's license for a period of 60
months.
       {¶ 5} On appeal, appellant raises the following two assignments of error for this
court's review:

               [I.] THE TRIAL COURT ERRED WHEN IT DID NOT
               COMPLY WITH CRIM. R. 11, FOR FAILURE TO
               DETERMINE THAT THE APPELLANT UNDERSTOOD THE
               NATURE AND ELEMENTS OF THE CHARGE AGAINST
               HIM.

               [II.] TRIAL COUNSEL WAS RENDERED INEFFECTIVE
               FOR FAILING TO OBJECT TO THE DEFECT IN THE
               INDICTMENT, WHICH FAILED TO STATE THAT
No. 15AP-255                                                                            3

               APPELLANT HAD REFUSED A URINE TEST AND THIS
               FAILURE TO OBJECT WAS PLAIN ERROR.

      {¶ 6} Under the first assignment of error, appellant asserts that his plea was
invalid because the trial court did not strictly comply with Crim.R. 11. Specifically,
appellant contends the court failed to determine whether he understood the nature and
elements of the charges against him.
      {¶ 7} Crim.R. 11(C)(2) states as follows:
               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:

               (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.

      {¶ 8} Prior to accepting a guilty plea in a felony case, a trial court, pursuant to
Crim.R. 11(C), "must conduct an oral dialogue with the defendant to determine that the
plea is voluntary and the defendant understands the nature of the charges and the
maximum penalty involved, and to personally inform the defendant of the constitutional
guarantees he is waiving by entering a guilty plea." State v. Kaminski, 8th Dist. No.
93744, 2010-Ohio-4669, ¶ 2. A trial court is required to "strictly comply with the Crim.R.
11(C)(2) requirements regarding the waiver of constitutional rights, meaning the court
No. 15AP-255                                                                              4

must actually inform the defendant of the constitutional rights he is waiving and make
sure the defendant understands them." Id. at ¶ 3. By contrast, "[w]ith respect to the other
requirements of Crim.R. 11(C)(2) regarding nonconstitutional rights, 'substantial
compliance' is sufficient." Id. The term " '[s]ubstantial 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. Further, a defendant challenging his guilty plea
on the basis that it was not knowingly, intelligently, and voluntarily made "must
demonstrate a prejudicial effect of which the test is whether the plea would have
otherwise been made." State v. Scarnati, 11th Dist. No. 2001-P-0063 (Feb. 22, 2002).
       {¶ 9} During the plea hearing in the instant case, the colloquy between the trial
court and appellant included the following dialogue:
               THE COURT: All right. And today, the entry of guilty plea
               form in this case, did your counsel read that to you, then?

               THE DEFENDANT: Yes, he did.

               THE COURT: * * * And did you have any problems
               understanding what he read to you?

               THE DEFENDANT: No.

               ***

               THE COURT: Have you had an opportunity to talk with your
               attorney about the charges against you?

               THE DEFENDANT: Yes.

               THE COURT: And was he able to answer any questions you
               may have had about those charges?

               THE DEFENDANT: Yes.

               THE COURT: Do you feel that you understand the charges
               against you?

               THE DEFENDANT: Yes.

               THE COURT:        Are you satisfied with your attorney's
               representation?
No. 15AP-255                                                                              5

               THE DEFENDANT: Yeah.

               ***

               THE COURT: Okay. I have in front of me that entry of guilty
               plea form. * * * Did you sign this form?

               THE DEFENDANT: Yes, I did.

               THE COURT: And before you signed it you had an
               opportunity to go over it with your attorney, right?

               THE DEFENDANT: Yeah.

               THE COURT: And was he able to answer any questions you
               may have had about the form?

               THE DEFENDANT: Yeah, he has, yeah.

(Tr. 5-8.)
       {¶ 10} During the plea hearing, the trial court also addressed the constitutional
rights appellant was waiving by pleading guilty, and appellant responded affirmatively
when the court inquired whether he wished to "waive or give up those constitutional trial
rights." (Tr. 13.) Further, the trial court questioned defense counsel as to whether he was
satisfied with "your client's decision to waive his constitutional trial rights."   Counsel
responded: "I am, your Honor." (Tr. 13.)
       {¶ 11} As noted, appellant contends the trial court failed to determine whether he
understood the nature of the charges against him. Specifically, appellant contends the
trial court erred in failing to ensure he understood the elements of OVI.
       {¶ 12} Under Ohio law, however, "courts are not required to explain the elements
of each offense, or even to specifically ask the defendant whether he understands the
charges, unless the totality of the circumstances shows that the defendant does not
understand the charges." State v. Cobb, 8th Dist. No. 76950 (Mar. 8, 2001). The
" 'court's determination that a defendant understands the charge can be based on the
surrounding circumstances, such as recitations of discussions between the defendant and
his attorney.' " Id., quoting State v. Williams, 8th Dist. No. 77437 (Nov. 22, 2000).
Further, "[t]here is a presumption * * * that the defense counsel did inform the defendant
of the nature of the charges." State v. Philpott, 8th Dist. No. 74392 (Dec. 14, 2000) (trial
No. 15AP-255                                                                               6

court not required to inform defendant of each element of the crime; defendant failed to
reference any section of the transcript indicating he did not understand or was confused
about any of the elements of the charges, "[n]or did his attorney express any concern
regarding his understanding of the consequences of his plea and the nature of the
offense").
       {¶ 13} In the present case, during the colloquy between appellant and the trial
court, appellant responded affirmatively when the court asked whether he had reviewed
the nature of the charge with his attorney, and whether he understood the charge. In
general, when a "defendant 'indicates that he understands the nature of the charge, in the
absence of evidence to the contrary or anything in the record that indicates confusion, it is
typically presumed that the defendant actually understood the nature of the charge
against him.' " State v. Martin, 8th Dist. No. 92600, 2010-Ohio-244, ¶ 13, quoting State
v. Wangul, 8th Dist. No. 84698, 2005-Ohio-1175, ¶ 10.
       {¶ 14} Appellant also acknowledged that he reviewed the entry of guilty plea form
with his attorney, and indicated he was satisfied with his counsel's representation. In
State v. Thomas, 10th Dist. No. 04AP-866, 2005-Ohio-2389, this court addressed an
appellant's claim that the trial court failed to determine he understood the nature of the
charge to which he entered a guilty plea, including the appellant's argument that the court
did not discuss the elements of the charge. Based upon consideration of the totality of the
circumstances, this court found that the appellant understood the nature of the charge,
noting in part that "[t]he entry of guilty plea form that appellant signed identified the
charge and stated that he reviewed the facts and law of his case with counsel," and that the
appellant "was present at his plea hearing when the prosecuting attorney recited the facts
of the case to the trial court" and "did not voice any objection to those facts or raise any
concerns about the nature of the charge." Id. at ¶ 12.
       {¶ 15} Similarly, in the instant case, appellant's entry of guilty plea identified the
charge and stated appellant had "reviewed the facts and law of my case with my counsel";
further, appellant's counsel did not object to the recitation of facts nor express concern
about his client's understanding of the charge. Here, nothing in the record indicates
appellant did not understand the charge to which he entered a guilty plea. Based upon
this court's review, the totality of the circumstances indicates that appellant understood
No. 15AP-255                                                                                               7

the nature of the charge against him, and we find that the trial court substantially
complied with Crim.R. 11(C)(2). See State v. Bailey, 11th Dist. No. 2006-G-2734, 2007-
Ohio-6160, ¶ 22 (while trial judge "did not set forth the elements * * * of [OVI] or ask
Bailey if he understood the charge * * * there are sufficient surrounding circumstances to
warrant the conclusion that Bailey, in fact, understood the charge," including the fact he
told the court he had spoken with defense counsel prior to changing his plea, and that he
understood he would be pleading to a fourth-degree OVI).
        {¶ 16} Accordingly, appellant's first assignment of error is not well-taken and is
overruled.
        {¶ 17} Under his second assignment of error, appellant argues his trial counsel was
ineffective for failing to recognize obvious defects in the indictment. Appellant further
contends that the trial court's failure to recognize these defects constituted plain error.
        {¶ 18} In order to prevail on a claim of ineffective assistance of counsel with
respect to the entry of a guilty plea, a defendant must meet the test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). State v. Xie, 62 Ohio St.3d 521, 524 (1992).
Specifically, the defendant must first " 'show that counsel's performance was deficient,' "
id., quoting Strickland at 687, and "[s]econd, 'the defendant must show that there is a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty.' "
Id., quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).
        {¶ 19} Appellant notes the indictment at issue states that he had previously been
convicted of or pleaded guilty to a violation of R.C. 4511.19 and includes a listing of those
prior convictions. Appellant contends, however, that the indictment did not include
mandatory language for a test refusal or high test as required under several provisions of
R.C. 4511.19(A). According to appellant, it would be impossible for a defendant to have
notice as to whether his felony OVI involved a high test or a test refusal under the
circumstances.
        {¶ 20} In response, the state argues that appellant could have been charged under
R.C. 4511.19(A)(2)(b)1 based on the recitation of facts; however, the state maintains, the


1R.C. 4511.19(A)(2) "prohibits a person who has been convicted of a prior OVI offense in the previous 20
years from (1) operating a motor vehicle under the influence of alcohol and (2) refusing to submit to a
chemical test after being asked to do so by a law enforcement officer." State v. Turner, 11th Dist. No. 2007-
P-0090, 2008-Ohio-3898, ¶ 41.
No. 15AP-255                                                                                 8

language found in appellant's indictment alleges a violation of R.C. 4511.19(A)(1)(a), and
the trial court properly sentenced him under R.C. 4511.19(G)(1)(d). We agree.
       {¶ 21} R.C. 4511.19(A)(1) states in part: "No person shall operate any vehicle,
streetcar, or trackless trolley within this state, if, at the time of the operation, any of the
following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a
combination of them." R.C. 4511.19(G)(1)(d) states in part: "[A]n offender who, within six
years of the offense, previously has been convicted of * * * three or four violations of
division (A) or (B) of this section or other equivalent offenses * * * is guilty of a felony of
the fourth degree." R.C. 4511.19(G)(1)(d)(i) further provides, in relevant part:

               The court shall sentence the offender to all of the following:

               If the sentence is being imposed for a violation of division
               (A)(1)(a), (b), (c), (d), (e), or (j) of this section, * * * in the
               discretion of the court, either a mandatory term of local
               incarceration of sixty consecutive days in accordance with
               division (G)(1) of section 2929.13 of the Revised Code or a
               mandatory prison term of sixty consecutive days in
               accordance with division (G)(2) of that section if the offender
               is not convicted of and does not plead guilty to a specification
               of that type. * * * If the court imposes a mandatory prison
               term, notwithstanding division (A)(4) of section 2929.14 of
               the Revised Code, it also may sentence the offender to a
               definite prison term that shall be not less than six months and
               not more than thirty months and the prison terms shall be
               imposed as described in division (G)(2) of section 2929.13 of
               the Revised Code. If the court imposes a mandatory prison
               term or mandatory prison term and additional prison term, in
               addition to the term or terms so imposed, the court also may
               sentence the offender to a community control sanction for the
               offense, but the offender shall serve all of the prison terms so
               imposed prior to serving the community control sanction.

       {¶ 22} In the instant case, the indictment alleged in part that appellant "did
operate a vehicle * * * while * * * under the influence of alcohol * * * and within six (6)
years of the instant offense * * * was previously convicted of or pleaded guilty to three or
more violations of division (A) or (B) of section 4511.19 of the Ohio Revised Code." Here,
the indictment alleged a violation of R.C. 4511.19(A)(1)(a), a felony of the fourth degree,
and the trial court sentenced him to a prison term of 24 months, which was within the
No. 15AP-255                                                                            9

statutory range of sentencing under R.C. 4511.19(G)(1)(d)(1). Based upon the record
presented, appellant has shown neither that his counsel rendered ineffective assistance
nor that the trial court committed plain error with respect to the indictment. Appellant's
second assignment of error is overruled.
      {¶ 23} Based upon the foregoing, appellant's first and second assignments of error
are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
                                                                     Judgment affirmed.

                           TYACK and DORRIAN, JJ., concur.

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