[Cite as State v. Cline, 2014-Ohio-241.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              PICKAWAY COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 13CA7
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
LESLIE G. CLINE,               :    ENTRY
                               :
    Defendant-Appellant.       :    Released: 01/21/14
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio Public Defender, and Melissa M. Prendergast,
Assistant State Public Defender, Columbus, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Leslie Cline appeals his conviction and sentence in the

Pickaway County Court of Common Pleas imposed after he pled guilty to

one count of trafficking in heroin, a felony of the fifth degree. On appeal,

Appellant raises three assignments of error contending that 1) he was

deprived of state and federal right to due process when the trial court

accepted an unknowing, unintelligent, and involuntary guilty plea; 2) the

trial court erred as a matter of law when it sentenced him to consecutive

prison terms without making the findings necessary to impose consecutive
Pickaway App. No. 13CA7                                                           2


prison terms; and 3) trial counsel provided ineffective assistance when he

failed to object to the trial court’s insufficient plea colloquy and erroneous

imposition of consecutive sentences.

      {¶2} Because we find that the trial court failed to strictly comply with

Crim.R. 11(C)(2)(c) when accepting Appellant’s plea, Appellant’s first

assignment of error is sustained. As such, we find that Appellant’s plea is

invalid and must be vacated. In light of our disposition of Appellant’s first

assignment of error, Appellant’s second and third assignments of error have

been rendered moot and we do not address them. Accordingly, Appellant’s

plea, conviction and sentence are vacated, and this matter is remanded to the

trial court for further proceedings consistent with this opinion.

                                    FACTS

      {¶3} This matter comes to us on appeal after the Pickaway County

Court of Common Pleas convicted and sentenced Appellant, Leslie Cline, on

one fifth degree felony count of trafficking in heroin, after he pled guilty to

that charge on December 19, 2012. The facts are as follows, as agreed upon

by the parties on appeal:

      “A Pickaway County Grand Jury indicted Mr. Cline on one

      count of trafficking in heroin, in violation of R.C. 2925.03(C),

      based on the allegation that he sold four balls of heroin for $80.
Pickaway App. No. 13CA7                                                    3


      On December 19, 2012, the trial court held a plea hearing.

      Prior to accepting Mr. Cline’s guilty plea to the sole count of

      trafficking in heroin, a fifth-degree felony, the following

      exchange occurred between the trial court and Mr. Cline:

            ‘THE COURT:         You understand by pleading guilty,

            you’re giving up your right to have a jury trial and your

            right to make the State of Ohio provide [sic] you guilty

            beyond a reasonable doubt, twelve people from Pickaway

            County. If you plead guilty, you’re admitting the truth of

            the allegations contained in this charge, and as a result of

            your conviction and sentence upon your release from

            prison, you’re subject to the possibility of post release

            control for three years, which is like what we used to call

            parole. It’s not mandatory in this case, but it’s possible.

            If that happens there will be rules and regulations

            concerning your conduct, you’ll have a parole officer

            monitoring you, if you violate those rules and

            regulations, they can make you go back to prison for up

            to nine months on each violation. Legally, the violations

            can total up to one-half of the original sentence I give to
Pickaway App. No. 13CA7                                                  4


            you, which even if I gave you the maximum would be

            half of twelve is six. That’s not a big deal. More

            importantly is, if you get convicted of a new felony while

            on post release control, you can be made to return to

            prison under this case to serve the greater of one year or

            time remaining on post release control, which could be

            up to three years. And, by law, that has to be served

            consecutive, which means back-to-back with any

            sentence you receive due to that new felony conviction.

            THE DEFENDANT:              I understand, Your Honor.

            THE COURT:           Any questions about your rights?

            THE DEFENDANT:              Not about my rights. No, Your

            Honor.’

      Following this exchange, the trial court accepted Mr. Cline’s

      guilty plea to the sole count of trafficking in heroin.

            The trial court held Mr. Cline’s sentencing hearing on

      March 13, 2013. The State recommended that the court

      sentence Mr. Cline to eight-months incarceration. Through his

      defense attorney, Mr. Cline requested that the court order any

      prison sentence imposed in this case to run concurrently to the
Pickaway App. No. 13CA7                                                                                  5


        nine-month prison sentence Mr. Cline received in Shelby

        County Case No. 12CR000002.1 In response, the trial court

        stated ‘There’s no way. I don’t even know how to spell

        concurrent.’ Mr. Cline pointed out that despite his criminal

        history, he had never before served a prison sentence, to which

        the court replied:

                 ‘Well, you’re lucky. Because people probably kept

                 doing what you’re asking me to do, have pity on you or

                 whatever. Well, you’re getting a little bit old for this too.

                 You’re younger than I am, but at 53 years of age I’d

                 think you’d knock this off.

                 For this offense it will be the order of the court that you

                 stand committed to the correction reception center for a

                 period of nine months, pay the court costs, your driver’s

                 license suspended six months, and that sentence is

                 consecutive to the one you’re currently serving from

                 Shelby County. That’s all.’ ”

        {¶4} The trial court filed an entry of sentence and advisement of

discretionary post release control on March 15, 2013. Appellant filed a pro
1
 Mr. Cline pleaded guilty to one fifth degree felony count of possession of criminal tools, in violation of
R.C. 2923.24, and on January 16, 2013, was sentenced to twelve months in prison. Jan. 16, 2013 Judgment
Entry on Community Control, Shelby Co. Case No. 12CR000002.
Pickaway App. No. 13CA7                                                        6


se motion for leave to file a delayed appeal on May 14, 2013, which this

Court granted. Thus, this matter is now properly before us on review,

Appellant having raised three assignments of error as follows.

                        ASSIGNMENTS OF ERROR

“I.    MR. CLINE 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.

II.    THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
       SENTENCED MR. CLINE TO CONSECUTIVE PRISON TERMS
       WITHOUT MAKING THE FINDINGS NECESSARY TO IMPOSE
       CONSECUTIVE PRISON TERMS UNDER R.C. 2929.14.

III.   TRIAL COUNSEL PROVIDED CONSTITUTIONALLY
       INEFFECTIVE ASSISTANCE WHEN HE FAILED TO OBJECT
       TO THE TRIAL COURT’S INSUFFICIENT PLEA COLLOQUY
       AND ERRONEOUS IMPOSITION OF CONSECUTIVE
       SENTENCES.”

                        ASSIGNMENT OF ERROR I

       {¶5} In his first assignment of error, Appellant contends that he was

deprived of his right to due process under both the federal and state

constitutions when the trial court accepted an unknowing, unintelligent, and

involuntary guilty plea. The State candidly concedes in its brief that the trial

court failed to advise Appellant that by pleading guilty he was waiving his
Pickaway App. No. 13CA7                                                        7


constitutional rights to confront his accusers, compulsory process to obtain

witnesses, and his privilege against self incrimination.

      {¶6} The ultimate inquiry when reviewing a trial court's acceptance

of a guilty plea is whether the defendant entered the plea in a knowing,

intelligent, and voluntary manner. See State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 7; citing State v. Engle, 74 Ohio St.3d

525, 527, 660 N.E.2d 450 (1996). A defendant enters a plea in a knowing,

intelligent, and voluntary manner when the trial court fully advises the

defendant of all the constitutional and procedural protections set forth in

Crim.R. 11(C) that a guilty plea waives. See State v. Clark, 119 Ohio St.3d

239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; citing Engle at 527; State v.

Eckler, 4th Dist. Adams No. 09CA878, 2009-Ohio-7064, ¶ 48. Thus, when a

court reviews a trial court's acceptance of a guilty plea, it must

independently review the record to ensure that the trial court followed the

dictates of Crim.R. 11(C). See State v. Kelley, 57 Ohio St.3d 127, 128, 566

N.E.2d 658 (1991) (“When a trial court or appellate court is reviewing a plea

submitted by a defendant, its focus should be on whether the dictates of

Crim.R. 11(C) have been followed.”); Eckler at ¶ 48 (noting that standard of

review is de novo); State v. Hamilton, 4th Dist. Hocking No. 05CA4, 2005-
Pickaway App. No. 13CA7                                                           8


Ohio-5450, ¶ 9; see, also, State v. Gilmore, 8th Dist. Cuyahoga Nos. 92106-

92109, 2009-Ohio-4230, ¶ 12.

      {¶7} Crim.R. 11(C)(2)(a)-(c) sets forth the process a trial court must

follow before accepting a guilty plea. The rule prohibits a trial court from

accepting a guilty plea unless the court personally addresses the defendant

and (1) determines “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[;]” (2) informs “the defendant of and determin[es] 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[;]”

and (3) informs “the defendant and determin[es] 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} When a trial court engages in a plea colloquy with the

defendant, it must strictly comply with Crim.R. 11(C)(2)(c), which sets forth
Pickaway App. No. 13CA7                                                             9


the constitutional rights a guilty plea waives. Thus, the trial court must

explain to the defendant, either literally or in a reasonably intelligible

manner, that a guilty plea waives (1) the right to a jury trial, (2) the right to

confront one's accusers, (3) the right to compulsory process to obtain

witnesses, (4) the right to require the state to prove guilt beyond a reasonable

doubt, and (5) the privilege against compulsory self-incrimination. Veney at

syllabus and ¶¶ 18, 27 (stating that trial court must literally comply with

Crim.R. 11(C)(2)(c), but its failure to do so will not invalidate a plea when

the trial court adequately conveys the information to the defendant in a

reasonably intelligible manner). Failure to do so renders the plea invalid. Id.

at syllabus.

      {¶9} “The best way to ensure that pleas are entered knowingly and

voluntarily is to simply follow the requirements of Crim.R. 11 when

deciding whether to accept a plea * * *.” Clark at ¶ 29; see, also, State v.

Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981) (stating that “the

best method of informing a defendant of his constitutional rights is to use the

language contained in Crim.R. 11(C), stopping after each right and asking

the defendant whether he understands the right and knows that he is waiving

it by pleading guilty”). Thus, “ ‘[l]iteral compliance with Crim.R. 11, in all

respects, remains preferable to inexact plea hearing recitations.’ ” Clark at ¶
Pickaway App. No. 13CA7                                                            10


29; quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814

N.E.2d 51, ¶ 19, fn.2.

      {¶10} However, “a rote recitation of Crim.R. 11(C) is not required,

and failure to use the exact language of the rule is not fatal to the plea.”

Ballard at 480. Instead, the trial court need only “explain[ ] or refer[ ]” to

the Crim.R. 11(C) protections “in a manner reasonably intelligible to that

defendant.” Id.; see, also, Veney at ¶ 27 (stating that “a trial court can still

convey the requisite information on constitutional rights to the defendant

even when the court does not provide a word-for-word recitation of the

criminal rule, so long as the trial court actually explains the rights to the

defendant”). Thus, a reviewing court should not invalidate a plea merely

because a trial court did not engage in a “formalistic litany of constitutional

rights.” Ballard at 480.

      {¶11} The case sub judice is not one which involves the question of

whether the specific language used by the trial court adequately conveyed to

Appellant the rights in which he was waiving by pleading guilty. Rather, as

argued by Appellant and conceded by the State, this case involves a situation

where the trial court completely failed to inform Appellant of certain

constitutional rights during the on-the-record colloquy, which is required by

Crim.R. 11(C)(2)(c). As set forth above, the trial court’s advisement of the
Pickaway App. No. 13CA7                                                        11


constitutional rights Appellant was waiving during the colloquy consisted of

the following:

      “You understand by pleading guilty, you’re giving up your

      right to have a jury trial and your right to make the State of

      Ohio provide [sic] you guilty beyond a reasonable doubt,

      twelve people from Pickaway County.”

Thus, the trial court completely failed to inform Appellant that he was

waiving his constitutional rights to confront his accusers, compulsory

process to obtain witnesses, and his privilege against self incrimination.

      {¶12} As set forth above, strict compliance with the requirements of

Crim.R. 11(C)(2)(c) is required. State v. Veney at ¶ 18. As such, the trial

court was required to advise Appellant of the right to a jury trial, the right to

confront his accusers, the privilege against compulsory self incrimination,

the right to compulsory process to obtain witnesses, and the right to require

the State to prove his guilt beyond a reasonable doubt. Id. The Supreme

Court of Ohio in Veney found that the failure to mention one of these rights

results in the plea being “constitutionally infirm” and thus “presumptively

invalid.” Id. at ¶¶ 26, 29; see, also State v. Pigge, 4th Dist. Ross No.

09CA3136, 2010-Ohio-6541, ¶ 18.
Pickaway App. No. 13CA7                                                         12


      {¶13} Because the trial court failed to advise Appellant that he was

waiving his constitutional rights to confront his accusers, compulsory

process to obtain witnesses, and his privilege against self incrimination,

upon accepting his plea of guilt, Appellant’s plea is constitutionally infirm

and, as a result, presumptively invalid. Thus, Appellant’s first assignment of

error is sustained. Accordingly, Appellant’s plea must be vacated and this

matter is remanded to the trial court for further proceedings consistent with

this opinion.

                  ASSIGNMENTS OF ERROR II AND III

      {¶14} In light of our disposition of Appellant’s first assignment of

error, which vacated Appellant’s plea and remanded this matter to the trial

court for further proceedings, the arguments raised under Appellant’s second

and third assignments of error have been rendered moot. Thus, we do not

address them.

                                                  JUDGMENT VACATED
                                                  AND REMANDED.
Pickaway App. No. 13CA7                                                                     13


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE VACATED AND REMANDED and
Appellant recover costs from Appellee.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Pickaway
County Common Pleas Court to carry this judgment into execution.

         IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.


                                       For the Court,


                               BY: ___________________________________
                                   Matthew W. McFarland, Judge




                                 NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
