[Cite as State v. Morgan, 2014-Ohio-654.]
                               STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )              CASE NO. 13 MA 80
V.                                              )
                                                )                    OPINION
LEROY MORGAN,                                   )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Youngstown
                                                Municipal Court of Mahoning County,
                                                Ohio
                                                Case No. 13CRB115

JUDGMENT:                                       Reversed and Remanded
                                                Appellant’s Plea and Conviction Vacated
APPEARANCES:
For Plaintiff-Appellee                          Kathleen Thompson
                                                Assistant Prosecutor
                                                26 S. Phelps Street, 4th Floor
                                                Youngstown, Ohio 44503

For Defendant-Appellant                         Attorney Thomas M. Lyden
                                                860 Boardman-Canfield Road
                                                Suite #204
                                                Youngstown, Ohio 44512




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
                           -2-


Dated: February 21, 2014
[Cite as State v. Morgan, 2014-Ohio-654.]
DONOFRIO, J.

        {¶1}    Defendant-appellant, Leroy Morgan, appeals from a Youngstown
Municipal Court judgment convicting him of violating a Youngstown City Ordinance
that prohibits the unauthorized removal of scrap material, following his no contest
plea.
        {¶2}    On January 16, 2013, appellant was charged with the unauthorized
removal of scrap from a vacant house in violation of Youngstown City Ordinance
545.23, an unclassified misdemeanor.
        {¶3}    Appellant initially entered a not guilty plea. The court appointed him
counsel.
        {¶4}    Appellant later changed his plea to no contest pursuant to a plea
agreement and the matter was set for sentencing.             The trial court sentenced
appellant to 150 days in jail, a $500 fine, and 18 months of probation.
        {¶5}    Appellant filed a timely notice of appeal on May 16, 2013. The trial
court stayed appellant’s sentence pending this appeal.
        {¶6}    Appellant raises a single assignment of error that states:

                THE TRIAL COURT ERRED IN ACCEPTING A NO CONTEST
        PLEA WITHOUT ADDRESSING DEFENDANT PERSONALLY TO
        DETERMINE THE VOLUNTARINESS OF THE PLEA AND WHETHER
        OR NOT DEFENDANT UNDERSTOOD THE NATURE OF THE
        CHARGE AND THE CONSEQUENCES OF THE PLEA.

        {¶7}    Appellant states that because he had a prior conviction, the charge he
faced carried the potential sentence of up to one year in jail. He claims the trial court
failed to properly inform him of the implications of his plea. In fact, he claims the
court failed to address him at all before accepting his plea. Appellant further asserts
nothing in the record demonstrates that he understood the implications of his plea.
He argues that the plea form did not contain a description of the effect of his plea and
only contained misleading information regarding his possible punishment. Appellant
states that had he understood the implications of his no contest plea, he would not
                                                                               -2-


have entered the plea.
        {¶8}    Depending on the offense, Crim.R. 11 governs what information the trial
court must inform a criminal defendant of. Misdemeanor cases involving “serious
offenses” are governed by Crim.R. 11(D).         Misdemeanor cases involving “petty
offenses” are governed by Crim.R. 11(E).           A “serious offense” includes any
misdemeanor for which the penalty includes confinement for more than six months.
Crim.2(C). A “petty offense” is a misdemeanor other than serious offense. Crim.R.
2(D).
        {¶9}    Appellant pleaded no contest to unauthorized removal, an unclassified
misdemeanor.        The penalties as prescribed by Youngstown City Ordinance
545.23(e)(1) and (2) are:

                (1) Except as otherwise provided, unauthorized removal is a
        misdemeanor of the first degree. The court shall impose a mandatory
        fine of two hundred dollars ($200.00).
                (2) If the offender has previously been convicted of unauthorized
        removal or any theft or theft-related offense, unauthorized removal is an
        unspecified misdemeanor.        The court may impose a term of
        incarceration of up to one year and may impose a fine of up to two
        thousand five hundred dollars ($2,500).      The court shall impose a
        mandatory minimum fee of five hundred dollars ($500.00) and shall
        impose a mandatory minimum term of incarceration of ten consecutive
        days.

        {¶10} Because appellant had a previous conviction for unauthorized removal,
his charge was for an unclassified misdemeanor.         The ordinance makes clear
that if the offender has a previous conviction for unauthorized removal, the offense is
an unclassified misdemeanor, as opposed to a first-degree misdemeanor.
        {¶11} “An unclassified misdemeanor is an offense which is not specifically
labeled and for which a penalty of incarceration not exceeding one year may be
                                                                              -3-


imposed.” State v. Williams, 7th Dist. No. 01 CA 221, 2002-Ohio-5022, ¶ 16, citing
R.C. 2901.02(F).     In contrast, the maximum jail sentence for a first-degree
misdemeanor is 180 days. R.C. 2929.24(A)(1).
      {¶12} In this case, because he was charged with an unclassified
misdemeanor for which the possible jail time was up to one year, appellant was
charged with a “serious offense.” Because appellant was charged with a serious
offense, Crim.R. 11(D) governed his case.
      {¶13} Crim.R. 11(D) provides in pertinent part:

             In misdemeanor cases involving serious offenses the court may
      refuse to accept a plea of guilty or no contest, and shall not accept such
      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.

(Emphasis added.)
      {¶14} While strict adherence to Crim.R. 11 is preferred, a trial court need only
substantially comply with its requirements as long as the record reflects that under
the totality of the circumstances, the defendant knowingly, intelligently, and
voluntarily entered his plea by subjectively understanding the effect of the plea and
his rights waived. State v. Bailes, 7th Dist. No. 01-CA-224, 2002-Ohio-5217, ¶10. A
meaningful dialogue between the trial court and the defendant is required in
misdemeanor cases where jail time is possible. Id. See also, State v. Clark, 11th
Dist. No. 2011-Ohio-090, 2012-Ohio-3889, ¶16.
      {¶15} The plea hearing was held before a magistrate who simply asked
appellant’s counsel for confirmation that appellant had some prior convictions and,
therefore, the present offense was not being treated as a first offense of unauthorized
removal. (Tr. 3). Counsel confirmed this for the magistrate. (Tr. 3). The magistrate
then stated that the court accepted the change of plea and the matter would be set
for sentencing. (Tr. 3). The magistrate never once addressed appellant.
                                                                               -4-


       {¶16} In this case there was no dialogue, let alone a meaningful dialogue,
between the court and appellant before the court accepted his plea. The court never
addressed appellant and appellant never spoke. The court never informed appellant
of the effect of his plea. And the court never took the opportunity to determine
whether appellant was entering his plea voluntarily. Thus, there is no indication that
the court complied in any way with Crim.R. 11(D).
       {¶17} Moreover, the plea agreement signed by appellant was misleading
regarding the potential sentence appellant faced.
       {¶18} The plea agreement provides that appellant is entering a no contest
plea to one count of unauthorized removal pursuant to 545.23(a).         Next to the
offense, the plea form then lists “misdemeanor 1 2 3 4 Unclass MM.” “Unclass” is
circled on the form.
       {¶19} The plea agreement next provides:

I further understand that said offenses are punishable pursuant to ORC 2929.24,
29292.28 as follows:
Classification                    Maximum Confinement               Maximum      Fine


Misdemeanor 1 (M1)                180 days                          $1000.00
Misdemeanor 2 (M2)                90 days                           $750.00
Misdemeanor 3 (M3)                60 days                           $500.00
Misdemeanor 4 (M4)                30 days                           $250.00
Minor Misdemeanor (MM)            None                              $150.00
Unclassified Misdemeanor (DUS) 500 hours community service          $1000.00

       {¶20} The plea form then states that appellant could be subject to additional
sanctions deemed appropriate by the court.
       {¶21} The plea form goes on to state that appellant’s counsel has advised him
and he fully understands the nature of the charge against him and he is satisfied with
his counsel. The form also represents to the court that appellant is entering his plea
                                                                                -5-


freely and voluntarily. The form is signed by appellant, his counsel, the prosecutor,
and the magistrate.
       {¶22} Assuming appellant read the plea form, which he indicated he did by
signing it, he would be under the mistaken belief that he was subject to a maximum
penalty of 500 hours of community service and a $1,000 fine.           Instead, he was
actually subject to up to one year in jail. This error might be harmless if the court had
sentenced appellant to only community service or if the court had otherwise
addressed appellant before accepting his plea and discussed this with him.
However, the court never addressed appellant in accepting his plea. And the court
later sentenced appellant to 150 days in jail.
       {¶23} Based on the record before us, under the totality of the circumstances,
there is no evidence that the trial court substantially complied with Crim.R. 11(D).
Accordingly, appellant’s sole assignment of error has merit.
       {¶24} For the reasons stated above, the trial court’s judgment is hereby
reversed. Appellant’s plea and conviction are vacated and the matter is remanded to
the trial court for further proceedings according to law and consistent with this Court’s
opinion.

Waite, J., concurs.

DeGenaro, P.J., concurs.
