[Cite as State v. Marshall, 2015-Ohio-3189.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


 State of Ohio                                     Court of Appeals No. L-14-1135

        Appellee                                   Trial Court No. CR0201401001

v.

Charles Marshall                                   DECISION AND JUDGMENT

        Appellant                                  Decided: August 7, 2015

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brad Smith, Assistant Prosecuting Attorney, for appellee.

        Mollie B. Hojnicki, for appellant.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Charles Marshall, appeals the May 30, 2014 judgment of the

Lucas County Court of Common Pleas which, following his guilty plea to having a

weapon while under a disability, sentenced him to the maximum of 36 months of

imprisonment. Because we find that his plea was knowing and voluntary, we affirm.
       {¶ 2} Appellant was indicted on January 2, 2014, on one count of having a weapon

while under a disability, R.C. 2923.13(A)(3), a third degree felony, and one count of

carrying a concealed weapon, R.C. 2923.12(A)(2) and (F), a fourth degree felony.

Appellant was appointed counsel and entered not guilty pleas to the charges.

       {¶ 3} On March 31, 2014, following mutual agreement, appellant’s counsel

withdrew and on April 4, 2014, new counsel was appointed. Thereafter, on May 6, 2014,

appellant withdrew his not guilty pleas and entered a guilty plea to having a weapon

while under a disability. Pursuant to an agreement with the state, the remaining charge

was dismissed and the state agreed to recommend a 24-month sentence.

       {¶ 4} On May 30, 2014, appellant was sentenced to the maximum sentence of 36

months in prison. Appellant timely appealed and raises the following assignment of error:

              First Assignment of Error: The trial court erred in accepting

       appellant’s guilty plea when the plea was not entered into knowingly,

       intelligently and voluntarily.

       {¶ 5} In appellant’s sole assignment of error, he contends that his plea was not

knowing and voluntary because he did not understand the maximum potential penalty

that he faced. Before accepting a plea of guilty, Crim.R. 11(C)(2) requires that the trial

court inform a defendant of the constitutional rights he waives by entering the plea. State

v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Relevant to the issue before us,

Crim.R. 11(C)(2) provides, in part:




2.
                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.

       {¶ 6} Upon appellate review, the trial court’s acceptance of a guilty plea will be

considered knowing, intelligent and voluntary so long as, before accepting the plea, the

trial court substantially complies with the procedure set forth in Crim.R. 11(C). Nero at

108. “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.” Id.

       {¶ 7} At appellant’s May 5, 2014 plea hearing, the court informed appellant that

the maximum sentence he faced was 36 months in prison and a $10,000 fine. When

asked if appellant was satisfied with his counsel’s advice and competence he responded:

                THE DEFENDANT: It’s just like everything been rush-rush, ain’t

       been no – I mean, I don’t feel like either attorney has been looking at my

       case or different things like that, but.




3.
             THE COURT: Well, are you suggesting to the Court when you say

      that you don’t believe that you really want to enter a plea to this court?

             THE DEFENDANT: I’ll enter plea. I have no problem with it.

      ***

             THE COURT: Well, I don’t know that I’m going to let you. * * *

      Cause I’ll only accept the plea knowing that’s a voluntary, complete waiver

      of your rights, and that you’ve been fully advised of your rights that you’re

      giving up and the consequences of entering the plea. That’s what I told you

      at the beginning of this. Do you understand that?

             THE DEFENDANT: Yes.

The hearing continued and the following exchange took place.

             THE COURT: * * * State’s recommending that I consider a 24

      month cap. You know I could impose a prison term of up to 36 months.

      State’s recommending a 24 month cap. You know, cause I know your

      lawyer told you, that that’s not binding on this court.

             THE DEFENDANT: See, I didn’t know that wasn’t binding. I

      thought that was a binding plea.

             THE COURT: You can ask the Court to impose a 24 month

      sentence. We can do that. That’s a different animal. * * * That’s called an

      agreed upon sentence. * * * Are you suggesting that you’re willing to

      accept the sentence of 24 months?




4.
             THE DEFENDANT: No, I just thought it was just – I thought the

     plea meant binding plea of 24 months or less.

             THE COURT: You do not tie my hands unless you ask me to accept

     a specific period of incarceration. He told you that. You know he told you

     that.

             THE DEFENDANT: No, he told me that 24 months or less that’s

     what I was told.

             THE COURT: Is what the State is recommending.

             THE DEFENDANT: See, I didn’t know that was a

     recommendation.

             THE COURT: Well now you do. Are you telling me you don’t

     want to enter this plea now?

             THE DEFENDANT: I’ll enter the plea, but that wasn’t what was

     told to me that it was a recommendation.

             ***

             MR. HUBBELL:           I made it clear to the defendant that this was a

     recommendation. We went over the plea agreement. We discussed it last

     week. He was aware of the fact that this was a recommendation, the Court

     could impose up to 36 months. And the Court is correct, I indicated to him

     that it would be my conduct would [sic] be to persuade the Court that a

     sentence less than 36 – 24 months would be appropriate.




5.
              THE COURT: Mr. Marshall, you have to tell me whether or not you

       want to proceed with this plea.

              THE DEFENDANT: Yes.

              THE COURT: Knowing that there’s no guarantee you’ll be

       sentenced to 24 months; correct?

              THE DEFENDANT: Yes.

       {¶ 8} This court has repeatedly held that a trial court is not bound to follow the

state’s sentencing recommendations. See State v. Summers, 6th Dist. Lucas No.

L-08-1055, 2009-Ohio-2280, ¶ 24-25, citing State v. Jones, 6th Dist. Wood No.

WD-06-082, 2007-Ohio-4090; State v. Walker, 6th Dist. Lucas No. L-98-1210, 1999 WL

278120 (May 7, 1999). As set forth above, at the plea hearing appellant was informed

that he could receive the maximum 36-month sentence. After some confusion, appellant

agreed that the court would not be bound by the state’s sentencing recommendations and

he entered a guilty plea. Appellant’s attorney further informed the court that appellant

was notified that the court was not bound by the state’s recommendations. At sentencing,

the trial court specifically stated the reasons for imposing the maximum sentence which

included the fact that appellant had previously served a prison term and committed the

offense while on community control.

       {¶ 9} Based on the foregoing, we find that the trial court substantially complied

with Crim.R. 11(C), and that appellant subjectively understood the possibility of a




6.
sentence greater than the state’s recommendation prior to entering his guilty plea.

Accordingly, appellant’s assignment of error is not well-taken.

       {¶ 10} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Lucas County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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