[Cite as State v. Maggard, 2011-Ohio-4233.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :        APPEAL NO. C-100788
                                                       TRIAL NO. B-0908256
              Plaintiff-Appellee,             :

        vs.                                   :
                                                           D E C I S I O N.
BRYCE MAGGARD,                                :

              Defendant-Appellant.            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: August 26, 2011



Joseph T. Deters, Prosecuting Attorney, and Judith Anton Lapp, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Elizabeth E. Agar, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                          OHIO FIRST DISTRICT COURT OF APPEALS



FISCHER, Judge.

          {¶1}     The state indicted defendant-appellant Bryce Maggard on six counts of

rape, four counts of kidnapping, and four counts of abduction. After the trial court

denied Maggard’s motion to suppress evidence, Maggard pleaded no contest to all

charges. The state and Maggard did not enter into any “agreement” in consideration

of the no-contest pleas. The trial court merged the abduction and kidnapping counts

for purposes of sentencing, and imposed a 20-year prison term. Maggard now

appeals his convictions.          Because we determine that the trial court failed to

substantially comply with Crim.R. 11 in accepting Maggard’s pleas on the six counts

of rape, we must reverse those convictions. We affirm the kidnapping convictions.

          {¶2}     Maggard raises three assignments of error.       In Maggard’s first

assignment of error, he alleges that the trial court erred in denying his motion to

dismiss counsel. In Maggard’s second assignment of error, he disputes the voluntary

nature of his pleas because, Maggard argues, the trial court failed to inform him that

by pleading no contest to rape he faced a mandatory prison sentence. Finally, in

Maggard’s third assignment of error, he alleges that he received ineffective assistance

of counsel. Because we find merit in Maggard’s second assignment of error, we

address that assignment first.

          {¶3}     Crim.R. 11(C) provides the colloquy that a trial court must engage in

with a defendant before accepting a defendant’s plea of guilty or no contest to a

felony charge.          In a no-contest plea the defendant does not contest the factual

allegations, and leaves the court the duty to determine if those facts constitute a

violation of a criminal statute.1 Pursuant to Crim.R. 11(C)(2)(a), before a court

1   Crim.R. 11(B)(2).

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accepts a plea of guilty or no contest to a felony charge, the court must determine, in

part, “[t]hat 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.”

        {¶4}    R.C. 2929.13(F)(2) requires the trial court to impose a prison term for

a rape offense. Thus, “[w]hen accepting a guilty plea to a rape offense, the court

must determine that the offender is entering his plea voluntarily, with the

understanding that he is not eligible for probation or for the imposition of

community-control sanctions.”2

        {¶5}    The    requirements       listed    in   Crim.R.     11(C)(2)     contain    both

constitutional and nonconstitutional aspects. As to the constitutional aspects, such

as a defendant’s waiver of the right to a jury trial, a trial court must strictly and fully

comply with the rule.3 As to the nonconstitutional aspects, such as a defendant’s

ineligibility for probation or community-control sanctions,4 strict compliance is

strongly preferred, but not required.5 Thus, a defendant’s plea will not be vacated so

long as a trial court has substantially complied with the rule.6                    “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.”7

        {¶6}    As a general matter, a defendant who seeks to vacate a plea on the

grounds that the plea was not made voluntarily must demonstrate prejudice, which

2 State v. Farley, 1st Dist. No. C-0100478, 2002-Ohio-1142.
3 State v. Stewart (1977), 51 Ohio St.2d 86, 88-89, 364 N.E.2d 1163.
4 State v. McQueen, 7th Dist. No. 08 MA 24, 2008-Ohio-6589, ¶49.
5 State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, citing Stewart, supra, at 92-93.
6 Nero, supra, at 108.
7 Id.



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means that the plea would not have otherwise been made.8 But, where a trial court

has failed to substantially comply with a nonconstitutional aspect of Crim.R. 11, a

reviewing court must determine whether the trial court partially complied with the

rule or failed to comply. If the trial court failed to comply, the defendant need not

demonstrate prejudice because “ ‘[a] complete failure to comply with the rule does

not implicate an analysis of prejudice.’ ”9

       {¶7}    In State v. Nero, the trial court failed to inform the defendant that he

was ineligible for probation.10 Nevertheless, the Ohio Supreme Court held that the

trial court substantially complied with Crim.R. 11. The supreme court reached this

conclusion because the record indicated that the defendant knew that he was not

eligible for probation.11 The defendant’s counsel had stated to the trial court that the

defendant knew he would be incarcerated. Moreover, the defendant requested that

the trial court allow him “some time to straighten out [his] affairs.”12

       {¶8}    In State v. Farley, this court stated, “[A] trial court does not

substantially comply with Crim.R. 11(C)(2)(a) when it fails to inform the defendant

that he is not eligible for probation or community control, and the circumstances do

not show that the defendant knew he was not eligible. In such a case, an appellate

court cannot say that the defendant’s plea was made knowingly, intelligently and

voluntarily.”13 We reasoned that, “[b]ecause the prospect of probation or community

control ‘would be a factor weighing heavily in favor of a plea,’ the fact that a


8 Id., citing Stewart, supra, at 1167.
9 State v. Clark (2008), 119 Ohio St.3d 239, 245, 893 N.E.2d 462, 2008-Ohio-3748, ¶32, quoting
State v. Sarkozy (2008), 117 Ohio St.3d 86, 881 N.E.2d 1224, 2008-Ohio-509, ¶22.
10 Nero, supra, at 108.
11 Id.
12 Id.
13 Farley, supra, (internal citations omitted).



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community-control sanction is statutorily precluded can affect a defendant’s decision

to enter a guilty plea.”14 The Farley court vacated not only the defendant’s guilty

plea to rape, but the court also vacated the defendant’s guilty plea to gross sexual

imposition.15     Although Farley is distinguishable because it involved a plea

agreement between the state and the defendant, it is instructive as to Maggard’s

pleas on the rape counts.

        {¶9}    In Maggard’s case, despite a thorough and otherwise properly

completed plea hearing, the trial court engaged in the following colloquy with

Maggard as to the rape charge in count one of the indictment:

        {¶10} “THE COURT: On conviction of that charge you could get a possible

sentence of three, four, five, six, seven, eight, nine, up to ten years hard time. Do you

understand?

        {¶11} “THE DEFENDANT: Yes, sir, I understand.

        {¶12} “THE COURT: And there’s no mandatory prison time in that.”16

        {¶13} Later, the court discussed with Maggard and his counsel the maximum

penalty Maggard could receive as a result of his no-contest pleas. The court stated,

apparently to defense counsel, “Do you understand, sir, that -- none of that time is

mandatory is it?”17 To which defense counsel specifically responded, “No.”18 The

court then continued:

        {¶14} “THE COURT:            Do you understand what I mean by the word

mandatory, sir? Did you ever hear of the people --


14 Id., quoting State v. May (1989), 64 Ohio App.3d 456, 460, 581 N.E.2d 1154, 1156.
15 Id.
16 T.p. 107.
17 T.p. 114.
18 Id.



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        {¶15} “THE DEFENDANT: I know what the word means, meaning that I

have to do it.

        {¶16} “THE COURT: [A]ny of the judges, no matter who the judge is you get

a minimum. That’s mandatory time. This is all discretionary. So it’s up to me

whether you get all of it, none of it, or some of it.”19

        {¶17} The trial court and even Maggard’s own counsel affirmatively told

Maggard that a prison term was not mandatory.                  The record is devoid of any

evidence that Maggard knew he was not eligible for community-control sanctions on

the rape charge. On this record, we cannot hold that the trial court substantially

complied with Crim.R. 11(C)(2) in accepting Maggard’s pleas to rape.20 Therefore,

we must vacate Maggard’s pleas of no-contest on the six rape counts.

        {¶18} As to the remaining kidnapping convictions, we could not locate any

binding precedent requiring this court to vacate the pleas as to those counts,

especially where no plea agreement existed between the state and Maggard, and

where Maggard pleaded no contest to each count in the indictment.

        {¶19} Several lines of cases stand for the proposition that counts in an

indictment are independent of one another. The United States Supreme Court has

held that “although distinct offences [are] charged in separate counts in one

indictment, they nevertheless [retain] their separate character to such an extent that

error or failure as to one [has] no essential influence upon the other.”21 Each count



19 T.p. 115.
20 Cf State v. Barker, Slip Opinion No. 2011-Ohio-4130, ¶20 (holding that the trial court complied
with Crim.R. 11 when its language during a plea colloquy was “a reasonably intelligible
explanation to the defendant of his constitutional right * * * and allowed the defendant to make a
voluntary and intelligent decision whether to plead no contest.”).
21 Selvester v. United States (1898), 170 U.S. 262, 268, 18 S.Ct. 580.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



“is regarded as if it was a separate indictment.”22 The Ohio Supreme Court has

concluded that each count of an indictment charges a complete offense; the separate

counts of an indictment are not interdependent, but are, and necessarily must be,

each complete in and of itself.23

        {¶20} The Ohio Supreme Court also discussed the separate nature of counts

in an indictment when it addressed the application of the “sentence package”

doctrine in Ohio.24       The court rejected the notion that a “sentence” is the

combination of the penalties for all counts. The court reasoned that, under a package

theory, the reversal of a single count would “require the sentencing judge to

reconsider the sentences for every other offense, even if the defendant pleaded guilty

to 100 counts. No purpose can be served by forcing a sentencing judge to revisit

properly imposed, lawful sentences based upon an error in the sentence for a

separate offense.”25

        {¶21} For example, in State v. Farley, the state and Farley had entered into a

plea agreement dismissing two counts and reducing another.26 Because Farley’s

guilty pleas resulted from an agreement, the trial court’s failure to comply with

Crim.R. 11 clearly implicated not only Farley’s guilty plea on the rape count, but the

entire agreement between the parties. No such agreement unifies the counts in

Maggard’s case.

        {¶22} For these reasons, we conclude that in Maggard’s case, where no plea

agreement existed between the state and Maggard, and Maggard pleaded no-contest

22 United States v. Powell (1984), 469 U.S. 57, 62, 105 S.Ct. 471, citing Latham v. The Queen, 5

Best & Smith 635 ,642-643.
23 State v. Lovejoy (1997), 79 Ohio St.3d 440, 446, 1997-Ohio-371, 683 N.E.2d 1112.
24 State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824.
25 Id. at ¶21.
26 Farley, supra.



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to all the charges, errors that inured to only some of the counts do not automatically

result in the reversal of the pleas on all counts, absent some showing that the defect

should be treated more broadly. Therefore, we reverse Maggard’s convictions for

rape because the record does not support the conclusion that the pleas were

knowingly entered. We point out that nothing in the record indicates that Maggard’s

decision to enter no-contest pleas to the other, independent counts in the indictment

was unknowing. The record shows that Maggard was properly informed of the

possible punishment he could receive by pleading no contest to the kidnapping and

abduction charges.

       {¶23} Therefore, we sustain Maggard’s second assignment of error, and we

vacate Maggard’s pleas of no contest as to the rape counts.

       {¶24} In Maggard’s first assignment of error, he argues that the trial court

erred in denying his motion to dismiss trial counsel, which he filed pro se on October

4, 2010. The record reveals that the trial court did not want to grant another

continuance, and thus the trial court affirmatively denied Maggard’s motion on

October 25, 2010—the morning of trial. Maggard claims that the trial court’s denial

of the motion to dismiss counsel violated his Sixth Amendment right to obtain

counsel of his choice.

       {¶25} We review the trial court’s decision to deny a change of counsel in this

instance for an abuse of discretion.27 Thus, we will not overturn that decision unless

it was unreasonable, arbitrary, or unconscionable.28 At the outset, we note that

“[t]he right of an accused to select his own counsel is inherent only in those cases

27 Thurston v. Maxwell (1965), 3 Ohio St.2d 92, 93, 209 N.E.2d 204; see, also, State v. Smith
(Nov. 3, 2000), 1st Dist. No. C-990689.
28 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.



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wherein such accused is employing the counsel himself.”29 Even then, “[a] defendant

has only a presumptive right to employ his own chosen counsel.”30 But, “[t]hat

presumption may be overcome not only by a demonstration of actual conflict but by

a showing of a serious potential for conflict.”31

        {¶26} The record shows this case had been previously set for trial on July 19,

2010.32 The record also reveals that the trial court had warned the parties at that

time that further trial continuances would not be looked upon favorably.33

        {¶27} The record further demonstrates that four different attorneys had

entered appearances for Maggard.           The last two attorneys, who were partners,

entered a joint appearance for Maggard. The attorneys’ partnership, however, ended

before trial, and one co-counsel withdrew from representation with the knowledge of

both Maggard and the trial court. Maggard then filed his pro se motion claiming

that a miscommunication occurred between him and his attorneys, and he wanted

the previously withdrawn co-counsel to replace his current counsel.

        {¶28} After Maggard’s motion was filed, the record demonstrates that

withdrawn counsel indicated that she would not be ready to proceed on the

scheduled trial date of October 25 because she had not participated in the case for

some time. The trial court indicated that another continuance would not be granted,

especially because one of the victims was a United States Marine who had been given

a November deployment date. Thus, the withdrawn counsel indicated that she would




29 Thurston, supra, at 93.
30 State v. Keenan (1998), 81 Ohio St.3d 133, 137, 1998-Ohio-459, 689 N.E.2d 929.
31 Id.
32 T.p. 15.
33 T.p. 19.



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not represent Maggard. Maggard’s current trial counsel was informed days before

trial that he would proceed as counsel.

          {¶29} Following a review of the record, we cannot hold that the trial court

acted unreasonably, arbitrarily, or unconscionably in denying Maggard’s request to

dismiss his trial counsel. Therefore, we overrule Maggard’s first assignment of error.

          {¶30} Finally, in Maggard’s third assignment of error, he argues that he

received ineffective assistance of counsel.            In order to succeed on a claim for

ineffective assistance of trial counsel, a defendant must show that the trial counsel’s

performance was deficient, and that the deficient performance prejudiced the

outcome of the defendant’s case.34 Thus, defendant must show that the outcome of

the proceedings would have been different but for the trial counsel’s errors.35

          {¶31} At least part of Maggard’s ineffective-assistance claim relates to

Maggard’s second assignment of error regarding the voluntariness of his pleas on the

rape charges.        Maggard argues that his counsel erroneously represented on the

record that the rape charges did not carry mandatory prison time, and that this error

by counsel caused him to make an uninformed plea. Because we have vacated

Maggard’s rape convictions, we need not address whether the trial counsel’s error

rose to the level of deficient performance, which caused Maggard prejudice.

          {¶32} Maggard also accused his trial counsel of refusing to return unearned

fees, delaying the return of Maggard’s file after Maggard filed his motion to dismiss

trial counsel, and being unprepared for trial. Maggard argues that trial counsel’s




34   Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052.
35   Id. at 694.

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personal interests conflicted with counsel’s representation of Maggard because

counsel attempted to defend himself against these allegations to the trial court.

       {¶33} We fail to see how Maggard’s unsubstantiated argument that trial

counsel failed to return unearned fees and delayed the return of Maggard’s file

constituted deficient performance.      Maggard’s argument that trial counsel was

unprepared for trial is also unsubstantiated by the record. More importantly, even if

we assume the truth of these allegations, we cannot hold that trial counsel’s personal

interests became so conflicted with that of his client that Maggard was prejudiced

thereby.   Maggard has failed to show how trial counsel’s alleged deficient

performance caused Maggard to enter no-contest pleas on the remaining counts. In

fact, the record reveals that Maggard entered his no-contest pleas after the trial court

denied his motion to suppress, and that Maggard specifically entered his pleas to

preserve his right to appeal. Maggard’s third assignment of error is overruled.

       {¶34} In conclusion, we vacate Maggard’s no-contest pleas as to the rape

counts, and we reverse the judgment of the trial court with regard to the rape

convictions. Because we have reversed Maggard’s rape convictions, his classification

as a Tier III sex offender is no longer proper. Therefore, we vacate Maggard’s sex-

offender classification, and we instruct the trial court on remand to reclassify

Maggard.

       {¶35} Finally, we note that the transcript of the sentencing hearing reveals

that the trial court sentenced Maggard to ten years’ incarceration on both count one

and count seven. The terms for each of those counts were ordered to be served

consecutively. The trial court ordered Maggard to serve counts two, three, and four

concurrently with count one. The trial court then ordered counts eight, nine, ten, 11,

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and 12 to be served concurrently with count seven. Counts five, six, 13, and 14 were

merged with other counts.       The judgment entry does not reflect the sentence

imposed by the trial court at the hearing. On remand, we instruct the trial court to

amend its entry nunc pro tunc to correct clerical errors in the judgment entry.

                      Judgment affirmed in part, reversed in part and cause remanded.

DINKELACKER, P.J., and HILDEBRANDT, J., concur.


Please Note:
       The court has recorded its own entry on the date of the release of this opinion.




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