[Cite as State v. Stump, 2016-Ohio-2723.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103109



                                      STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.


                                     DYLAN C. STUMP
                                                  DEFENDANT-APPELLANT




                                   JUDGMENT:
                              VACATED AND REMANDED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-15-592564-A and CR-15-592569-A

        BEFORE: Kilbane, P.J., Boyle, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                 April 28, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Joan Bascone
Anthony Thomas Miranda
Frank Romeo Zeleznikar
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, Dylan C. Stump, a.k.a. Dylan Harrison (“Stump”),

appeals from his fifth-degree-felony domestic violence convictions resulting from his

guilty plea in two different cases. At appellate oral argument, the state of Ohio conceded

that Stump’s domestic violence convictions are first-degree misdemeanors and not

fifth-degree felonies. As a result, we vacate Stump’s guilty plea and sentence in both

cases and remand for further proceedings.

       {¶2} In Case No. CR-15-592564-A, Stump was charged with felonious assault,

with a pregnant victim specification, and domestic violence, with a furthermore clause

that Stump knew the victim was pregnant at the time of the offense.                    In

CR-15-592569-A, Stump was charged with domestic violence, with a pregnant victim

specification. The charges arise from the physical altercations between Stump and his

pregnant girlfriend on August 27 and August 28, 2014.

       {¶3} Pursuant to a plea agreement, Stump pled guilty to amended counts of

domestic violence in both cases. In Case No. CR-15-592564-A, the felonious assault

count was amended to domestic violence and the pregnant victim specification was

deleted.   The remaining domestic violence count was nolled.               In Case No.

CR-15-592569-A, the domestic violence count was amended by the deletion of the

pregnant victim specification.   The trial court referred the matter for a presentence

investigation report prior to sentencing.    At the sentencing hearing, the trial court
sentenced Stump to 11 months in prison in each case, to be served consecutively, for a

total of 22 months in prison.

       {¶4} Stump now appeals, raising the following three assignments of error for

review.

                                 Assignment of Error One

       The trial court erred when it failed to advise [Stump] at the time of his plea
       that he was not eligible for community control sanctions and that he was
       facing a mandatory term of imprisonment by pleading guilty.

                                Assignment of Error Two

       Trial counsel was ineffective when counsel did not advise [Stump] that he
       faced a mandatory prison sentence, and then argued for a sentence that was
       less than the minimum sentence that could have been imposed by law.

                                Assignment of Error Three

       The trial court erred when it imposed consecutive terms of imprisonment
       without making the statutorily required findings.

                                        Guilty Plea

       {¶5} In the first assignment of error, Stump challenges his guilty plea, claiming

the court did not advise him that he was facing a mandatory prison term and defense

counsel was ineffective for not advising him that he was ineligible for community control

sanctions and for requesting community control sanctions as his sentence.

       {¶6} The underlying purpose of Crim.R. 11(C) is to convey certain information

to a defendant so that he or she can make a voluntary and intelligent decision regarding

whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115

(1981).   “The standard for reviewing whether the trial court accepted a plea in
compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell, 8th

Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51 Ohio St.2d

86, 364 N.E.2d 1163 (1977). A de novo standard of review “requires an appellate court

to review the totality of the circumstances and determine whether the plea hearing was in

compliance with Crim.R. 11(C).” Id.

       {¶7} In the matter before us, Stump was initially charged in Case

No. CR-15-592564-A with felonious assault, with a pregnant victim specification, and

domestic violence, with a furthermore clause that Stump knew the victim was pregnant at

the time of the offense. In Case No. CR-15-592569, Stump was charged with domestic

violence, with a pregnant victim specification. Both domestic violence counts were

charged as fifth-degree felonies.

       {¶8} In Case No. CR-15-592564-A, Stump pled guilty to domestic violence,

instead of felonious assault, with the deletion of the pregnant victim specification, and the

remaining domestic violence count was nolled. In Case No. CR-15-592569-A, he pled

guilty to an amended count of domestic violence with the deletion of the pregnant victim

specification. Both domestic violence counts were in violation of R.C. 2919.25(A),

which provides that “[n]o person shall knowingly cause or attempt to cause physical harm

to a family or household member.”

       {¶9} Stump notes that the only form of fifth-degree felony domestic violence is

when the defendant is aware that the victim is pregnant as set forth in R.C.

2919.25(D)(5). This section provides that “if the offender knew that the victim of the
violation was pregnant at the time of the violation, a violation of division (A) * * * of this

section is a felony of the fifth degree, and the court shall impose a mandatory prison term

on the offender pursuant to division (D)(6) of this section[.]”    Id. R.C. 2919.25(D)(6)

provides that a violation pursuant to R.C. 2919.25(D)(5) requires the court to “impose a

mandatory prison term on the offender of at least six months.” Consequently, Stump

argues his plea was not knowingly, voluntarily, and intelligently made because he was

under the misapprehension that he is eligible for community control sanction when, in

fact, he is required to serve a mandatory term of six months of imprisonment on each

count for fifth-degree felony domestic violence.

       {¶10} However, when the pregnancy specification was deleted from both domestic

violence counts in violation of R.C. 2919.25(A), Stump actually pled guilty to a

first-degree misdemeanor as set forth in R.C. 2919.25(D)(2). As previously noted, the

state conceded this at oral argument.     R.C. 2919.25(D)(2) provides that “a violation of

division (A) * * * of this section is a misdemeanor of the first degree.” Id. Under R.C.

2929.24(A)(1), the trial court cannot impose a jail term of more than 180 days for

first-degree misdemeanors.

       {¶11} Throughout the plea hearing and sentencing, the trial court, the state, and

defense counsel repeatedly and incorrectly referred to both counts as fifth-degree felonies,

instead of first-degree misdemeanors. Both the prosecutor and defense counsel advised

the court at the plea hearing that the charges as amended were fifth-degree felonies.

During the plea colloquy, the trial court stated:
COURT: Based upon the statements of the prosecuting attorney and your
lawyer, I believe it is your intention to plead guilty in each of your cases to
amended indictments.

In case number 592564, it’s my understanding that you’ll plead guilty to
amended Count 1, to domestic violence, in violation of 2919.25(A), a
felony of the fifth degree. Is that your understanding?

[STUMP]: Yes, ma’am.

COURT: And in case number 592569, it’s my understanding that you’ll
plead guilty to Count 1, domestic violence, deleting the pregnant victim
specification.

[STUMP]: Yes, ma’am.

COURT:      And that’s in violation of 2919.25(A), a felony of the fifth
degree.

And that pregnant victim specification is deleted in case number 592564, as
well. Right?

[STUMP]: Yes, ma’am.
COURT: Do you understand that felonies of the fifth degree carry with
them, maximum penalty of anywhere from six to twelve months in monthly
increments and a fine of up to $2,500?

[STUMP]: Yes, ma’am.

COURT: Since you’re pleading guilty to two separate cases, do you
understand that if you are sent to prison your sentence could be run
concurrently, where your sentence would be served at the same time, or
consecutively? So that means if it’s consecutive, your maximum prison
sentence could be two years. Do you understand?

[STUMP]: Yes, ma’am.

***

COURT: You could also be placed under a community control sentence
for up to five years. If you violate the terms of the sentence you could
receive a more restrictive sentence, including prison time.
      [STUMP]: Yes ma’am.

      {¶12} After the court accepted Stump’s guilty pleas, defense counsel requested

that Stump be referred for a presentence investigation report and be placed on a personal

bond. Defense counsel stated:

      [DEFENSE COUNSEL]: I know if you do give [Stump a personal bond],
      Your Honor, he would be out probably four or five weeks. And I think at
      sentencing that would be a great opportunity for him to prove to the court
      that he would ultimately be a suitable candidate for community control
      sanctions.

      {¶13} Then at sentencing, defense counsel asked the court to sentence Stump to

community control sanction. He stated:

      [DEFENSE COUNSEL]: I would ask this Court to consider him a
      candidate for Community Controlled Sanctions. If he’s granted that
      privilege, he certainly would be well aware there would be a No Contact
      Order that he can’t have any contact with the victim here.
      He needs to become a productive member of society, and he would be able
      to live with his father if he’s released. So we’re asking the Court to grant
      him the privilege of Community Controlled Sanctions, so that he could
      show the Court what I think most importantly, one, that he needs to show
      that he can be a productive member of society; and two, that he can do it
      himself.

      And I think he’s locked in, at this point, and he’s desirous of showing
      himself that he can ask the Court to give him that opportunity. Thank you.

      {¶14} It is clear from the guilty plea hearing that Stump pled guilty to amended

charges of domestic violence, without the pregnant victim specification, in violation of

R.C. 2919.25(A).      As amended, the offenses Stump pled to are first-degree

misdemeanors, yet when accepting his plea the court found him guilty of a greater offense

than what he admitted to committing.   He was convicted of fifth-degree felony domestic
violence even though the pregnancy specifications were deleted from both offenses.

The deletion of this specification rendered each offense a first-degree misdemeanor.

       {¶15} A “‘universally recognized requirement of due process’” is the requirement

that the defendant receive “‘real notice of the true nature of the charge against him.’”

Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), quoting

Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941). If a defendant

does not have notice of the correct charge against him, then his due process rights are

violated. Id. “A violation of a defendant’s due process rights is per se prejudicial, as it

is a constitutional right.”      State v. Davis, 4th Dist. Highland No. 06CA21,

2007-Ohio-3944, ¶ 34.      Moreover, a “‘failure to comply with the requirements of

Crim.R. 11 is plain error.”’      State v. Johnson, 8th Dist. Cuyahoga No. 91884,

2009-Ohio-2268, ¶ 11, quoting State v. Hlinovsky, 7th Dist. Belmont No. 99 BA 65,

2001-Ohio-3247.

       {¶16} Because the guilty plea proceedings do not support any inference that Stump

pled guilty to a first-degree misdemeanor with a maximum of 180 days of imprisonment

on each count and Stump was, in fact, sentenced to 22 months in prison (which is

contrary to law as it is outside the permissible statutory range for first-degree

misdemeanors), we find that his guilty plea is invalid. Under the facts of this case,

where the misstatements permeated the plea proceedings, Stump could not have

knowingly, intelligently, and voluntarily pled guilty to first-degree misdemeanor domestic

violence.
       {¶17} Accordingly, the trial court’s error constitutes plain error and the first

assignment of error is sustained.

                     Ineffective Assistance of Counsel and Sentence

       {¶18} In the second assignment of error, Stump argues counsel was ineffective for

failing to advise that he faced a mandatory prison sentence and for requesting community

control sanction. In the third assignment of error, he argues that the trial court erred

when it imposed consecutive sentences without making the statutorily required findings.

However, our disposition of the first assignment of error renders these remaining

assignments of error as moot and they need not be addressed. App.R. 12(A)(1)(c).

       {¶19} Therefore, Stump’s guilty plea and sentence is vacated in both Case Nos.

CR-15-592564-A and CR-15-592569-A.              The matters are remanded for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE
MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR
