[Cite as State v. Jones, 2014-Ohio-5574.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :
        Plaintiff-Appellee                        :   Appellate Case No. 25688
                                                  :
v.                                                :   Trial Court Case No. 2012-CR-851
                                                  :
KEVIN L. JONES                                    :   (Criminal Appeal from
                                                  :   Common Pleas Court)
        Defendant-Appellant                       :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 19th day of December, 2014.

                                             ...........

MATHIA H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, 301 West Third Street, Dayton, Ohio 45422      Attorney         for
Plaintiff-Appellee

MONTE K. SNYDER, Atty. Reg. No. 005213, 6501 Germantown Road, Lot 41, Middletown,
Ohio 45042
      Attorney for Defendant-Appellant

                                            .............
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WELBAUM, J.

       {¶ 1} Defendant-appellant, Kevin L. Jones, appeals from his conviction and sentence in the

Montgomery County Court of Common Pleas after pleading no-contest to one count of trafficking

marijuana.    Jones claims his no-contest plea was not made knowingly, intelligently, and

voluntarily, because the trial court failed to inform him of the effect of his plea. We agree, and for

the reasons outlined below, Jones’s plea will be vacated, the judgment of the trial court will be

reversed, and the case will be remanded for further proceedings consistent with this opinion.

       {¶ 2} On April 24, 2012, Jones was indicted for one count of trafficking marijuana in

violation of R.C. 2925.03(A)(2), a felony of the fifth degree. Thereafter, on January 23, 2013,

Jones pled no contest as charged in the indictment and was subsequently sentenced to community

control sanctions. Jones appealed from his conviction and sentence on March 21, 2013, and was

appointed appellate counsel.

       {¶ 3} On November 7, 2013, Jones’s appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We rejected the Anders brief on

April 25, 2014, finding that there was a potential assignment of error having arguable merit

concerning Jones’s no-contest plea. Specifically, we found that the trial court did not inform

Jones of the meaning of his no-contest plea as required by Crim.R. 11(C)(2)(b) and Crim.R.

11(B)(2). See Decision and Entry (April 25, 2014), Appellate Case No. 25688.

       {¶ 4} Following the rejection of his Anders brief, Jones was appointed new appellate

counsel who, on August 5, 2014, filed a subsequent appellate brief on Jones’s behalf. The sole

assignment of error in that brief is as follows:

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT IN
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       NOT ORALLY AND PERSONALLY EXPLAINING THE MEANING AND

       EFFECT OF A NO[-]CONTEST PLEA UNDER CRIMINAL RULE 11(B)(2) AS

       REQUIRED BY CRIMINAL RULE 11(C)(2)(b).

       {¶ 5} In his single assignment of error, Jones contends his no-contest plea should be

vacated because it was not knowingly, intelligently, and voluntarily made. Specifically, Jones

claims the trial court erred in failing to advise him of the effect of pleading no contest before

accepting his plea as required by Crim.R. 11(C)(2)(b) and Crim.R. 11(B)(2). Under the facts and

circumstances of this case, we agree.

       {¶ 6} “An appellate court must determine whether the record affirmatively demonstrates

that a defendant’s plea was knowing, intelligent, and voluntary[.]” State v. Russell, 2d Dist.

Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama, 395 U.S. 238, 243, 89

S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a defendant’s plea is not knowing, intelligent, and

voluntary, it “has been obtained in violation of due process and is void.” Id. “In order for a plea

to be given knowingly and voluntarily, the trial court must follow the mandates of Crim. R.

11(C).” State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 13.

       {¶ 7} “Pursuant to Crim.R. 11[C], felony defendants are entitled to be informed of various

constitutional and nonconstitutional rights, prior to entering a plea.” State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 6. Among the nonconstitutional rights, Crim.R.

11(C)(2)(b) requires the trial court to inform the defendant of the effect of his guilty or no-contest

plea and to determine whether he understands that effect. State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677, ¶ 12; Griggs at ¶10-12. “[A] court may not accept a no contest

plea without first determining that the defendant understands the effect of the plea.” State v.

Evans, 2d Dist. Montgomery No. 21669, 2007-Ohio-6587, ¶ 9, citing Crim.R. 11(C)(2)(b).
                                                                                                     -4-
       {¶ 8} To satisfy the effect-of-plea requirement under Crim.R. 11(C)(2)(b), a trial court

must inform the defendant, either orally or in writing, of the appropriate language in Crim.R.

11(B). Jones at ¶ 25 and ¶ 51. “[F]or a no contest plea, a defendant must be informed that the

plea of no contest is not an admission of guilt but is an admission of the truth of the facts alleged in

the complaint, and that the plea or admission shall not be used against the defendant in any

subsequent civil or criminal proceeding.” Id. at ¶ 23, citing Crim. R. 11(B)(2). (Other citation

omitted.)

       {¶ 9} Because the right to be informed of the effect of a no contest plea is

nonconstitutional, it is subject to review under a standard of substantial compliance. Griggs at ¶

12, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).                    Under the

substantial-compliance standard, we review the totality of circumstances surrounding the plea and

determine whether the defendant subjectively understood the effect of his plea. Id.

       {¶ 10} Generally, the “failure to comply with nonconstitutional rights [such as the

information in Crim.R. 11(B)(2)] will not invalidate a plea unless the defendant thereby suffered

prejudice.” (Citation omitted.) Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51 at ¶

12. “The test for prejudice is ‘whether the plea would have otherwise been made.’ ” Id., quoting

Nero at 108. However, in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,

the Supreme Court of Ohio further explained that:

       When the trial judge does not substantially comply with Crim.R. 11 in regard to a

       nonconstitutional right, reviewing courts must determine whether the trial court

       partially complied or failed to comply with the rule. If the trial judge partially

       complied, e.g., by mentioning mandatory postrelease control without explaining it,

       the plea may be vacated only if the defendant demonstrates a prejudicial effect. * *
                                                                                                 -5-
       * If the trial judge completely failed to comply with the rule, e.g., by not informing

       the defendant of a mandatory period of postrelease control, the plea must be

       vacated. * * * “A complete failure to comply with the rule does not implicate an

       analysis of prejudice.”

(Emphasis sic.) Clark at ¶ 32, quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881

N.E.2d 1224, ¶ 22.

       {¶ 11} Therefore, if the trial court completely fails to comply with the effect-of-plea

requirement in Crim.R. 11(C)(2)(b), prejudice does not need to be demonstrated. A complete

failure occurs when the record is devoid of any explanation of the no-contest plea. See E.

Cleveland v. Zapo, 8th Dist. Cuyahoga No. 96718, 2011-Ohio-6757, ¶ 10 (finding the trial court

completely failed to comply with the effect-of-plea requirement because the record was devoid of

any explanation of the no-contest plea thus rendering the prejudice analysis unnecessary); State v.

Ramey, 7th Dist. Mahoning No. 13 MA 64, 2014-Ohio-2345, ¶ 16 (stating that a complete failure

to comply with the effect-of-plea requirement is akin to the trial court merely asking the defendant

what his plea was and not attempting to inform the defendant of the effect of the plea). Compare

State v. Durkin, 7th Dist. Mahoning No. 13 MA 36, 2014-Ohio-2247, ¶ 18 (finding there was not a

complete failure to comply with the effect-of-plea requirement, but only a partial failure because

the trial court attempted to advise defendant of the effect of the no-contest plea).

       {¶ 12} In this case, the record establishes the trial court completely failed to comply with

the effect-of-plea requirement in Crim.R. 11(C)(2)(b). At no point during the sentencing hearing

did the trial court inform or attempt to inform Jones of the language from Crim.R. 11(B)(2), i.e.,

that a plea of no contest is not an admission of guilt, but an admission of the facts alleged in the

complaint, and that the plea shall not be used against him in any subsequent civil or criminal
                                                                                                    -6-
proceeding.

        {¶ 13} The plea form read and signed by Jones at the plea hearing also did not contain the

language from Crim. R. 11(B)(2). While the plea form stated: “The Court also informed me and I

understand the effect of my plea(s)* * *,” nothing in the record supports this statement, as the

record fails to establish the trial court actually informed Jones of the effect of his no-contest plea.

        {¶ 14} The State concedes the trial court did not inform Jones of the effect of his no-contest

plea, but nevertheless claims the record indicates Jones subjectively understood said effect.

According to the State, there was subjective understanding because the trial court explained the

maximum potential sentence Jones could receive and otherwise explained the rights he was

waiving upon entering his plea. We disagree with this contention, as the Supreme Court of Ohio

has held that the effect-of-plea requirement cannot be met simply by informing the defendant of

the maximum sentence and the right to a jury trial.              See Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677 at ¶ 22. Rather, the Supreme Court specifically stated that “a

statement about the effect of a plea is separate from statements relating to a maximum penalty and

the right to jury trial.” Id.

        {¶ 15} Given that the trial court completely failed to inform Jones of the effect of his no

contest plea as required by Crim.R. 11(C)(2)(b) and Crim.R. 11(B)(2), a prejudice analysis is

unnecessary and said failure renders his plea invalid. Therefore, Jones’s sole assignment of error

is sustained. Having sustained his assignment of error, Jones’s plea is vacated, the judgment of

the trial court is reversed, and the matter is remanded to the trial court for further proceedings

consistent with this opinion.

                                           .............
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FAIN, J. and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michele D. Phipps
Monte K. Snyder
Hon. Barbara P. Gorman
