[Cite as State v. Williams, 2014-Ohio-701.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99901


                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                               MANUELLE WILLIAMS

                                                              DEFENDANT-APPELLANT



                               JUDGMENT:
                    AFFIRMED IN PART, REVERSED IN PART
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-567181

        BEFORE:           Jones, J., Boyle, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: February 27, 2014
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Bldg.
Suite 1016
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Manuelle Williams, appeals his conviction and sentence

rendered after he pleaded guilty to attempted murder and felonious assault.   We affirm in

part and reverse in part.

                                  I.   Procedural History

       {¶2} In 2012, Williams was charged with one count each of attempted murder,

aggravated robbery, and felonious assault.          He was charged along with three

codefendants in the severe beating of an autistic man.       Williams entered into a plea

agreement with the state in which he agreed to plead guilty to attempted murder and

felonious assault.   The state asked the court to dismiss the aggravated robbery charge.

       {¶3} At the plea hearing, the trial court informed Williams that his attempted

murder and felonious assault convictions would merge for sentencing purposes. But at

the sentencing hearing, the trial court sentenced Williams to seven years for attempted

murder and a separate seven-year sentence for felonious assault.

       {¶4} Williams filed a notice of delayed appeal, which we granted, and raised the

following assignments of error for our review:

       [I.] Defendant was denied due process of law when the court multiply [sic]
       sentenced defendant for attempted murder and felonious assault after
       advising defendant that these offenses would be merged.
       [II.] Defendant was denied due process of law when his plea was induced
       by improper promises by the court.

       [III.] Defendant was denied due process of law and his right to a fair and
       impartial tribunal when the court relied on facts from a [trial] or pleas by a
       co-defendant.
         [IV.] Defendant was denied due process of law when the court failed to
         inform defendant concerning the effect of a plea of guilty.

         [V.] Defendant was denied his rights under the Sixth Amendment when
         the court, at sentencing, relied upon facts neither alleged in the indictment
         nor admitted by defendant at his plea.

         [VI.] Defendant was denied due process of law and equal protection of
         the law when he was sentenced to a greater sentence than the other three
         co-defendants.

         {¶5} The assignments of error will be combined for purposes of review into two

categories: plea and sentencing hearing.

                                    II.   Law and Analysis

Plea

         {¶6} In the second and fourth assignments of error, Williams challenges his guilty

pleas.    He claims that he was induced to plead guilty because he thought by the court’s

statements at the plea hearing he would get less than seven years in prison, and the trial

court failed to inform him of the effect of a guilty plea.

         {¶7} Pursuant to Crim.R. 11(C)(2), a court shall not accept a guilty plea in a felony

case 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 * * *.

         (b) Informing the defendant of and determining that the defendant
         understands the effect of the plea * * *, and that the court, upon acceptance
         of the plea, may proceed with judgment and sentence.

         (c) Informing the defendant and determining that the defendant understands
         that by the plea the defendant is waiving the rights to jury trial, to confront
       witnesses against him or her, to have compulsory process for obtaining
       witnesses in the defendant’s favor, and to require the state to prove the
       defendant’s guilt beyond a reasonable doubt at a trial at which the defendant
       cannot be compelled to testify against himself or herself.

       {¶8} 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).

       {¶9} A trial court must strictly comply with the Crim.R. 11(C)(2)(c) requirements

that relate to the waiver of constitutional rights.    State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.             Under the more stringent standard for

constitutionally protected rights, a trial court’s acceptance of a guilty plea will be

affirmed only if the trial court engaged in meaningful dialogue with the defendant which,

in substance, explained the pertinent constitutional rights “in a manner reasonably

intelligible to that defendant.” Ballard, paragraph two of the syllabus.

       {¶10} With respect to the nonconstitutional requirements of Crim.R. 11, set forth

in Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial

compliance with the rule. Veney at ¶ 14-17.       “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.”     State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990). “[I]f it appears from the record that the defendant appreciated the

effect of his plea and his waiver of rights in spite of the trial court’s error, there is still

substantial compliance.” State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959
(4th Dist.1995).    Further, a defendant must show prejudice before a plea will be vacated

for a trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects

of the plea colloquy are at issue. Veney at ¶ 17.

         {¶11} In the case at bar, our review of the record shows that the trial court adhered

to the requirements of Crim.R. 11.       During the plea colloquy, Williams affirmatively

expressed that he understood his rights and that he understood he was giving up those

rights by entering a guilty plea.      The trial court explained each count to Williams,

informed him of the maximum time he could receive on each count, and explained to him

the sentencing range for each offense to which he was pleading guilty.

         {¶12} Williams claims that he was induced to plead guilty because the court made

him think he would receive less than seven years in prison, but the record belies that

claim. The trial court told Williams that it would make no promises as to the length of

his sentence but that it would consider giving him “the mid to higher end range for a

felony of the first degree.”    The court then indicated that the range it would consider

would be from six to nine years in prison and it would make its final determination after it

reviewed his presentence investigation report.      Three times the court asked Williams if

he understood the range in sentencing and each time Williams responded, “Yes.”

Moreover, Williams told the trial court he understood his rights and the possible penalties

associated with his plea.

         {¶13} Williams also argues that he did not understand the effect of pleading guilty.

 But a
       defendant who has entered a guilty plea without asserting actual innocence
       is presumed to understand that he has completely admitted his guilt. In such
       circumstances, a court’s failure to inform the defendant of the effect of his
       guilty plea as required by Crim.R. 11 is presumed not to be prejudicial.

State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus. Here, the

record reflects that Williams understood the rights he would waive by pleading guilty, he

never claimed actual innocence, and he indicated his understanding of the maximum

sentences that could be imposed.    Accordingly, the record sufficiently demonstrates that

Williams understood that by entering a guilty plea, he admitted to committing the charged

offenses.

       {¶14} Based on the record, we find no fault with the plea colloquy, or that

Williams did not understand the rights that he waived, or that his plea was not knowingly

and intelligently made.

       {¶15} The second and fourth assignments of error are overruled.

Sentencing

       {¶16} In the remaining assignments of error, Williams challenges the sentence the

trial court imposed. In the first assignment of error, Williams argues that the trial court

erred in failing to merge the felonious assault and attempted murder convictions.      The

state concedes the assignment of error, and we agree.

       {¶17} R.C. 2941.25 provides as follows:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.
       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶18} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court established, through a two-tier test, that the conduct of the

accused must be considered when determining whether offenses are allied offenses of

similar import subject to merger. The first inquiry focuses on whether it is possible to

commit multiple offenses with the same conduct.          Id. at ¶ 48.    If the offenses

“correspond to such a degree that the conduct of the defendant constituting commission

of one offense constitutes commission of the other, then the offenses are of similar

import.” Id.    It is not necessary that both crimes are always committed by the same

conduct, only whether it is possible for the defendant’s conduct to result in the

commission of both offenses.     Id. If it is possible to commit both offenses with the

same conduct, then courts must look at the “state of mind” of the offender to determine if

the offender acted with a separate animus or purpose in committing two or more offenses.

 Id.

       {¶19} Under Johnson, the facts of the criminal conduct must be evaluated to

determine whether the offenses are allied offenses subject to merger.

       Post Johnson, courts must undertake a case-by-case inquiry as to whether
       the defendant’s conduct can constitute the commission of more than one
       charged offense.

State v. Hicks, 8th Dist. Cuyahoga No. 95169, 2011-Ohio-2780, ¶ 10.
       {¶20} The record here demonstrates that the attempted murder and the felonious

assault convictions should have merged; moreover, the trial court indicated at the plea

hearing that they would. Accordingly, the first assignment of error is sustained and the

case is remanded for resentencing, at which the state shall elect on which count to

proceed. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶

25.

       {¶21} In the third, fifth, and sixth assignments of error, Williams challenges the

length of his sentence, arguing that the trial court relied on improper evidence when

sentencing him and that he should have received a sentence commensurate with his

codefendants.   However, because we are remanding the case for resentencing under the

first assignment of error, these arguments are now moot. See App.R. 12(A)(1)(C).

       {¶22} Accordingly, judgment is affirmed in part and reversed in part; case is

remanded for resentencing consistent with this opinion.

       It is ordered that appellant and appellee split the 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.




LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
