[Cite as State v. Rodgers, 2011-Ohio-2535.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95560




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                               DESHAWN RODGERS
                                                    DEFENDANT-APPELLANT




                        JUDGMENT:
            AFFIRMED IN PART, REVERSED IN PART,
                        REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    2

                             Case No. CR-534862

      BEFORE:     Rocco, J., Celebrezze, P.J., and Cooney, J.

      RELEASED AND JOURNALIZED:               May 26, 2011

                                     -i-

ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Mary McGrath
      Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} After entering guilty pleas to charges of attempted felonious

assault and theft of a motor vehicle, defendant-appellant Deshawn Rodgers

appeals from his convictions and sentence.
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      {¶ 2} Rodgers presents seven assignments of error.           He asserts his

convictions should be reversed and his pleas and sentence should be vacated

because the trial court: 1) failed to fully inform him regarding postrelease

control; 2) summarily overruled his motion to vacate and withdraw his plea;

3) failed to fully inform him of the effect of his plea; 4) failed to ensure that he

understood the nature of the offenses before accepting his plea; 5) based its

sentence on facts “not alleged in the indictment”; 6) assessed court costs

against him; and, 7) did not obtain his consent before sentencing him, because

it was not the same judge who accepted his plea.

      {¶ 3} Upon a review of the record, this court finds no reversible error

occurred with respect to Rodgers’s guilty pleas.        However, the trial court

erred when it included the imposition of court costs in the judgment entry of

sentence, since the court did not afford Rodgers the opportunity to claim

indigency.    In all other respects, the sentence is affirmed.          This case,

therefore, is remanded for proceedings consistent with this opinion.

      {¶ 4} Rodgers originally was indicted in this case on seven counts.       He

was charged with four counts of felonious assault, one count of theft of a

motor vehicle, one count of criminal damaging or endangering, and one count

of falsification. After the parties exchanged discovery, the state notified the

trial court that a plea agreement had been reached.
                                      4

      {¶ 5} The record reflects the assigned judge was unavailable at this

time, so a visiting judge conducted a hearing on the matter. The prosecutor

explained the state’s offer, i.e., in exchange for Rodgers’s guilty plea to Count

1, amended to include the attempt statute and all four victims’ names, and to

Count 4, theft of a motor vehicle, the state would dismiss the remaining

counts.

      {¶ 6} The trial court conducted a colloquy with Rodgers.        The court

informed him of the constitutional rights he was waiving, the maximum

penalties involved, and cautioned him that his sentence would be imposed by

the assigned judge. Rodgers indicated his understanding, and entered guilty

pleas to the two counts. The trial court accepted his pleas, dismissed the

other five counts, and referred him for a presentence report.

      {¶ 7} When Rodgers’s case was called for sentencing, the assigned

judge listened to the statements of one of the named victims, Rodgers’s

defense counsel, and Rodgers himself before proceeding to describe the

circumstances that surrounded the incident that led to Rodgers’s convictions

in this case.   The trial court further outlined Rodgers’s entire criminal

record, which included many instances of drug possession, “moving

violations,” and driving without a valid license.
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     {¶ 8} Ultimately, the trial court imposed concurrent terms of three

years and twelve months.     The trial court further included in its journal

entry an order for Rodgers to pay court costs.

     {¶ 9} A week later, Rodgers filed a motion to “vacate” his plea.   In his

affidavit attached to his motion, Rodgers asserted his defense attorney had

“promised” that he would “receive probation.”         The trial court denied

Rodgers’s motion without opinion.

     {¶ 10} Rodgers’s assignments of error are set forth as follows:

     {¶ 11} “I.     Defendant was denied due process of law when the

court did not properly inform the defendant concerning post-release

[sic] control.

     {¶ 12} “II.    Defendant was denied due process of law when the

court summarily overruled his motion to vacate and withdraw his

plea without conducting a hearing.

     {¶ 13} “III.    Defendant was denied due process of law when the

court did not inform him of the effect of his plea of guilty.

     {¶ 14} “IV. Defendant was denied due process of law when the

court failed to determine that defendant understood the nature of

the offense [sic] to which he was entering a plea of guilty.
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         {¶ 15} “V. Defendant was denied due process of law when the

court based its sentencing on facts not alleged in the indictment

[and] not admitted by defendant at his plea.

         {¶ 16} “VI.    Defendant was denied due process of law when the

court assessed court costs when there was no pronouncement of

court costs.

         {¶ 17} “VII.   Defendant was denied due process of law when the

court did not waive his right to be sentenced by the same judge who

took his plea.”

         {¶ 18} Rodgers’s first, third, and fourth assignments of error all present

challenges to the propriety of the trial court’s actions at his plea hearing;

therefore, they will be addressed together.        Rodgers argues that, prior to

accepting his guilty pleas, the visiting judge did not adequately either inform

him concerning postrelease control, describe the effect his pleas would have,

or ensure he understood the nature of the offenses to which he was entering

pleas.

         {¶ 19} Crim.R. 11(C)(2) states:

         {¶ 20} “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:
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      {¶ 21} “(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.

      {¶ 22} “(b) Informing the defendant of and determining that the

defendant understands the effect of the plea of guilty or no contest, and that

the court, upon acceptance of the plea, may proceed with judgment and

sentence.

      {¶ 23} “(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.”

      {¶ 24} In determining whether the trial court has satisfied its duties

under Crim.R. 11 in taking a plea, reviewing courts make a distinction

between constitutional and nonconstitutional rights. State v. Higgs (1997),

123 Ohio App.3d 400, 704 N.E.2d 308; State v. Gibson (1986), 34 Ohio App.3d

146, 517 N.E.2d 990.      The trial court must strictly comply with those
                                      8

provisions of Crim.R. 11(C) that relate to the waiver of constitutional rights.

State v. Stewart (1977), 51 Ohio St.2d 86, 88-89, 364 N.E.2d 1163; State v.

Ballard (1981), 66 Ohio St.2d 473, 423 N.E .2d 115, paragraph one of the

syllabus.

      {¶ 25} For nonconstitutional rights, the trial court must “substantially

comply” with the rule’s requirements.       Stewart.   “Substantial compliance

means that under the totality of the circumstances the defendant subjectively

understands the implication of his plea and the rights he is waiving.” State

v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474.

      {¶ 26} Moreover, a defendant who challenges his guilty plea on the basis

that it was not knowingly, voluntarily, and intelligently entered must show a

prejudicial   effect.   State   v.   Moulton,   Cuyahoga    App.    No.   93726,

2010-Ohio-4484.     The test for prejudice is whether the plea would have

otherwise been made. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621.

      {¶ 27} In this case, the record reflects the trial court complied literally

with Crim.R. 11(C)(2) with respect to the constitutional requirements. The

trial court further informed Rodgers that if he pleaded guilty to attempted

felonious assault, he would be subject to the “possible penalty of incarceration

of one to five years in one-year increments, and/or a fine up to $10,000,” and
                                       9

that his guilty plea to a charge of theft of a motor vehicle would subject him to

the “possible penalty of incarceration from 6 to 18 months in one-month

increments and/or a fine up to $5,000.”

      {¶ 28} The trial court did not specifically tell Rodgers that his guilty plea

constituted a complete admission of his guilt. Nevertheless, this court does

not find the omission constituted reversible error. Rodgers had no questions

for the court, made no protest that he was innocent, and did not give any

indication that he was unaware of this consequence.             State v. Taylor,

Cuyahoga App. No. 94569, 2010-Ohio-5607, ¶5.

      {¶ 29} The trial court also neither discussed the “nature of the offenses,”

nor correctly informed Rodgers that a conviction for a third-degree felony in

which there was a risk of physical harm carries a mandatory three-year term

of postrelease control. R.C. 2967.28(B)(3). Rather, the trial court told him

the felonious assault charge carried the “possibility of three years of

Post-Release Control.”

      {¶ 30} The question thus becomes whether this additional omission and

the misstatement caused Rodgers’s plea to be invalid. The record in this

case reflects Rodgers had the assistance of an experienced defense attorney.

Moreover, prior to commencing the colloquy, the trial court invited Rodgers to
                                            10

“please feel free to interrupt [it] at any time if there [was] anything [he] did

not understand.”

       {¶ 31} Rodgers did not ask the trial court to explain the charges to him.

State v. King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 399.

Furthermore, the record contains no indication “that postrelease control was

of particular concern or import” to Rodgers. State v. Lang, Cuyahoga App.

No. 92099, 2010-Ohio-433, ¶14.         Indeed, Rodgers did not raise any of the

issues he raises in his first, third, and fourth assignments of error in his

motion to withdraw his plea. It must also be noted that, in accepting the

state’s offer, Rodgers obtained a significant reduction in the charges against

him.

       {¶ 32} From the foregoing, this court concludes Rodgers waived these

arguments for purposes of appeal, and cannot demonstrate any prejudicial

effect resulted from the trial court’s inexactness.

       {¶ 33} Rodgers’s   first,   third,    and   fourth   assignments   of   error,

accordingly, are overruled.

       {¶ 34} Rodgers argues in his second assignment of error that the trial

court erred in overruling his motion to withdraw his plea without conducting

a hearing. Since Rodgers never requested a hearing on his motion, he has
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waived this argument on appeal. State v. Williams (1977), 51 Ohio St.2d

112, 364 N.E.2d 1364.

     {¶ 35} Moreover, even were this court to consider Rodgers’s argument

that his attorney “promised” he would receive probation, the record

demonstrates otherwise. See State v. Steimle (Dec. 7, 2000), Cuyahoga App.

Nos. 77005, 77303, 77006, and 77302. When Rodgers made this declaration

at the plea hearing, his attorney clarified what his client had been told.

Defense counsel stated that he told Rodgers “probation is possible,” because

the prosecutor indicated the victim was “not seeking any jail time,” however,

the matter would be presented to the assigned judge.

     {¶ 36} Rodgers’s second assignment of error, therefore, also is overruled.

     {¶ 37} In his fifth assignment of error, Rodgers argues that the trial

court violated his Sixth Amendment rights during the sentencing hearing.

He claims the trial court’s description of the circumstances that led to his

convictions, as gleaned from the presentence report, was prohibited by the

United States Supreme Court’s decision in Blakely v. Washington (2004), 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed2d 403. This court disagrees.

     {¶ 38} R.C. 2951.03(B)(3) permits the trial court to state orally the

information contained in the presentence report that it relies upon in

pronouncing sentence. State v. Halloman-Cross, Cuyahoga App. No. 88159,
                                      12

2007-Ohio-290, ¶43. In this case, the court outlined the incident, listened to

Rodgers’s excuse for his behavior, then gave a history of Rodgers’s many

experiences with the criminal justice system. After so stating, the trial court

determined Rodgers was not a good candidate for community control

sanctions. Crim.R. 32.2.

      {¶ 39} The trial court acted within its discretion; therefore, Rodgers’s

fifth assignment of error also is overruled.

      {¶ 40} Rodgers asserts in his sixth assignment of error that, since the

trial court failed to impose court costs during the sentencing hearing, it could

not properly include them in its judgment entry of sentence.               This

assignment of error has merit.

      {¶ 41} Pursuant to Crim.R. 43(A), a criminal defendant must be present

at every stage of his trial, including sentencing. R.C. 2947.23(A) provides:

“[i]n all criminal cases, including violations of ordinances, the judge or

magistrate shall include in the sentence the costs of prosecution, including

any costs under section 2947.231 of the Revised Code, and render a judgment

against the defendant for such costs.”

      {¶ 42} The argument Rodgers raises has been addressed by the Ohio

Supreme Court in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926

N.E.2d 278. Joseph held that a trial court may not impose court costs in its
                                      13

sentencing entry when it did not impose those costs on the defendant in open

court. The error does not void Rodgers’s entire sentence, but mandates that

this court remand the case for the limited purpose of notifying Rodgers of the

imposition of court costs as required by R.C. 2747.23, and allowing him the

opportunity to request a waiver of payment of court costs. State v. Stevens,

Cuyahoga App. No. 95011, 2011-Ohio-729, ¶8.

      {¶ 43} Rodgers’s sixth assignment of error is sustained.

      {¶ 44} Rodgers argues in his seventh assignment of error that the

assigned trial judge erred in failing to obtain his waiver before sentencing

him. He contends that, because a visiting judge accepted his plea, that same

judge should have sentenced him.

      {¶ 45} Rodgers never raised this issue in the trial court, hence, it is

waived for purposes of appeal.         State v. Sizemore, Butler App. No.

CA2005-03-081, 2006-Ohio-1434.        Rodgers’s seventh assignment of error,

accordingly, is overruled.

      {¶ 46} Rodgers’s convictions are affirmed.   His sentence is affirmed in

part, reversed and vacated in part, and this case is remanded for the limited

purpose of notifying him of the imposition of court costs, thus providing him

the opportunity to claim indigency.

      It is ordered that appellant and appellee share costs herein taxed.
                                     14

      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. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

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

Rule 27 of the Rules of Appellate Procedure.



_______________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
