[Cite as State v. Tellington, 2011-Ohio-3405.]

                             STATE OF OHIO, MAHONING COUNTY

                                    IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )   CASE NO. 10 MA 139
        PLAINTIFF-APPELLEE,                      )
                                                 )
        - VS -                                   )         OPINION
                                                 )
JOHNATHAN TELLINGTON,                            )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                            Criminal Appeal from Common Pleas
                                                     Court, Case No. 09 CR 1254A.


JUDGMENT:                                            Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                              Attorney Paul J. Gains
                                                     Prosecuting Attorney
                                                     Attorney Ralph M. Rivera
                                                     Assistant Prosecuting Attorney
                                                     21 W. Boardman St., 6th Floor
                                                     Youngstown, OH 44503

For Defendant-Appellant:                             Attorney Louis DeFabio
                                                     4822 Market Street, Suite 220
                                                     Youngstown, OH 44512



JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
                                                                                       -2-


                                                  Dated: June 24, 2011

DeGenaro, J.
       {¶1}    Defendant-Appellant, Johnathan Tellington, appeals the July 26, 2010
judgment of the Mahoning County Court of Common Pleas convicting him of one count of
aggravated robbery with a firearm specification and sentencing him accordingly. On
appeal, Tellington argues that his plea was not knowing, voluntary and intelligent and that
his sentence was erroneous.
       {¶2}    Upon review, Tellington's arguments are meritless. The trial court fully
complied with Crim.R. 11 in accepting Tellington's guilty plea and Tellington's sentence
was not an abuse of discretion or contrary to law. Accordingly, the judgment of the trial
court is affirmed.
                             Facts and Procedural History
       {¶3}    On December 3, 2009, Tellington was indicted by the Mahoning County
Grand Jury on one count of aggravated robbery (R.C 2911.11(A)(1)(C)), a first-degree
felony, and a R.C. 2941.145(A) firearm specification. Along with co-defendant, Damon L.
Williams, Tellington was accused of robbing an elderly woman of her purse at gunpoint as
she exited a Youngstown check-cashing business. Tellington initially entered a not guilty
plea and counsel was appointed to represent him.
       {¶4}    The case proceeded to trial.      Towards the end of the State's case,
Tellington and Williams decided to plead guilty to the charges in the indictment. This was
not a negotiated plea agreement as the State made no promises in consideration of the
guilty plea.
       {¶5}    The trial court held a joint Criminal Rule 11 plea hearing for both men after
confirming with the defense attorneys and the prosecutor that there was no objection to
the joint plea hearing. The trial court engaged in a colloquy with Tellington regarding the
rights he would give up by pleading guilty. At the end of the hearing, the court accepted
Tellington's plea as knowingly, voluntarily and intelligently made.        A pre-sentence
investigation was ordered and prepared.
                                                                                         -3-


       {¶6}   At Tellington's sentencing hearing the State recommended the court impose
the maximum sentence of 13 years of imprisonment because Tellington had not accepted
responsibility for his crime, and well as the seriousness of the offense and its negative
effect upon the victim. Defense counsel advocated for less than the maximum because
Tellington had no criminal history other than a minor traffic citation, strong family support,
and no incidences of bad behavior while on bond pending sentencing. Further, counsel
argued that the act of pleading guilty demonstrated that Tellington had accepted
responsibility. The robbery victim, who was 83 years old at the time of the crime, made a
statement to the court, expressing how the robbery had a severely negative impact on her
life. The trial court asked Tellington if he wanted to make a statement in mitigation of
sentence. Tellington made a brief statement. He apologized to the victim and stated that
he accepted full responsibility for his actions.
       {¶7}   At the close of the hearing, the court sentenced Tellington to ten years of
imprisonment: seven years for the aggravated robbery, to be served consecutively to the
three-year mandatory sentence for the firearm specification. The court gave Tellington
jail time credit and informed Tellington that upon completion of his sentence he would be
placed on five years of mandatory post-release control.
                                            Plea
       {¶8}   In his first of two assignments of error, Tellington asserts:
       {¶9}   "The trial court failed to substantially comply with Crim.R. 11, and, therefore,
erred in accepting the appellant's guilty plea. As such, the Defendant's guilty was not
knowing, intelligent and voluntary."
       {¶10} A plea must be made knowingly, voluntarily and intelligently. State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at ¶7; State v. Engle
(1996), 74 Ohio St.3d 525, 527, 660 N.E.2d 450. If not, it has been obtained in violation
of due process and is void. State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806,
at ¶11, citing Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d
274. When determining the voluntariness of a plea, this court must consider all of the
relevant circumstances surrounding it. State v. Johnson, 7th Dist. No. 07 MA 8, 2008-
                                                                                          -4-


Ohio-1065, at ¶8, citing Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25
L.Ed.2d 747. Thus, the trial court must engage the defendant in a colloquy pursuant to
Crim.R. 11(C). State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at
¶25-26. During the colloquy, the trial court is to provide specific information to the
defendant, including constitutional and nonconstitutional rights being waived. Crim.R.
11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355.
       {¶11} The constitutional rights include the right against self-incrimination, the right
to a jury trial, the right to confront one's accusers, the right to compel witnesses to testify
by compulsory process, and the right to have the state prove the defendant's guilt beyond
a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, ¶19-21. A trial court must strictly comply with these requirements. Id. at ¶31;
State v. Ballard (1981), 66 Ohio St.2d 473, 477. "Strict compliance" does not require a
rote recitation of the exact language of the rule. Rather, a reviewing court should focus
on whether the "record shows that the judge explained these rights in a manner
reasonably intelligible to the defendant." Id. at paragraph two of the syllabus.
       {¶12} The nonconstitutional rights include that the defendant must be informed of
the effect of his plea, the nature of the charges, and the maximum penalty involved, which
includes an advisement on post-release control. Further the defendant must be notified,
if applicable, that he is not eligible for probation or the imposition of community control
sanctions. Finally, the defendant must be notified that the court may proceed to judgment
and sentence after accepting the guilty plea. Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio
St.3d 176 at ¶10-13; Sarkozy, 117 Ohio St.3d 86, at ¶19-26. With regard to these
nonconstitutional rights, substantial compliance is required. State v. Nero (1990), 56 Ohio
St.3d 106, 108, 564 N.E.2d 474. "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." Id. at 108. In addition, a defendant who challenges his guilty
plea on the basis that the advisement for the nonconstitutional rights did not substantially
comply with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea
would not have otherwise been entered. Veney, 120 Ohio St.3d 176 at ¶15 citing Nero,
                                                                                         -5-


56 Ohio St.3d at 108.
       {¶13} Tellington first argues that the trial court failed to substantially comply with
Crim.R. 11(C)(2)(a) by failing to adequately inform him of the nature of the charges
against him. However, as Tellington concedes in his brief, "Ohio courts do not require
that the trial court inform the accused of the actual elements of the charged offense; a
defendant can obtain this information from whatever source, be it from the trial court itself,
the prosecutor, or some other source." Johnson, 2008-Ohio-1065, at ¶14, citing, State v.
Blair (1998), 128 Ohio App.3d 435, 437-438, 715 N.E.2d 233.
       {¶14} In Johnson, this court held that the trial court complied with Crim.R.
11(C)(2)(a) because the accused signed a document wherein he stated, "[c]ounsel has
advised me and I fully understand the nature of the charge(s) against me and the
elements contained therein" and his counsel told the court that the accused was ready to
plead guilty. Id. at ¶15.
       {¶15} This presents a similar situation as Tellington signed a document stating: "I
represent that I am satisfied with my legal counsel and that I fully understand the nature
of the charge(s) and/or specification(s) against me and the elements contained therein."
Tellington affirmed at the hearing that he had reviewed that document thoroughly with his
attorney.
       {¶16} Further, the trial court informed Tellington generally about the nature of the
charges against him during the colloquy:
       {¶17} "THE COURT: Do you understand that these documents state that you
want to withdraw your former plea of not guilty and now enter a plea of guilty to one count
of aggravated robbery, a violation of Ohio Revised Code 2911.01(A)(1)(C), a felony of the
first degree, and to a firearm specification in violation of Ohio Revised Code 2941.145(A).
Is that correct, Mr. Tellington?
       {¶18} "DEFENDANT TELLINGTON: Yes, ma'am."
       {¶19} Finally, Tellington entered his guilty plea near the close of the State's case
against him at trial. Although we do not have a transcript of the trial for review on appeal,
we may presume that Tellington gained knowledge of the nature of the charges against
                                                                                         -6-


him during the trial as well. See, e.g. State v. Hull, 7th Dist. No. 04 MA 2, 2005-Ohio-
1659, at ¶37 ("without a complete transcript, this court must presume the regularity of the
proceedings below.")
       {¶20} Tellington supports his argument with State v. Blair (1998), 128 Ohio App.3d
435, 715 N.E.2d 233, which is distinguishable. In Blair, the defendant entered a guilty
plea on the day of trial and there was nothing in record to support a finding he was ever
advised, by anyone, of the nature of the charge to which he pled guilty. By contrast, the
record sufficiently indicates that under the totality of the circumstances, Tellington
understood the nature of the charges against him.
       {¶21} Second, Tellington contends that the trial court failed to substantially comply
with Crim.R. 11(C)(2)(b) by failing to explain the effect of the guilty plea. However, where
a defendant fails to assert his innocence there is a presumption that he understands the
effect of his guilty plea. "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, at syllabus. Tellington never asserted his
actual innocence during the plea hearing. Therefore, any error in failing to inform him that
by pleading guilty he was admitting guilt is harmless.
       {¶22} The case cited by Tellington, State v. Jones, 116 Ohio St.3d 211, 2007-
Ohio-6093, 877 N.E.2d 677, does not support his argument. Jones involved a guilty plea
to a petty misdemeanor, and more importantly, the Court in Jones concluded there was
no prejudice because Jones failed to assert his actual innocence:
       {¶23} "Jones presented no evidence that at the time of his guilty plea, he claimed
innocence. Under Griggs, any error by the trial court in failing to adequately inform him of
the effect of his plea was not prejudicial, because Jones did not assert his innocence at
the colloquy. He is, therefore, presumed to understand that a plea of guilty is a complete
admission of guilt. [State v. Griggs],103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51,
¶19. At the plea hearing, his attorney explained why Jones was entering the guilty plea:
                                                                                       -7-


'In order to spare this family any further grief he's agreed to enter this plea today and
accept responsibility for his actions in this case.'" Jones at ¶54.
       {¶24} In sum, Tellington's plea was knowing, voluntary and intelligent.
Accordingly, Tellington's first assignment of error is meritless.
                                       Sentencing
       {¶25} In his second assignment of error, Tellington asserts:
       {¶26} "The trial court's sentence of seven years (7) of imprisonment constituted an
abuse of discretion and was contrary to law. Further, the Appellant was denied due
process of law at the sentencing hearing."
       {¶27} When reviewing a felony sentence, an appellate court first reviews the
sentence to ensure that the sentencing court clearly and convincingly complied with the
applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at
¶4. A trial court's sentence would be contrary to law if, for example, it were outside the
statutory range, in contravention to a statute, or decided pursuant to an unconstitutional
statute. Id. at ¶15. If this inquiry is satisfied, an appellate court then reviews the trial
court's sentencing decision for abuse of discretion. Kalish at ¶17, 19-20. An abuse of
discretion means more than an error of law or judgment; but rather implies that the court's
attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio
St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.
       {¶28} With regard to the first prong of the inquiry, Tellington's sentence is clearly
and convincingly not contrary to law. The ten-year sentence he received, seven years for
the aggravated robbery charge to be served consecutively with the three-year mandatory
sentence for the firearm specification, was within the statutory range.          See R.C.
2911.01(A)(1)(C), 2929.14(A)(1), 2941.145(A), 2929.14(D)(1)(a)(ii). In addition, the trial
court expressly stated that it had considered the principles and factors contained in R.C.
2929.11 and 2929.12. Further, Tellington was afforded his allocution rights pursuant to
Crim.R. 32(A)(1). The trial court asked Tellington if he had anything to say before the
sentence was imposed, and Tellington gave a brief statement, apologizing for his actions.
Finally, the court properly notified Tellington that upon his release from prison he would
                                                                                         -8-


be subject to five years of mandatory post-release control. R.C. 2967.28(B).
       {¶29} Tellington contends his sentence was contrary to law because it was
allegedly imposed by the court as punishment for Tellington's exercise of his
constitutional right to a jury trial, imposing a "trial tax" upon him.
       {¶30} "[I]t is patently unconstitutional to penalize a defendant for exercising his
constitutional or statutory rights, which would include the right to trial. See Pearce, 395
U.S. at 724. See, also, State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-
Ohio-1197, ¶33 (equating vindictive sentence with unconstitutional sentence).               A
defendant should thus never be punished for exercising his right to trial or for refusing to
enter into a plea agreement. See State v. O'Dell (1989), 45 Ohio St.3d 140, 147, 543
N.E.2d 1220.
       {¶31} "Accordingly, a trial court may not impose an increased sentence in
retaliation for the defendant choosing to exercise his right to trial, regardless of whether
the evidence of his guilt is said to be overwhelming." State v. Mayles, 7th Dist. No. 04 CA
808, 2005-Ohio-1346, ¶45, citing State v. Scalf (1998), 126 Ohio App.3d 614, 620, 710
N.E.2d 1206. We do not presume impropriety by the mere fact that the sentence
imposed after trial is greater than a sentence offered by the state at plea negotiations. Id.
at ¶46.
       {¶32} "However, if the record also demonstrates that the defendant received an
enhanced sentence in retaliation for exercising his constitutional right to a jury trial, then
the sentence should be vacated unless the court specifically stated that this was not a
reason." State v. Donald, 7th Dist. No. 08 MA 154, 2009-Ohio-4638, at ¶25-26.
       {¶33} Tellington points to a statement by the prosecutor in support of his argument
that the trial court imposed a trial tax upon him. Although the prosecutor did criticize
Tellington for waiting to plead guilty until after the start of the trial, the comments
demonstrate that Tellington had not taken full responsibility for his actions:
       {¶34} "[PROSECUTOR]: Judge, not only did Mrs. Rosa [the victim] have to go
through this experience but she had to come into this court and testify in front of a jury.
This wasn't a plea deal made as you know prior to trial. We were in the trial. She had to
                                                                                             -9-


testify, which, again, was very traumatic for her. Not only did she have to live through the
experience but come in here and tell a jury full of people that she didn't know about this
traumatic thing that happened to her. And no responsibility by these defendants were
taken prior to trial. They did plead in the middle of the case -- well, actually almost at the
close of the state's case as the court's aware, but those circumstances were not because
they took responsibility. It was due to a witness they couldn't find. I do believe in giving
credit when someone takes responsibility for their crime, but in this situation they did not.
They knew prior to her testimony they could do that and they chose not to. So I would
ask based upon those reasons and the fact that they both used a gun to commit this
crime, that they both be sentenced to the maximum term that they can be sentenced to."
          {¶35} Even assuming the above comments by the prosecutor were improper and
there was no objection to them by the defense, there is nothing in the record indicating
that the trial court's chosen sentence was intended "to punish Tellington for exercising his
right to a jury trial. In his brief Tellington concedes that the trial court "did not specifically
rely on or refer to this 'trial tax' in sentencing Appellant."
          {¶36} Tellington argues, however, that once the appearance of a trial tax has been
created, the trial court has a duty to rebut the inference with an unequivocal statement
that it did not consider the defendant's decision to go to trial in fashioning its sentence.
Tellington cites State v. Morris (2005), 159 Ohio App.3d 775, 825 N.E.2d 637, and Scalf
in support of his argument, however, these cases are factually distinguishable.
          {¶37} In Scalf, the sentencing court made statements that created the appearance
of a trial tax. Specifically, in Scalf court stated: "You had an opportunity to do the right
thing, which is to admit your culpability, and you did not do it * * * I want you to know, had
he been willing to enter a plea on this case, he would have been afforded probation. He
wouldn't have gone to the institution. But now you're going to the institution." Scalf at
623. In Morris, the sentencing court "candidly stated that he was angry that Morris had
elected to go to trial," and when imposing Morris's sentence, the sentencing court noted it
had considered that fact that Morris decided to take the case to trial rather than pleading
guilty.    Morris at ¶15.    Similarly, in Donald, the sentencing court made improper
                                                                                        - 10 -


comments about the defendant's exercise of his right to go to trial, it participated in plea
discussions, and disparagingly asked the defendant if he knew the difference between
the two-year sentence offered by the state and the maximum eight-year sentence he
would probably get after trial. Id. at ¶29.
         {¶38} By contrast, in this case, the trial court made no improper comments
regarding Tellington's exercise of his right to go to trial. Tellington's sentence was clearly
and convincingly not contrary to law.
         {¶39} Turning to the second prong of the test, the trial court's overall sentencing
decision was not an abuse of discretion. Although recidivism was less likely due to
Tellington's lack of a criminal history, the crime was made more serious due to the
advanced age of the victim and the severe psychological harm the crime caused her.
See R.C. 2929.12(B)(1)-(2), and (E). Specifically, the victim testified:
         {¶40} "Since all this has happened to me I now suffer with a series of problems
with reliving this horrible experience through nightmares, sleeplessness, anxiety, chest
pains, and panic attacks for which I have been in and out of the hospital. I cannot go out
into the public without constantly watching everyone around me and wondering if it's
safe."
         {¶41} The trial court could have imposed anywhere from an eight to a thirteen-
year prison sentence upon Tellington. The court chose a mid-range sentence of ten
years, which is not an abuse of discretion based upon the above considerations.
Accordingly, Tellington's second assignment of error is meritless.
         {¶42} In conclusion, Tellington's guilty plea was knowing, voluntary and intelligent
and the trial court fully complied with Crim.R. 11(C). And Tellington's sentence was
neither an abuse of discretion nor contrary to law. Accordingly, the judgment of the trial
court is affirmed.
Waite, P.J., concurs.
Vukovich, J., concurs.
