[Cite as State v. Tutt, 2016-Ohio-3259.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103181




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           KHALID TUTT
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-589749-A

        BEFORE: E.T. Gallagher, P.J., Stewart, J., and Boyle, J.

        RELEASED AND JOURNALIZED: June 2, 2016
ATTORNEY FOR APPELLANT

P. Andrew Baker
Buckeye Law Office
11510 Buckeye Road
Cleveland, Ohio 44104


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY:    Gregory J. Ochocki
       Marc D. Bullard
Assistant Prosecuting Attorneys
The Justice Center, 8th and 9th Floors
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:

       {¶1} Defendant-appellant, Khalid Tutt (“Tutt”), appeals his convictions and raises

the following three assigned errors:

       1. The trial court erred when it accepted defendant-appellant’s plea when
       it was not made knowingly, intelligently, and voluntarily.

       2. The trial court erred in depriving the defendant-appellant of effective
       assistance of counsel.

       3. The trial court erred in improperly imposing consecutive sentences and
       defendant-appellant must receive a new sentencing hearing.

       {¶2} We find merit to the appeal and reverse.

                           I. Facts and Procedural History

       {¶3} Tutt was indicted on several drug-related charges in Cuyahoga C.P. No.

CR-14-589749-A.       He pleaded guilty to (1) trafficking in violation of R.C.

2925.03(A)(2), (2) defacing identification marks on a firearm in violation of R.C.

2923.201(A)(2), (3) tampering with evidence in violation of R.C. 2921.12(A)(1), and (4)

having a weapon while under disability in violation of R.C. 2923.13(A)(2).

       {¶4} Following a presentence investigation, the court sentenced Tutt to a five-year

prison term on the drug trafficking charge, plus a consecutive mandatory one year for the

attendant gun specification for an aggregate six-year term. With respect to the other

charges, the court sentenced Tutt to six months on the defacing identification marks on a

firearm charge, one year on the tampering with evidence charge, and one year on the
having a weapon while under disability charge, to be served concurrently with the

six-year term on the trafficking conviction.

       {¶5} As a result of Tutt’s convictions in this case, the court found him in violation

of the terms of his community control sanctions in Cuyahoga C.P. No. CR-09-528423-A

and sentenced him to one year in prison for the violation to be served consecutive to his

six-year sentence in Case No. CR-589749-A. Tutt now appeals his convictions and

consecutive sentence.

                                  II. Law and Analysis

       {¶6} In the first assignment of error, Tutt argues the trial court erred in finding that

he knowingly, intelligently, and voluntarily pleaded guilty in Case No. CR-589749-A.

He contends the court failed to comply with the requirements of Crim.R. 11(C)(2)(a).

       {¶7} To be constitutionally valid, the criminal defendant must enter a guilty plea to

a felony charge knowingly, intelligently, and voluntarily. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. Crim.R. 11(C) outlines the constitutional

and procedural safeguards the trial court must follow when accepting a guilty plea.

Pursuant to Crim.R. 11(C), the trial court must personally address the defendant and

inform him of the constitutional rights he is waiving by virtue of his plea. The court

must also advise the defendant of several nonconstitutionally based rights, including

knowledge of the “nature of the charges,” the “maximum penalty” involved, and if

applicable, that the defendant is ineligible for community control sanctions. Crim.R.

11(C)(2).   “When a trial judge fails to explain the constitutional rights set forth in
Crim.R. 11(C)(2)(c),” the guilty plea is invalid “under a presumption that it was entered

involuntarily and unknowingly.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

893 N.E.2d 462, ¶ 31. Therefore, the trial court must strictly comply with the mandates

of Crim.R. 11(C)(2) regarding the waiver of constitutional rights. Veney at ¶ 27.

       {¶8} If the trial judge fails to perfectly explain the defendant’s nonconstitutional

rights, “substantial compliance” is sufficient. Clark at ¶ 31. Under this standard, a slight

deviation from the text of the rule is permissible so long as the totality of the

circumstances indicates “the defendant subjectively understands the implications of his

plea and the rights he is waiving.” Id.

       {¶9} Further, where the trial judge partially complied with the rule with respect to

nonconstitutional rights, the plea may only be vacated if the defendant demonstrates a

prejudicial effect. Veney at ¶ 17. The test for prejudice is “‘whether the plea would

have otherwise been made.’” Clark at ¶ 32, quoting State v. Nero, 56 Ohio St.3d 106,

107, 564 N.E.2d 474 (1990).

       {¶10} Tutt argues the trial court did not advise him of the maximum penalty

involved because the court failed to explain the mandatory nature of the sentence he

would receive on the trafficking charge, which was a first-degree felony. He relies on

State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 10, to support his

argument.

       {¶11} In Ware, the Ohio Supreme Court held that trial courts have no authority to

divide a singular “mandatory prison term” into “a hybrid of mandatory and discretionary
sub-terms,” thus making it impossible for a defendant to obtain judicial release after

serving the mandatory portion of the sentence. Ware at ¶ 17. Therefore, Tutt argues,

the trial court should have explained that Tutt would be ineligible for judicial release after

serving the mandatory portion of his prison sentence.

       {¶12} Tutt pleaded guilty to drug trafficking in violation of R.C. 2925.03(A)(2), a

first-degree felony. R.C. 2925.03(A)(2)(e) provides the sentence for this offense and

states that “the court shall impose as a mandatory prison term one of the prison terms

prescribed for a felony of the first degree.” R.C. 2929.14, which governs basic prison

terms, provides that “[f]or a felony of the first degree, the prison term shall be three, four,

five, six, seven, eight, nine, ten, or eleven years.” Therefore, whatever prison term the

court imposes pursuant to R.C. 2929.14 for first-degree felony trafficking offenses in

violation of R.C. 2925.03(A)(2) is a mandatory term.

       {¶13} During the colloquy, the court explained the statutory penalties for each

offense to which Tutt would be pleading guilty, and Tutt asked, “Is this going to be

mandatory time?” Initially the court indicated that only part of the prison term was

mandatory, but quickly corrected itself and stated:

       THE COURT: Oh, it is mandatory. What am I thinking? In other words,
       it’s a minimum mandatory of three years on the felony 1 drugs and
       mandatory one year on the firearm specification.

       THE DEFENDANT: Do those run together or do three and one?

       THE COURT: You’ve got to do at least three and one. That’s four. Four
       is the minimum mandatory here. I’m not representing to you I’m giving
       you four years by any stretch of the imagination. You understand that,
       don’t you.
          THE DEFENDANT: Yes, sir.

(Tr. 9-10.)

          {¶14} With respect to Tutt’s trafficking charge, the court explained:

          A felony of the first degree carries anywhere from three to 11 years in
          prison in yearly increments and/or fine up to $20,000. The one-year
          firearm specification must be served prior to and consecutive to the base
          penalty of three to 11 years.

(Tr. 6.) Thus, the court explained the maximum prison term Tutt could receive for

trafficking.

          {¶15}   However, questions remained regarding the mandatory nature of the

potential prison term. Tutt asked the court if there were any programs available that

would allow him to be released from prison early. In response to this question, the court

answered: “Once you are down there, they control your destiny, I don’t.”

          {¶16} The court’s response suggested that the prison might have programs that

would permit early release from prison. Thus, the court’s response was misleading and

inaccurate because the statute expressly states that service of the entire prison term is

mandatory. The court did not inform Tutt the truth of the matter, which was that any

prison term imposed for Tutt’s trafficking conviction was mandatory, regardless of its

length.     There could be no programs available that would have allowed Tutt to be

released from prison before the end of the mandatory term. Therefore, because Tutt’s

plea was made on the basis of inaccurate information, it could not have been knowingly,

intelligently, or voluntarily.
       {¶17} Therefore, the first assignment of error is sustained.

       {¶18} Having determined that Tutt’s plea was not made knowingly, intelligently,

or voluntarily and must be vacated, the remaining assignments of error, which relate to

sentencing and the effectiveness of trial counsel are moot.

       {¶19} Judgment reversed. Tutt’s plea is vacated and the case is remanded to the

trial court for further proceedings.

       It is ordered that appellant recover from appellee 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.



EILEEN T. GALLAGHER, PRESIDING JUDGE

MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR
