[Cite as State v. Otterbacher, 2015-Ohio-4680.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102644




                                            STATE OF OHIO

                                                           PLAINTIFF-APPELLEE

                                                     vs.

                                    ASHLEY A. OTTERBACHER

                                                           DEFENDANT-APPELLANT




                                                  JUDGMENT:
                                                   AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-14-584369-A

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

        RELEASED AND JOURNALIZED: November 12, 2015
ATTORNEY FOR APPELLANT

Thomas A. Rein
700 West St. Clair, Suite 212
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Marcus A. Henry
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Ashley Otterbacher (“Otterbacher”), challenges the validity of

her no contest plea to endangering children, raising the following assignment of error for review:

       1. Appellant did not enter her plea knowingly, intelligently, or voluntarily
       because the trial court failed to properly inform her of the maximum penalties as
       required by Crim.R. 11(C)(2)(a).

       {¶2} After careful review of the record and relevant case law, we affirm Otterbacher’s

conviction.

                                    I. Procedural History

       {¶3} In January 2015, Otterbacher withdrew her former plea of not guilty and entered a

plea of no contest to endangering children in violation of R.C. 2919.22(A), as charged in a

one-count indictment. At the plea hearing, the trial court learned that Otterbacher was on

community control for unrelated offenses in the Cleveland Municipal Court.           Following a

Crim.R. 11 colloquy, the trial court accepted Otterbacher’s plea and found her guilty.          In

February 2015, the trial court sentenced Otterbacher to 180 days in jail, suspended 120 days, and

credited Otterbacher with 60 days of time served.          The court also placed Otterbacher on

community control for a period of two years.

       {¶4} Otterbacher now appeals from her no contest plea.

                                     II.   Law and Analysis

                                           A. Crim.R. 11

       {¶5} In her sole assignment of error, Otterbacher argues her no contest plea was invalid

because the trial court failed to properly inform her of the maximum penalties as required by

Crim.R. 11(C)(2)(a).
          {¶6} Crim.R. 11 requires a court to satisfy several requirements before accepting a guilty

or no contest plea in a criminal case.    Relevant to the present case, Crim.R. 11(C)(2)(a) states:

          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:

          (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.

          {¶7} In determining whether the trial court has satisfied its duties in accepting a plea

under Crim.R. 11, reviewing courts distinguish between constitutional and nonconstitutional

rights.    State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 474, ¶ 14-21. The

trial court must strictly comply with the requirements of Crim.R. 11(C) relating to the waiver of

constitutional rights.    Id. at ¶ 18.

          {¶8} As to the nonconstitutional aspects of Crim.R. 11(C), the trial court must

“substantially comply” with the rule’s requirements. Veney at ¶ 14. “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, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990).

          {¶9} The right to be informed at the plea hearing of the maximum possible penalty that

could be imposed upon conviction is a nonconstitutional right. State v. McKissic, 8th Dist.

Cuyahoga Nos. 92332 and 92333, 2010-Ohio-62, ¶ 13, citing State v. Stewart, 51 Ohio St.2d 86,

93, 364 N.E.2d 1163 (1977). Accordingly, the trial court’s actions are reviewed for substantial

compliance.
        {¶10} In this case, Otterbacher argues the trial court failed to advise her of the maximum

penalties she faced as a result of violating the terms of community control in her municipal court

case.   Otterbacher specifically contends that the “trial court at no time advised [her] that the

other court could sentence [her] to incarceration as a result of her plea and conviction.”

        {¶11} Contrary to Otterbacher’s position, however, this court has previously held that the

term “‘maximum penalty’ refers to the charge to which the defendant is pleading guilty or no

contest.”    (Emphasis added.)        State v. Cummings, 8th Dist. Cuyahoga No. 89093,

2007-Ohio-6305, ¶ 7, citing State v. Flint, 36 Ohio App.3d 4, 520 N.E.2d 580 (8th Dist.1986);

State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988).                 Thus, under Crim.R.

11(C)(2)(a), a trial court is only required to inform a defendant of the maximum penalty

associated with the charge to which he or she is entering a plea of guilty or no contest. See

Cummings at ¶ 9 (“a trial court is not required to inform a defendant who is currently on parole of

both the maximum sentence for the charge to which he is pleading guilty or no contest and a

potential sentence for a parole violation.”)

        {¶12} Applying the foregoing to the case sub judice, the trial court’s obligation to inform

Otterbacher of the “maximum penalty” refers to the child endangering count to which

Otterbacher pleaded no contest. With respect to that count, the record reflects that the trial

court complied with its obligations under Crim.R. 11(C)(2)(a).         Specifically, the trial court

advised Otterbacher that by pleading no contest to a fourth-degree felony, it was entitled to place

her on community control for up to five years and order her to serve up to 180 days in the county

jail as part of her community control sanctions. The trial court further advised Otterbacher that,

in its discretion, it was entitled to impose a prison term of six to eighteen months, up to three

years of postrelease control following completion of the sentence, and a fine of $5,000.
               {¶13} Although we reiterate that the trial court was only required to address the

       maximum penalties associated with the endangering children count, we note that the trial court

       appropriately considered all relevant factors, including Otterbacher’s pending community control

       sanctions, when ensuring that Otterbacher understood the ramifications of her no contest plea:

       COURT: Are you on Community Control Sanctions, usually known as probation, in any other
       case?

       DEFENDANT: Yes.

       COURT: Is that case before me or another judge?

       DEFENDANT: Another judge.

       COURT: Is that municipal court or county court?

       DEFENDANT: Municipal.

       COURT: Okay. By entering a plea today, that may be a violation in that court. That could be
       up to that judge to decide if he or she’s going to do anything; I don’t have any control over that.
       Do you understand that?

       DEFENDANT: Yeah.

       COURT: Are you willing to go forward on that basis?

       DEFENDANT: Yes.

       {¶14} Under these circumstances, we find that the trial court’s advisement was sufficient to adequately

inform Otterbacher that her no contest plea in this case could adversely impact her community control in the

municipal court. See State v. Richardson, 8th Dist. Cuyahoga No. 100838, 2014-Ohio-2984.

       {¶15} Based on the foregoing, we conclude that Otterbacher’s no contest plea was knowingly,

intelligently, and voluntarily made.

       {¶16} Otterbacher’s sole assignment of error is overruled.

                                                III. Conclusion
       {¶17} The trial court complied with Crim.R. 11 when it properly explained the maximum

penalty involved for the charge presently before the court.

       {¶18} Judgment affirmed.

       It is ordered that appellee recover from appellant 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, JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
