[Cite as State v. Rogers, 2016-Ohio-1382.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103227
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT ROGERS
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-592218-A
BEFORE: Kilbane, J., Keough, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 31, 2016
ATTORNEY FOR APPELLANT
Michael P. Maloney
24441 Detroit Road
Suite 200
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Gregory J. Ochocki
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Robert Rogers (“Rogers”), appeals from his guilty
plea and sentence for operating a vehicle under the influence of alcohol or drugs (“OVI”),
in violation of R.C. 4511.19(A)(1)(a). The state concedes that Rogers’s sentence is
contrary to the Ohio Supreme Court’s decision in State v. South, 144 Ohio St.3d 295,
2015-Ohio-3930, 42 N.E.2d 734. Having reviewed the record and the controlling case
law, we agree that Rogers must be resentenced. Therefore, we affirm his conviction,
vacate his sentence, and remand the matter for resentencing.
{¶2} In January 2015, Rogers was charged with two counts of OVI. Count 1
was brought pursuant to R.C. 4511.19(A)(1)(a) (operating under the influence) and
carried a furthermore clause stating Rogers’s previous OVI conviction in CR-05-470506
and the forfeiture of his vehicle. Count 2 was brought pursuant to R.C. 4511.19(A)(1)(d)
(alcohol concentration of eight-hundredths of one gram or more but less than
seventeen-hundredths of one gram) and carried a furthermore clause stating Rogers’s
previous conviction in CR-05-470506 and a forfeiture specification of his vehicle. Both
counts were third-degree felonies because of Rogers’s previous felony conviction in
violation of R.C. 4511.19.1
1A review of the record reveals that Rogers was previously convicted of OVI
six other times, spanning from 1984-1999.
{¶3} Pursuant to a plea agreement, Rogers pled guilty to Count 1 and forfeited
his vehicle. In exchange, the state nolled Count 2. The trial court sentenced Rogers to
five years in prison, including a mandatory 60 days of imprisonment. The court also
sentenced him to three years postrelease control.
{¶4} Rogers now appeals, raising the following two assignments of error for
review.
Assignment of Error One
The trial court imposed a sentence contrary to law.
Assignment of Error Two
[Rogers’s] guilty plea was not knowingly and voluntarily entered.
Sentence
{¶5} In the first assignment of error, Rogers contends and the state concedes that
the proper sentencing range for his sentence is between nine to thirty-six months, as set
forth by the Ohio Supreme Court in South,144 Ohio St.3d 295, 2015-Ohio-3930, 42
N.E.2d 734
{¶6} In South, the defendant was charged with one count of OVI, in violation of
R.C. 4511.19(A)(1)(a), a third-degree felony, and a repeat-offender specification under
R.C. 2941.1413; one count of OVI, in violation of R.C. 4511.19(A)(1)(d), a third-degree
felony; and one count of driving under suspension, in violation of R.C. 4510.11, a
first-degree misdemeanor. The jury returned a guilty verdict on each count, including the
specification. Id. at ¶ 2.
{¶7} The trial court merged the two OVI counts for sentencing purposes. The
court imposed a three-year sentence for the specification, plus an additional, consecutive
five-year sentence for the underlying OVI offense. The court characterized both counts
as “mandatory.” Id. at ¶ 3. South appealed to the Ninth District Court of Appeals,
which vacated his sentence, holding that it was contrary to law. Id. at ¶ 4. The Ninth
District found that South’s sentence “‘had to consist of a one- to five-year mandatory
prison term on his specification[,] R.C. 4511.19(G)(1)(e)(i), ‘and a prison term’ of any
duration specified in division (A)(3) of [R.C. 2929.14].’” Id. at ¶ 4, quoting State v.
South, 9th Dist. Summit No. 26967, 2014-Ohio-374, ¶ 17, quoting R.C. 2929.14(B)(4).
Because the trial court’s five-year sentence exceeded the permissible maximum under
R.C. 2929.14(A)(3)(b), the Ninth District vacated the sentences related to his underlying
OVI conviction and the specification, and remanded the matter to the trial court for
resentencing. Id. at ¶ 4.
{¶8} On appeal to the Ohio Supreme Court, the South court addressed the interplay
of R.C. 4511.19, 2941.1413, 2929.13, and 2929.14 and found that the permissible
sentencing range for a third-degree-felony-OVI is “a discretionary 9- to 36-month definite
prison term for the underlying OVI conviction.” Id. at ¶ 19. The court stated:
R.C. 2929.14 applies if a sentencing court elects or is required to impose a
prison term. R.C. 2929.14(A)(3)(a) provides that for a felony of the third
degree that is a violation of listed offenses not at issue here, the term “shall
be” in the range of 12 to 60 months. But for third-degree-felony offenses
not listed in division (A)(3)(a), “the prison term shall be nine, twelve,
eighteen, twenty-four, thirty, or thirty-six months.” R.C. 2929.14(A)(3)(b).
R.C. 2929.14(B)(4) also provides:
If the offender is being sentenced for a third or fourth degree felony OVI
offense under [R.C. 2929.13(G)(2)], the sentencing court shall impose upon
the offender a mandatory prison term in accordance with that division. In
addition to the mandatory prison term, * * * if the offender is being
sentenced for a third degree felony OVI offense, the sentencing court may
sentence the offender to an additional prison term of any duration specified
in division (A)(3) of this section.
Again, several points are important. First, because the underlying OVI
offense at issue here is not one of the excepted third-degree felonies listed
in R.C. 2929.14(A)(3)(a), subsection (A)(3)(b) provides a sentence of 9 to
36 months for that offense. Second, R.C. 2929.14(B)(4) repeats the
requirement of imposing a one- to five-year sentence arising from R.C.
2929.13(G)(2) and the specification conviction. And finally, for those
specification-offenders sentenced under R.C. 2929.13(G)(2),
R.C. 2929.14(B)(4) expressly states that for third-degree-felony-OVI
offenses, a sentencing court may impose “an additional prison term of any
duration specified” in R.C. 2929.14(A)(3), that is, a sentence of 9 to 36
months for the underlying OVI offense.
Id. at ¶ 16-18.
{¶9} The South court applied the foregoing to South’s sentence and found that his
specification-related sentence — a mandatory three-year prison term — was not contrary
to law because courts must impose a prison term of one, two, three, four, or five years for
the R.C. 2941.1413 specification conviction. Id. at ¶ 23, citing R.C. 4511.19(G)(1)(e)(i)
and 2929.13(G)(2). The court found South’s five-year mandatory sentence for the
underlying OVI conviction was contrary to law because R.C. 2929.14(A)(3)(b) provides
that any additional prison term for an underlying third-degree-felony-OVI conviction
must be nine, twelve, eighteen, twenty-four, thirty, or 36 months. Id. at ¶ 24.
{¶10} Subsequently, the court reinstated South’s mandatory three-year prison
sentence associated with his repeat-offender-specification conviction, and remanded the
matter to the trial court for resentencing on the underlying OVI conviction in accordance
with R.C. 2929.14(A)(3)(b). Id. at ¶ 27.
{¶11} In applying South to the instant case, we agree with Rogers and the state that
Rogers’s sentence is contrary to law. See also State v. Mericsko, 8th Dist. Cuyahoga No.
102262, 2015-Ohio-4489 (where we applied South and found that defendant’s sentence
was contrary to law because defendant received a five-year mandatory term on the
repeat-offender OVI specification, R.C. 2941.1413, to be served prior to and consecutive
with a 120-day prison term for the underlying OVI conviction, but under R.C.
4511.19(G)(1)(e)(ii), the 120-day prison term was applicable only if defendant was not
convicted of the repeat offender specification.) Therefore, we vacate Rogers’s sentence
and remand the matter for resentencing Rogers to: (1) the mandatory 60-day consecutive
prison term, and (2) a discretionary prison term of nine, twelve, eighteen, twenty-four,
thirty, or thirty-six months.
{¶12} Accordingly, the first assignment of error is sustained.
Guilty Plea
{¶13} In the second assignment of error, Rogers challenges the knowing and
voluntary nature of his guilty plea and argues that the trial court failed to ensure he
understood that he was not eligible for community control sanction.
{¶14} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527,
1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea
was knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for
nonconstitutional issues, such as in the matter before us, is substantial compliance, and
strict compliance for constitutional issues. State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163
(1977). “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.” Nero at 109. In addition, when challenging his guilty plea based on the trial
court’s lack of substantial compliance, a defendant must also show a prejudicial effect —
that the plea would not have been otherwise entered but for the error. State v. Clark, 119
Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15.
{¶15} Crim.R. 11(C)(2)(a) requires that the trial court determine that “the
defendant is making the plea * * * with understanding 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.”
{¶16} With regard to Rogers’s eligibility for community control sanctions and his
mandatory prison sentence, the trial court advised Rogers of the following:
COURT: Mr. Rogers, the charge of driving while under the influence as
indicted in Count 1 is a felony of the third degree. As we’ve stated, under
OVI laws this case is punishable by a prison term of 60 days up to five
years. It also carries with it a possible fine anywhere from $1,350 to
$10,500. It also requires a Class II driving suspension, which is anywhere
from three months to life.
***
COURT: Do you also understand that this count carries with it a forfeiture
of the vehicle used?
ROGERS: Yes, Your Honor.
COURT: Okay. Do you each understand that if the Court grants
community control sanctions, otherwise known as probation, you would
have to comply with all the conditions set forth by this Court and the
probation department, and failure to do so would result in the imposition of
a prison term?
ROGERS: Yes, Your Honor.
***
COURT: Do you understand that if a prison term is imposed, you must
serve the time as announced by the Court without any reduction in time for
good behavior?
ROGERS: Yes, ma’am.
{¶17} Rogers contends that based on the foregoing, he could have readily believed
that he was eligible for community control sanctions when he was facing a mandatory
minimum of 60 days in prison. However, Rogers has not demonstrated, nor even argued,
that he would not have entered the guilty plea but for the perceived lack of advisement.
As this court has previously held “‘even if the [trial] court failed to substantially comply
with explaining the effects of his plea,’ the defendant still has to prove that he was
prejudiced by the court’s failure.” State v. Mannarino, 8th Dist. Cuyahoga No. 98727,
2013-Ohio-1795, ¶ 15, quoting State v. Simonoski, 8th Dist. Cuyahoga No. 98496,
2013-Ohio-1031. Here, Rogers has not demonstrated, nor argued, prejudice.
{¶18} Moreover, the record demonstrates Rogers was aware that he was ineligible
for community control sanctions and was advised of the mandatory 60-day sentence right
before entering his guilty plea. We recognize that a defendant may learn of information
not relayed to him by the trial court but from other sources, such as his attorney. State v.
McCown, 8th Dist. Cuyahoga No. 69683, 1996 Ohio App. LEXIS 4801, *19 (Oct. 31,
1996). The record demonstrates that at the plea hearing the state advised Rogers of the
mandatory prison sentence: “[a]nd, Your Honor, I would also state on the record the
penalties for a third degree felony OVI. There is a bit of a conflict regarding the
sentencing. Under the OVI laws there’s a mandatory minimum of 60 days prison[.]”
Similarly, defense counsel informed the trial court that Rogers was aware of the
mandatory prison term he faced: “Judge, he knows he’s going to be remanded and he’s
prepared to go forward and withdraw his previously entered not guilty plea and he’ll be
entering a guilty plea as outlined[.] My client and I have had a number of discussions.
He is fully aware of what he’s pleading to and he is also aware of what the possible
sentence may be.” In addition, at no time during the proceedings did Rogers express
confusion or a lack of understanding regarding the nature of his plea.
{¶19} Thus, the totality of the circumstances demonstrate that the trial court
substantially complied with Crim.R. 11 and Rogers’s plea was entered knowingly and
voluntarily.
{¶20} Therefore, the second assignment of error is overruled.
{¶21} Accordingly, Rogers’s conviction is affirmed, his sentence is vacated, and
the matter is remanded to the trial court for resentencing on his third-degree-felony-OVI
conviction.
It is ordered that appellee and appellant share 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR