State v. Durrette

[Cite as State v. Durrette, 2017-Ohio-7314.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104050

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

BRANDON TYRONE DURRETTE
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-595754-A and CR-15-600742-A

BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: August 24, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Edward R. Fadel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Brandon Durrette (“appellant”), brings this appeal

challenging his convictions and sentences for various counts in two separate cases.

Specifically, appellant argues that his guilty pleas were not knowingly, voluntarily, and

intelligently entered, his trial counsel provided ineffective assistance, the trial court’s

sentence is contrary to law, and the trial court abused its discretion by denying his

postsentence motion to withdraw his guilty pleas. After a thorough review of the record

and law, this court affirms.

I. Factual and Procedural History

{¶2} Appellant pled guilty in two separate cases to crimes related to a string of

armed robberies in the Tremont neighborhood of Cleveland. First, in Cuyahoga C.P.

No. CR-15-595754-A, appellant pled guilty to eight counts of aggravated robbery, two

counts of felonious assault, six counts of having weapons while under disability, two drug

trafficking counts, one drug possession count, one count of misusing a credit card, and

one count of receiving stolen property. Furthermore, appellant pled guilty to ten

one-year firearm specifications. Second, in Cuyahoga C.P. No. CR-15-600742-A,

appellant pled guilty to two counts of aggravated robbery, both of which contained

one-year firearm specifications, and one count of having weapons while under disability.

{¶3} On December 17, 2015, the trial court held a sentencing hearing during which

appellant was sentenced in both criminal cases.1 In CR-15-595754-A, the trial court

1 Appellant was also sentenced for violating probation in two additional criminal cases:
sentenced appellant to an aggregate 25-year prison term. In CR-15-600742-A, the trial

court sentenced appellant to an aggregate 5-year prison term. The trial court ordered

appellant’s sentences in the two cases to run concurrently.

{¶4} On January 26, 2016, appellant filed an appeal challenging his guilty pleas

and the trial court’s sentence. This court granted appellant’s motion to remand the

matter to the trial court so that he would have an opportunity to file a motion to vacate his

guilty pleas.

{¶5} Appellant filed a motion to vacate his guilty pleas on September 7, 2016.

The trial court denied appellant’s motion to vacate his guilty pleas on December 1, 2016.

{¶6} Appellant assigns five errors for review:

I. [Appellant’s] plea was not knowingly and intelligently entered because
the plea was largely induced by the State’s offer to delete specifications
subsequently found to violate the State and Federal Constitutions in State v.
Hand, [149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448].

II. The sentence imposed is contrary to law because it fails to comply with
the purposes of the Ohio Sentencing Statutes.

III. [Appellant’s] guilty plea is invalid because he did not enter it
knowingly, intelligently, and voluntarily.

IV. [Appellant] received ineffective assistance of counsel in connection
with his guilty plea.

V. The trial court abused its discretion by failing to allow [appellant] to

withdraw his guilty plea where the evidence he submitted in support of the

motion established a manifest injustice.

CR-13-579896-A and CR-13-575274-A.
For ease of discussion, we will address appellant’s assignments of error out of order.

II. Law and Analysis

A. Guilty Pleas

{¶7} Appellant’s first, third, and fifth assignments of error relate to his guilty

pleas.

1. Knowingly, Intelligently, and Voluntarily Entered

{¶8} In his first assignment of error, appellant argues that his guilty pleas were not

knowingly, intelligently, and voluntarily entered because the state induced him to enter

the pleas by deleting the underlying notice of prior conviction specifications that should

not have been charged in the indictment pursuant to Hand.

{¶9} In Hand, the Ohio Supreme Court held that it “is a violation of due process to

treat a juvenile adjudication as the equivalent of an adult conviction for purposes of

enhancing a penalty for a later crime.” Id. at ¶ 1. The court explained,

[t]reating a juvenile adjudication as an adult conviction to enhance a

sentence for a later crime is inconsistent with Ohio’s system for juveniles,

which is predicated on the fact that children are not as culpable for their

acts as adults and should be rehabilitated rather than punished. It is widely

recognized that juveniles are more vulnerable to outside pressures,

including the pressure to admit to an offense. Under [Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)], using a

prior conviction to enhance a sentence does not violate the constitutional
 right to due process, because the prior process involved the right to a jury

trial. Juveniles, however, are not afforded the right to a jury trial. Quite

simply, a juvenile adjudication is not a conviction of a crime and should not

be treated as one.

Hand at ¶ 38.

{¶10} In the instant matter, appellant essentially argues that he bargained for

nothing and received no benefit from the plea agreements because the notice of prior

conviction specifications that the state agreed to delete should not have been charged

against him in the first place. Appellant’s argument is unsupported by the record.

{¶11} Initially, we note that appellant was indicted in CR-15-595754-A on June 4,

2015, and pled guilty on November 17, 2015. Appellant was charged in an information

in CR-15-600742-A on November 9, 2015, and pled guilty on December 10, 2015.

Appellant was sentenced in both cases on December 17, 2015. The Ohio Supreme

Court’s decision in Hand, however, was not issued until August 25, 2016. Thus, the

notice of prior conviction specifications were valid and constitutional when appellant was

charged, during pretrial proceedings and plea negotiations, when appellant pled guilty,

and when he was sentenced.

{¶12} Additionally, we find that the deletion of the notice of prior conviction

specifications was not the only benefit that appellant received from the plea agreements.

In CR-15-595754-A, the state also agreed to dismiss one count of aggravated robbery,

one count of having weapons while under disability, nine counts of kidnapping, and the
three-year firearm specifications charged in Counts 1, 2, 4-7, 9-12, 14-19, 21, 22, 25, and

26. In CR-15-600742-A, the state also agreed to dismiss the three-year firearm

specifications charged in Counts 1 and 2.

{¶13} For all of these reasons, appellant’s first assignment of error is overruled.

{¶14} In his third assignment of error, appellant argues that his guilty plea was not

knowingly, intelligently, and voluntarily entered because he did not have full knowledge

of his sentencing exposure. Appellant cites State v. Engle, 74 Ohio St.3d 525, 660

N.E.2d 450 (1996), for the proposition that it is unconstitutional to enforce a guilty plea

that is entered without full knowledge of the sentencing exposure involved.

{¶15} Appellant submitted an affidavit along with his motion to withdraw the

guilty pleas. Therein, he claimed that he did not know that he could receive such a

lengthy prison sentence by pleading guilty:

I was shocked to be sentenced to a term of 25 years in prison. I would not

have pled guilty if I thought that I would face a 25-year prison sentence as a

result of my plea. When I pled guilty, my attorneys led me to believe that

the plea deal was such that I would no longer be facing mandatory time.

{¶16} Appellant acknowledges that his sentencing exposure was discussed on the

record. In fact, the record reflects that appellant was advised of the mandatory time he

faced as a result of pleading guilty. During the change of plea hearings in both cases,

the trial court thoroughly outlined the minimum and maximum sentences appellant could

receive for each of the counts to which he pled guilty. During the change of plea
hearing in CR-15-600742-A, the trial court advised appellant that he faced a mandatory

two-year prison sentence for his firearm specifications underlying the aggravated robbery

counts. (Tr. 62.) Furthermore, one of appellant’s attorneys stated that appellant

“certainly could be exposed to much more prison time than the mandatory two-year

sentence for the firearm specifications. He and I have talked about that.” (Tr. 47.)

{¶17} To the extent that appellant claims that he pled guilty because his attorneys

led him to believe that he would receive a shorter sentence, this court has previously held

that a lawyer’s mistaken prediction about the likelihood of a particular sentence is

insufficient to demonstrate ineffective assistance of counsel. State v. Bari, 8th Dist.

Cuyahoga No. 90370, 2008-Ohio-3663, ¶ 11; State v. Williams, 8th Dist. Cuyahoga No.

88737, 2007-Ohio-5073.

{¶18} Appellant does not argue, much less demonstrate, that the trial court failed

to comply with Crim.R. 11 in accepting his guilty pleas. Furthermore, appellant does

not argue, much less demonstrate, that he was coerced or threatened into pleading guilty.

The trial court engaged in a thorough Crim.R. 11 colloquy with appellant, explained the

constitutional rights that appellant was giving up by entering the pleas, and ensured that

appellant understood the effects — including the potential sentences — of pleading

guilty.

{¶19} For all of these reasons, appellant’s third assignment of error is overruled.

2. Motion to Withdraw Guilty Pleas

{¶20} In his fifth assignment of error, appellant argues that the trial court erred by
denying his postsentence motion to withdraw the guilty pleas.

{¶21} Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.” A defendant who seeks to withdraw a guilty plea after the

imposition of sentence has the burden of establishing the existence of manifest injustice.

State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.

{¶22} “Manifest injustice relates to some fundamental flaw in the proceedings

which result[s] in a miscarriage of justice or is inconsistent with the demands of due

process.” State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5.

Manifest injustice has been defined as a “clear or openly unjust act.” State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). Under the

manifest injustice standard, a postsentence motion to withdraw a plea is permitted “only

in extraordinary cases.” State v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 61

(8th Dist.), citing Smith at 264.

{¶23} The determination of whether the defendant has met his or her burden of

establishing “a manifest injustice” is within the sound discretion of the trial court. State

v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 42 (8th Dist.), citing Smith at paragraph

two of the syllabus. Therefore, we will not reverse a trial court’s decision to deny a

defendant’s postsentence motion to withdraw a guilty plea absent an abuse of the court’s

discretion. Id. An abuse of discretion occurs where the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

{¶24} In the instant matter, appellant claims that the lengthy prison sentence he

received constitutes a manifest injustice. His argument is unsupported by the record.

{¶25} In denying appellant’s motion to withdraw his guilty pleas, the trial court

stated, in relevant part,

appellant’s claims that he was misinformed about his sentence exposure and

unaware that he faced mandatory prison time are unsupported by the

documents submitted on his behalf. The transcripts establish that this

court fully advised appellant of the consequences of his plea and that this

court complied with Crim.R. 11 concerning advising appellant of all the

possible potential penalties and that he faced mandatory prison sentences.

{¶26} After reviewing the record, it is evident that appellant failed to meet his

burden of establishing a manifest injustice. This is not an extraordinary case that

warrants withdrawal of appellant’s guilty pleas. The trial court’s sentence does not

constitute a clear or openly unjust act.

{¶27} As set forth in further detail below, the trial court’s sentence is not contrary

to law. The trial court sentenced appellant within the permissible statutory ranges and

considered the principles and purposes of felony sentencing set forth in R.C. 2929.11 and

2929.12. The record reflects that appellant was sentenced for offenses he committed

during a crime spree that consisted of seven different incidents and victimized ten people.
 Two of the ten victims were 14 years old. Appellant engaged in a pattern of robbing

people in the Tremont area at gunpoint. The victims, many of which submitted victim

impact statements, were traumatized by appellant’s actions.

{¶28} After knowingly, intelligently, and voluntarily pleading guilty, appellant

cannot move to withdraw his guilty pleas merely because he was unhappy with the

sentence he received. Accordingly, appellant’s fifth assignment of error is overruled.

B. Ineffective Assistance

{¶29} In his fourth assignment of error, appellant argues that his trial counsel

provided ineffective assistance.

{¶30} To establish ineffective assistance of counsel, a defendant must demonstrate

(1) that counsel’s performance fell below an objective standard of reasonable

representation and (2) that he was prejudiced by that performance. Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice

is established when the defendant demonstrates “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

{¶31} In the instant matter, appellant asserts that his trial counsel’s performance

was deficient in two ways: (1) failing to accurately advise him of the sentencing exposure

that he faced, and (2) failing to fully present the relevant mitigating information/factors at

sentencing.
 {¶32} First, regarding counsel’s advice about sentencing exposure, there are no

allegations that the court failed to advise appellant of the possible penalties for the

charged offenses. Rather, appellant simply claims that his counsel did not inform him

that such a lengthy prison sentence was possible. As noted above, this court has

previously held that a lawyer’s mistaken prediction about the likelihood of a particular

sentence is insufficient to demonstrate ineffective assistance of counsel. Furthermore,

contrary to his assertions that he was misled or induced in entering his pleas, the record

reflects otherwise. The record shows that the plea agreements, including the possible

sentences, were placed on the record and appellant assented to them.

{¶33} Second, regarding the mitigating information/factors, which are discussed in

further detail below, appellant contends that his trial counsel failed to explore the true

extent of his personal circumstances. The record reflects that both of appellant’s

attorneys addressed the applicable and relevant mitigating factors at sentencing.

{¶34} One of appellant’s attorneys discussed the issue of appellant’s brain

development, the fact that appellant grew up without a father figure, appellant’s bipolar

and ADHD diagnoses, appellant’s substance abuse issues, the fact that appellant accepted

responsibility for his actions and expressed remorse, and the fact that none of the victims

sustained physical injuries. Appellant’s other attorney discussed appellant’s mental

health diagnoses, the hardships he faced during his childhood, appellant’s substance

abuse issues, and the fact that appellant grew up without a mother or father figure.

{¶35} Accordingly, both of appellant’s attorneys discussed the relevant mitigating
factors at sentencing. Appellant’s attorneys did not provide ineffective assistance

simply because appellant claims that their discussion of the mitigating factors could have

been more thorough.

{¶36} For all of these reasons, appellant’s fourth assignment of error is overruled.

C. Trial Court’s Sentence

{¶37} In his second assignment of error, appellant argues that the trial court’s

sentence is contrary to law.

{¶38} When reviewing felony sentences, the reviewing court does not review the

sentence for an abuse of discretion. R.C. 2953.08(G)(2); see also State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. Rather, this court may increase,

reduce, modify a sentence, or vacate and remand for resentencing if the court clearly and

convincingly finds that the record does not support the sentencing court’s statutory

findings under R.C. 2929.14(C)(4) or the sentence is contrary to law. State v. Wenmoth,

8th Dist. Cuyahoga No. 103520, 2016-Ohio-5135, ¶ 12, citing R.C. 2953.08(G)(2). A

sentence is contrary to law if the trial court fails to consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.

2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.

{¶39} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing

are (1) to protect the public from future crime by the offender and others; and (2) to

punish the offender using the minimum sanctions that the court determines will

accomplish those purposes without imposing an unnecessary burden on state or local
government resources. Further, the sentence imposed shall be “commensurate with and

not demeaning to the seriousness of the offender’s conduct and its impact on the victim,

and consistent with sentences imposed for similar crimes by similar offenders.” R.C.

2929.11(B).

{¶40} R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial

court must consider when determining the seriousness of the offense and the likelihood

that the offender will commit future offenses. The court that imposes a felony sentence

has the discretion to determine the most effective way to comply with the purposes and

principles of sentencing. R.C. 2929.12(A).

{¶41} Although the trial court has a mandatory duty to “consider” the statutory

factors under R.C. 2929.11 and 2929.12, the court is not required to engage in any factual

findings under R.C. 2929.11 or 2929.12. State v. Combs, 8th Dist. Cuyahoga No.

99852, 2014-Ohio-497, ¶ 52; State v. Bement, 8th Dist. Cuyahoga No. 99914,

2013-Ohio-5437, ¶ 17. “While trial courts must carefully consider the statutes that apply

to every felony case, it is not necessary for the trial court to articulate its consideration of

each individual factor as long as it is evident from the record that the principles of

sentencing were considered.” State v. Gonzalez, 8th Dist. Cuyahoga No. 102579,

2015-Ohio-4765, ¶ 6, citing State v. Roberts, 8th Dist. Cuyahoga No. 89236,

2008-Ohio-1942, ¶ 10. This court has held that a trial court’s statement in its sentencing

entry that it considered the required statutory factors, without more, is sufficient to fulfill

a sentencing court’s obligations under R.C. 2929.11 and 2929.12. Gonzalez at ¶ 7.
 {¶42} In the instant matter, appellant directs this court to State v. Long, 138 Ohio

St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, where the Ohio Supreme Court held that a trial

court, in exercising its sentencing discretion, “must separately consider the youth of a

juvenile offender as a mitigating factor before imposing a sentence of life without parole”

and that “[t]he record must reflect that the court specifically considered the juvenile

offender’s youth as a mitigating factor at sentencing when a prison term of life without

parole is imposed.” Id. at paragraphs one and two of the syllabus. The court

emphasized the fundamental differences between juvenile and adult minds that render

juveniles constitutionally different from adults for purposes of sentencing.

{¶43} Here, appellant asserts that this rationale — that juveniles are less

deserving of the most severe punishments than adults — should be applied to him

because he was in his early twenties when he committed the offenses to which he pled

guilty. This court faced similar arguments in Vinson, 2016-Ohio-7604, 73 N.E.3d 1025

(8th Dist.), and State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135 (8th Dist.).

{¶44} In Vinson, the defendant-appellant was 18 years old at the time he

committed the offenses. This court emphasized that the appellant was not a juvenile

offender, explaining:

the United States Supreme Court has explicitly identified age 18 as the

“bright-line” divide between juveniles and adults when considering

developmental differences for sentencing purposes. “Juvenile offenders”

are those who were younger than 18 at the time they committed their
 offenses; offenders who were 18 or older at the time the committed their

offenses are adult offenders. Vinson was 18 at the time he committed the

crimes at issue. He was an adult. Therefore, the Long rationale does not

apply to him and he was not entitled to the special sentencing

considerations afforded juvenile offenders.

Id. at ¶ 51.

{¶45} In Nitsche, the defendant-appellant was 23 years old at the time he

committed the offenses. Appellant argued that the rationale that juveniles are less

deserving of the most severe punishments should be applied to him because he was a

young adult with a dysfunctional upbringing. This court rejected the appellant’s

argument, explaining that the appellant was not a juvenile offender, and that he

committed the crimes at the age of 23.

{¶46} In the instant matter, appellant committed the offenses to which he pled

guilty at the age of 21. Like Vinson and Nitsche, appellant is not a juvenile offender,

and he is not entitled to the special sentencing considerations provided to juvenile

offenders. Accordingly, appellant’s reliance on the Ohio Supreme Court’s holding in

Long is misplaced.

{¶47} Appellant further argues that the trial court failed to take into consideration

the following mitigating factors: (1) his life has been influenced by trauma, instability,

psychological and medical conditions, substance abuse, neglect, and abandonment; (2) he

had no relationship with his father and his mother went to prison when he was 16 years
old; (3) he was abused during his childhood; (4) his mental functioning is at a mild mental

retardation range; (5) he had been diagnosed with ADHD; and (6) he committed the

offenses from which the instant appeal arose at the age of 21. Appellant’s argument is

unsupported by the record.

{¶48} After reviewing the record, it is evident that the trial court’s sentence is not

contrary to law. Initially, we note that appellant does not argue that any of his sentences

were outside the permissible statutory ranges set forth in R.C. 2929.14(A). Furthermore,

appellant does not challenge the trial court’s imposition of consecutive sentences under

R.C. 2929.14(C)(4). Instead, appellant argues that the trial court failed to take the

mitigating factors into consideration in imposing its sentence.

{¶49} As noted above, appellant’s attorneys advised the trial court of the relevant

mitigating factors at sentencing. Prior to imposing its sentence, the trial court indicated

that it took these statements into consideration.

{¶50} The trial court’s sentencing journal entry provides, in relevant part, “the

court considered all required factors of the law. The court finds that prison is consistent

with the purpose of R.C. 2929.11.” Aside from the trial court’s notation in its journal

entry, the record reflects that the trial court did, in fact, consider the principles and

purposes of felony sentencing set forth in R.C. 2929.11 and 2929.12 in imposing its

sentence.

{¶51} During the sentencing hearing, the trial court explained,

for sentencing purposes, I have to follow the same guidelines and
procedures. I have to look to the seriousness of the charges and whether
 or not those circumstances are more serious than what the typical or
expected charge could be or whether its less serious because there are some
mitigating circumstances or other factors that indicate that while it’s a
serious charge, it is mitigated by those circumstances and events, and that
has to be accomplished with regard to each one of the cases and each one of
the counts before the court. The other main component for consideration
is the likelihood of whether or not the defendant is likely to have another
case in the future.

(Tr. 122-123.) The trial court considered the presentence investigation report, which

found that appellant had a very high likelihood of reoffending in the future.

Furthermore, the trial court considered the statements made during the sentencing hearing

and the victim impact statements.

{¶52} For all of these reasons, the trial court’s sentence is not contrary to law.

Accordingly, appellant’s second assignment of error is overruled.

III. Conclusion

{¶53} After thoroughly reviewing the record, we find that appellant’s guilty pleas

were entered knowingly, intelligently, and voluntarily; the trial court did not abuse its

discretion by denying appellant’s postsentence motion to withdraw his guilty pleas;

appellant’s trial counsel did not provide ineffective assistance; and the trial court’s

sentence is not contrary to law.

{¶54} Judgment affirmed.

It is ordered that appellee recover of 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. 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.

FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS;
PATRICIA ANN BLACKMON, J., DISSENTS (WITH SEPARATE OPINION)

PATRICIA ANN BLACKMON, J., DISSENTING:

{¶55} I respectfully dissent. The use of a prior adjudication to enhance the

sentence of an adult offender was held unconstitutional by the Ohio Supreme Court’s

recent decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448;

consequently, Durrette fits within the Hand class of offenders, and as such his plea should

be vacated.

{¶56} In this matter, the prior conviction specifications in the indictment subjected

Durrette to possible mandatory imprisonment under R.C. 2929.13(F) and 2901.08(A).

During the plea bargain process, Durrette explicitly bargained for deletion of the prior

conviction specifications in exchange for his guilty pleas in both CR-15-595754-A and

CR-15-600742-A:

[W]ith an understanding that the defendant will also be pleading guilty to
amended Counts 4, 6, 9, 11, 14, 16, 18, 19, 21, 25, [the] state would move
to amend those counts by deletion of the 3-year firearm spec as well as the
notice of prior conviction[.] [Additionally, in CR-15-600742] the state
would accept in that case a similar plea as this case: The 3-year firearm
 would be dismissed; the notice of prior conviction would be dismissed; as
well as the kidnapping.

(Tr. 4.)

{¶57} The majority correctly notes that Durrette was sentenced on December 17,

2015, and Hand was not issued until August 25, 2016. However, after Durrette was

sentenced and filed a notice of appeal, this court remanded the case to the trial court for

ruling on a motion to vacate Durrette’s guilty plea. The motion to vacate the guilty plea

was filed on September 7, 2016, or several weeks after the decision in Hand.

Accordingly, Hand affects his plea and sentence. The trial court under the circumstances

should have granted his motion. I agree with Durrette; he bargained for nothing.

{¶58} Under the totality of the circumstances, Durrette did not subjectively

understand the true extent of his potential penalties and the “maximum penalty involved,”

as required under Crim.R. 11 since the notices of prior conviction may actually not be

used to enhance his penalty or sentence. Accord State v. Tutt, 2015-Ohio-5145, 54

N.E.3d 619, ¶ 20 (8th Dist.) (no substantial compliance with Crim.R. 11(C)(2) where the

trial court failed to provide defendant with accurate information that he was subject to

mandatory imprisonment).

{¶59} The majority concludes that deletion of the prior conviction specifications

was not the only benefit that Durrette received from the plea agreements because the state

also agreed to dismiss eleven other charges and 20 firearm specifications. However,

Hand announced a total prohibition against using juvenile adjudications to enhance the

sentence imposed upon an adult “because it is fundamentally unfair” and a violation of
the Due Process Clauses of the Ohio and United States Constitutions to use adjudications

in this manner. Id. at paragraph one of the syllabus. Therefore, in my view, the

vindication of these constitutional considerations outweighs the fact that dismissal of

other offenses were also part of the plea.