State v. Brown

[Cite as State v. Brown, 2019-Ohio-3516.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 107933
v. :

DASHAWN BROWN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED, VACATED, AND REMANDED
RELEASED AND JOURNALIZED: August 29, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-622655-A and CR-17-623952-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jennifer Meyer, Assistant Prosecuting
Attorney, for appellee.

Nee Law Firm, L.L.C., Matthew M. Nee, and Leigh S.
Prugh, for appellant.

EILEEN T. GALLAGHER, P.J.:

Defendant-appellant, Dashawn Brown, appeals from his convictions

and sentence following a guilty plea. He raises the following assignments of error

for review:
 1. The trial court erred in accepting Brown’s plea because it was not
made knowingly, intelligently, and voluntarily.

2. The trial court erred in failing to merge Brown’s convictions for
carrying a concealed weapon with his convictions for improperly
handling a firearm in a motor vehicle.

3. The trial court erred in not making the required findings to impose
consecutive sentences.

After careful review of the record and relevant case law, we reverse

and vacate Brown’s convictions and remand for proceedings consistent with this

opinion.

I. Procedural and Factual History

In November 2017, Brown was named in a four-count indictment in

Cuyahoga C.P. No. CR-17-622655-A. The indictment charged him with receiving

stolen property in violation of R.C. 2913.51(A), with a one-year firearm specification

and a forfeiture specification; carrying a concealed weapon in violation of R.C.

2923.12(A)(2), with a forfeiture specification; improperly handling firearms in a

motor vehicle in violation of R.C. 2923.16(B), with a forfeiture specification; and

receiving stolen property in violation of R.C. 2913.51(A), with a forfeiture

specification.

In December 2017, Brown was indicted by information in Cuyahoga

C.P. No. CR-17-623952-B. Brown was charged with two counts of carrying a

concealed weapon in violation of R.C. 2923.12(A), with forfeiture specifications; and

a single count of improperly handling firearms in a motor vehicle in violation of R.C.

2923.16(B), with forfeiture specifications.
 In January 2018, Brown was named in a multiple-count indictment

in Cuyahoga C.P. No. CR-18-624694-B.1 The indictment charged him with

aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year

firearm specifications; robbery in violation of R.C. 2911.02(A)(1), with one- and

three-year firearm specifications; kidnapping in violation of R.C. 2905.01(A)(2),

with one- and three-year firearm specifications; aggravated robbery in violation of

R.C. 2911.01(A)(1), with one- and three-year firearm specifications; robbery in

violation of R.C. 2911.02(A)(1), with one- and three-year firearm specifications;

kidnapping in violation of R.C. 2905.01(A)(2), with one- and three-year firearm

specifications; theft in violation of R.C. 2913.02(A)(1); and vandalism in violation of

R.C. 2909.05(B)(1)(b).

At a consolidated hearing held in August 2018, Brown expressed that

he wished to withdraw his previously entered pleas of not guilty and accept a plea

agreement with the state. The state then set forth the terms of the proposed plea

agreement, expressing that “all three of these plea deals are packaged.”

In C.P. No. CR-17-622655-A, Brown pleaded guilty to receiving stolen

property in violation of R.C. 2913.51(A), with a one-year firearm specification and a

forfeiture specification; carrying a concealed weapon in violation of R.C.

2923.12(A)(2), with a forfeiture specification; improperly handling firearms in a

motor vehicle in violation of R.C. 2923.16(B), with a forfeiture specification; and

1 Brown’s notice of appeal does not include C.P. No. CR-18-624694-B.
Nevertheless, given the nature of the plea agreement accepted in this case, consideration
of Case No. CR-18-624694-B is required.
receiving stolen property in violation of R.C. 2913.51(A), with a forfeiture

specification.

In C.P. No. CR-17-623952-B, Brown pleaded guilty to carrying a

concealed weapon in violation of R.C. 2923.12(A), with forfeiture specifications and

improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), with

forfeiture specifications. The remaining count was nolled.

In C.P. No. CR-18-624694-B, Brown pleaded guilty to theft in

violation of R.C. 2913.02(A)(1), as charged in Count 7 of the indictment. The

remaining offenses were nolled.

Following a Crim.R. 11 colloquy, the trial court accepted Brown’s

guilty pleas in each case and referred him to the county probation department for a

presentence-investigation report. A consolidated sentencing hearing was held in

September 2018.

In C.P. No. CR-17-622655-A, Brown was sentenced to 18 months in

prison for the receiving stolen property offense charged in Count 1, to run

consecutively with the one-year firearm specification. Brown was also sentenced to

18 months in prison for the carrying a concealed weapon offense, 18 months in

prison for the improperly handling firearms in a motor vehicle offense, and 180 days

in jail on the remaining receiving stolen property offense. The 18-month prison

term imposed on Count 1, and its accompanying one-year firearm specification,

were ordered to be served consecutively to the 18-month prison term imposed on
the carrying a concealed weapon offense. The sentences imposed on the remaining

offenses were ordered to be served concurrently, for a prison term of four years.

In C.P. No. CR-17-623952-B, Brown was sentenced to 18 months in

prison on each offense, to be served consecutively, for a prison term of 36 months.

In addition, the 36-month prison term imposed in C.P. No. CR-17-623952-B was

ordered to be served consecutively with the four-year prison term imposed in C.P.

No. CR-17-622655-A, for an aggregate sentence of seven years.

In C.P. No. CR-18-624694-B, Brown was sentenced to 180 days in jail,

to run concurrently with the sentences imposed in C.P. Nos. CR-17-622655-A and

CR-17-623952-B.

Brown now appeals from his convictions and sentence.

II. Law and Analysis

A. Validity of Plea

In his first assignment of error, Brown argues his guilty pleas were

not knowingly, intelligently, and voluntarily made.

“When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points

renders enforcement of the plea unconstitutional under both the United States

Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660

N.E.2d 450 (1996); see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621, ¶ 7. As the Ohio Supreme Court explained in State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462:
 A criminal defendant’s choice to enter a plea of guilty or no contest is a
serious decision. The benefit to a defendant of agreeing to plead guilty
is the elimination of the risk of receiving a longer sentence after trial.
But, by agreeing to plead guilty, the defendant loses several
constitutional rights. * * * The exchange of certainty for some of the
most fundamental protections in the criminal justice system will not be
permitted unless the defendant is fully informed of the consequences
of his or her plea. Thus, unless a plea is knowingly, intelligently, and
voluntarily made, it is invalid.

Id. at ¶ 25.

In considering whether a criminal defendant knowingly, intelligently,

and voluntarily entered a guilty plea, we first review the record to determine whether

the trial court complied with Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128,

566 N.E.2d 658 (1991).

Crim.R. 11(C) sets forth certain constitutional and procedural

requirements with which the trial court must comply prior to accepting a guilty plea.

Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in a felony case

without personally addressing the defendant 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.

(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.

(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require
 the state to prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.

The purpose of Crim.R. 11(C) is “‘to convey to the defendant certain

information so that he [or she] can make a voluntary and intelligent decision

whether to plead guilty.’” State v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-

Ohio-294, ¶ 12, quoting State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d

115 (1981). When a trial court complies with Crim.R. 11(C)(2) in accepting a plea,

there is a presumption that the defendant’s plea was knowingly, intelligently, and

voluntarily made. See, e.g., State v. Alexander, 8th Dist. Cuyahoga No. 103754,

2016-Ohio-5707, ¶ 11; State v. Murray, 12th Dist. Brown No. CA2015-12-029, 2016-

Ohio-4994, ¶ 20.

The trial court must strictly comply with those provisions of Crim.R.

11(C)(2) that relate to the waiver of constitutional rights. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, at syllabus. When the trial court fails to explain

the constitutional rights set forth in Crim.R. 11(C)(2)(c), it is presumed the plea was

entered involuntarily and is therefore invalid. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, 893 N.E.2d 462 at 31.

With respect to the nonconstitutional rights described in Crim.R.

11(C)(2)(a), such as the right to be informed of the maximum penalty involved and

the nature of the charges, substantial compliance with the rule is generally sufficient.

Veney at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86, 92, 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.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing

Stewart at 92-93.

“[T]here is no easy or exact way” to determine a defendant’s

subjective understanding. State v. Cardona, 8th Dist. Cuyahoga No. 75556, 1999

Ohio App. LEXIS 6064, *12 (Dec. 16, 1999), citing State v. Carter, 60 Ohio St.2d 34,

38, 396 N.E.2d 757 (1979). However, if a defendant “‘receives the proper

information, then we can ordinarily assume that he understands that information.’”

Cardona at *12, quoting Carter at 38. A defendant may learn of information not

relayed to him by the trial court from other sources, such as his attorney. State v.

Rogers, 8th Dist. Cuyahoga No. 103227, 2016-Ohio-1382, ¶ 18, citing State v.

McCown, 8th Dist. Cuyahoga No. 69683, 1996 Ohio App. LEXIS 4801, *19 (Oct. 31,

1996).

If an appellate court finds that a trial court did not substantially

comply with a requirement of Crim.R. 11(C)(2)(a), which governs the advisement of

nonconstitutional rights, the appellate court must make a further determination as

to whether the trial court “partially complied” or “completely failed” to comply with

the requirement. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at

¶ 32. If the trial court partially complied, the plea may be vacated only if the

defendant demonstrates a prejudicial effect, i.e., “‘whether the plea would have

otherwise been made.’” Id., quoting Nero at 108. If, however, the trial court

completely failed to comply, the plea must be vacated because “‘[a] complete failure
to comply with the rule does not implicate an analysis of prejudice.’” Id., quoting

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

In this case, it is undisputed that the trial court fully complied with

the requirements of Crim.R. 11(C)(2)(c), and that Brown understood the waiver of

his constitutional rights. However, Brown contends that his plea was not knowingly

made because the trial court failed to advise him that the firearm specification

attached to the receiving stolen property offense in C.P. No. CR-17-622655-A carried

a mandatory prison term.

In State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619 (8th Dist.), this court

held, in relevant part:

[W]here a defendant faces a mandatory prison sentence as a result of a
guilty or no contest plea, the trial court must determine, prior to
accepting a plea, that the defendant understands that he or she is
subject to a mandatory prison sentence and that as a result of the
mandatory prison sentence, he or she is not eligible for probation or
community control sanctions.

Id. at ¶ 19. A trial court may meet this requirement by (1) expressly informing the

defendant that he or she is subject to a mandatory prison sentence and therefore

does not qualify for community control sanctions, or (2) confirming the defendant’s

subjective understanding of the mandatory nature of the prison term from the

totality of the circumstances. Id. at ¶ 22.

In Tutt, this court vacated the defendant’s no contest pleas because

although the trial court properly advised the defendant of the maximum potential

penalties he could receive, it failed to expressly state that prison was mandatory, and
the totality of the circumstances failed to demonstrate that the defendant

subjectively understood that prison was mandatory. Id. at ¶ 26. Indeed, the trial

court misled the defendant into believing that prison terms on the base offenses

were optional because it advised him that on his two first-degree felonies he could

be sentenced to “anywhere from 3 to 11 years in prison * * * and/or a fine up to

$20,000.” (Emphasis added.) Tutt at ¶ 7. This instruction erroneously suggested

that the defendant could receive either a prison term, a fine, or both. Therefore, we

found because the trial court failed to mention the mandatory nature of the prison

terms, the trial court “wholly failed” to comply with Crim.R. 11(C)(2)(a) before

accepting the defendant’s no contest pleas, and the defendant was not required to

demonstrate prejudice in order to have his no contest pleas vacated. Id. at ¶ 29-31.

Relevant to the circumstances of this case, this court has further

discussed the implications of firearm specifications, stating:

A firearm specification carries a mandatory additional term of
imprisonment of one or three years and constitutes a portion of the
maximum penalty involved in an offense for which a prison term will
be imposed. See State v. Higgs, 123 Ohio App.3d 400, 408, 704 N.E.2d
308 (1997). Accordingly, a trial court’s lack of notification regarding
the additional mandatory time for a firearm specification could be a
basis to vacate a plea, since the defendant has not been informed of the
maximum penalty for which he is pleading guilty. The rationale behind
such a mandate is that without an adequate explanation of the
additional mandatory prison time from the trial court, a defendant can
not fully understand the consequence of his plea as required by Crim.R.
11(C).

State v. Douglas, 8th Dist. Cuyahoga No. 87952, 2007-Ohio-714, ¶ 10.
 In this case, the record reflects that during its Crim.R. 11 colloquy, the

trial court briefly advised Brown of the maximum penalties he faced for each of his

felonies of the fourth degree and misdemeanors of the first degree. The court did

not reference the mandatory prison term associated with the subject firearm

specification at that time. Rather, the trial court explained its “option” to impose

community control sanctions and only discussed the implications of postrelease

control if the court were to impose a prison term on the felony offenses.

In addition, the record reveals that at the time the trial court accepted

Brown’s plea in C.P. No. CR-17-622655-A, the court completely failed to mention

the firearm specification attached to the receiving stolen property offense. By failing

to mention the firearm specification at all, the court certainly took no effort to

confirm that Brown understood the specification carried a mandatory term of

imprisonment. Recognizing the trial court’s oversight, the prosecutor eventually

interjected, and the following discussion occurred on the record:

PROSECUTOR: I apologize. Back to [C.P. No. CR-17-622655-A], I
might not have heard. Count 1 was with — was pleading guilty to the
one-year firearm specification. I’m not sure — you might have said
that. I’m just not sure.

TRIAL COURT: I did not say that.

PROSECUTOR: Thank you.

TRIAL COURT: There is a one-year firearm specification in that Count
1?

PROSECUTOR: Yes, your Honor.

TRIAL COURT: Did you understand that, Mr. Brown?
 DEFENDANT: Yes.

TRIAL COURT: Your plea would still be guilty to that count?

DEFENDANT: Yes.

TRIAL COURT: I appreciate that. So I’ll accept that guilty plea with
that additional information and find you guilty of that charge.

The foregoing discussion demonstrates that the trial court corrected

its oversight in accepting Brown’s guilty plea to the receiving stolen property offense.

However, relevant to this appeal, the brevity of the discussion equally establishes

that the trial court did not rectify its failure to advise Brown of the mandatory prison

term associated with the corresponding one-year firearm specification. Under these

circumstances, we are unable to conclude that Brown subjectively understood that

he was subject to a mandatory prison sentence based on the firearm specification.

Contrary to the state’s position on appeal, statements made during the sentencing

hearing are irrelevant to our review of Brown’s subjective understanding at the time

of the plea hearing. Accordingly, we find the court’s explanation of the maximum

penalties was inadequate and did not substantially comply with the court’s

responsibilities under Crim.R. 11(C)(2)(a).

However, this is not the end of our inquiry. We must further

determine whether the trial court partially complied — requiring a prejudice

analysis — or whether it “wholly failed” to comply requiring no prejudice analysis.

Based on a thorough review of the record, we conclude that the trial court wholly

failed to comply with its responsibility under Crim.R. 11(C)(2)(a). In this case, the
trial court completely failed to ensure that Brown understood that he would be

subject to a mandatory prison sentence on the firearm specification before accepting

Brown’s guilty plea on the underlying offense. As such, no prejudice analysis is

required.

As this court explained in Tutt:

This is not a case in which the trial court informed the defendant of the
mandatory nature of his sentence but in some way got it wrong, e.g., by
misstating the length of the sentence or failing to adequately explain
what a mandatory sentence means, or where conflicting information
was provided to the defendant with respect to whether he was subject
to a mandatory prison sentence. See, e.g., State v. Hartsook, 2014-
Ohio-4528, ¶ 10-17, 21 N.E.3d 617 (12th Dist.) (trial court partially
complied with Crim.R. 11(C)(2)(a) where it accurately advised
defendant of the maximum sentence he could receive but defendant
was given inaccurate and conflicting information about the “mandatory
portion of [his] potential sentence”); State v. Smith, 8th Dist. Cuyahoga
No. 83395, 2004-Ohio-1796, ¶ 8-12 (defendant’s guilty plea to
aggravated robbery with a notice of prior conviction that made prison
mandatory was knowing, intelligent and voluntary notwithstanding
trial court’s failure to expressly advise defendant that he was “ineligible
for probation” or that the offense to which he was pleading guilty
required a “mandatory” prison term where prosecutor explained at the
plea hearing that the “[n]otice of prior conviction means [defendant]
must serve a prison term of at least three years” and trial court
indicated that the range of time he would be serving was from three to
ten years); see also Rembert, 2014-Ohio-300, at ¶ 28 (“When the trial
court fails to mention postrelease control ‘at all’ during a plea colloquy,
the court fails to comply with Crim.R. 11, and the reviewing court must
vacate the plea and remand the cause. * * * However, ‘some compliance’
with the rule with respect to postrelease control prompts a substantial-
compliance analysis and the corresponding prejudice analysis.”).
Tutt, 2015-Ohio-5145, 54 N.E.3d 619, at ¶ 30. Rather, the mandatory nature of

Brown’s prison sentence was not mentioned at all during the plea colloquy. In fact,

the court suggested that community control sanctions were an option.
 Under the totality of the circumstances presented in this case, we find

Brown’s plea was not knowingly, intelligently, and voluntarily made. We further

find that because the negotiated plea agreement between the state and Brown

incorporated three separate cases as a “packaged deal,” the trial court’s complete

failure to comply with the requirements of Crim.R. 11(C)(2)(a) requires this court to

vacate the plea agreement in its entirety. With that said, however, we recognize that

this appeal is limited to the judgments rendered in C.P. Nos. CR-17-622655-A and

CR-17-623952-B. Thus, our disposition of this appeal is limited to those cases.

Given the contractual nature of the entire plea agreement, the implications of this

court’s decision on the conviction rendered in C.P. No. CR-18-624694-B may be an

issue for the parties to address further on remand.

Brown’s first assignment of error is sustained. His remaining

assignments of error are thereby rendered moot.

Judgment reversed, vacated, and remanded for further proceedings

consistent with this opinion.

It is ordered that appellant recover from appellee 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. 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR