State v. Harris

[Cite as State v. Harris, 2020-Ohio-805.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 108529
v. :

LARRY HARRIS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 5, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-626290-B and CR-18-628031-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ben McNair and Tim Troup, Assistant
Prosecuting Attorneys, for appellee.

Valore and Gordillo L.L.P., and Dean Valore, for
appellant.
MARY J. BOYLE, P.J.:

Defendant-appellant, Larry Harris, appeals his conviction.1 He raises

one assignment of error for our review:

The trial court committed reversible error to the prejudice of the
appellant by failing to comply with the requirements of Criminal Rule
11.

Finding no merit to his assignment of error, we affirm.

I. Procedural History and Factual Background

In March 2018, in Cuyahoga C.P. No. CR-18-626290, the Cuyahoga

County Grand Jury indicted Harris and his codefendants (Antwuan Harris,

Dayvontae Jeffries-Hampton, and James Hampton) for aggravated robbery in

violation of R.C. 2911.01(A)(1), a felony of the first degree (Count 1); aggravated

burglary in violation of R.C. 2911.11(A)(2), a felony of the first degree (Count 2);

kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first degree (Count 3);

theft in violation of R.C. 2913.02(A)(1), felonies of the fifth degree (Counts 4 and 5);

attempted aggravated robbery in violation of R.C. 2923.02 and 2911.01(A)(1), a

felony of the second degree (Count 6); attempted aggravated burglary in violation of

R.C. 2923.02 and 2911.11(A)(2), a felony of the second degree (Count 7); failure to

comply in violation of R.C. 2921.331(B), a felony of the fourth degree (Count 8);

receiving stolen property in violation of R.C. 2913.51(A), three of which were felonies

of the fifth degree and one of which was a misdemeanor of the first degree (Counts

1This case is a companion case to the appeal in State v. Harris, 8th Dist. Cuyahoga
No. 108528.
9 through 12); telecommunications fraud in violation of R.C. 2913.05(A), a felony of

the fifth degree (Count 13); carrying a concealed weapon in violation of R.C.

2923.12(A)(2), a felony of the fourth degree (Count 14); and improperly handling

firearms in a motor vehicle in violation of R.C. 2923.16(B), a felony of the fourth

degree (Count 15).2 The counts for aggravated robbery, aggravated burglary,

attempted aggravated robbery, and attempted aggravated burglary all carried one-

and three-year firearm specifications as well as forfeiture specifications. The count

for kidnapping and one of the counts for theft also carried one- and three-year

firearm specifications, and the counts for carrying a concealed weapon and

improperly handling firearms in a motor vehicle carried forfeiture specifications.

In May 2018, in Cuyahoga C.P. No. CR-18-628031, a Cuyahoga

County Grand Jury indicted Harris (and his codefendant, James Gevontea

Hampton) for aggravated burglary in violation of R.C. 2911.11(A)(2), a felony of the

first degree (Count 1); aggravated robbery in violation of R.C. 2911.01(A)(1), a felony

of the first degree (Count 2); kidnapping in violation of R.C. 2905.01(A)(2), a felony

of the first degree (Count 3); and theft in violation of R.C. 2913.02(A)(1), a felony of

the fifth degree (Count 4).3 All of the counts carried one- and three-year firearm

specifications.

2 There were additional charges against his codefendants.
3 Hampton was also charged with having weapons while under disability and
carrying a concealed weapon (Counts 5 and 6, respectively).
 At the plea hearing in August 2018, the state informed the court, in

the presence of Harris and his counsel, that the parties had engaged in extensive

negotiations and that the state proposed amending charges in both cases. In Case

No. 626290, the state proposed amending the Count 1 to robbery in violation of R.C.

2911.02(A)(1), a felony of the second degree, and deleting the one-year firearm

specification, and amending Count 6 to robbery in violation of R.C. 2911.02(A)(3), a

felony of the third degree, and deleting the three-year firearm specification. Harris

would also plead guilty to Count 8 failure to comply, Counts 11 and 12 receiving

stolen property, and Count 13 telecommunications fraud. The remaining charges

would be nolled. In Case No. 628031, the state proposed amending Count 2

aggravated robbery to robbery in violation of R.C. 2911.02(A)(1), a felony of the

second degree, and deleting the one-year firearm specification. The remaining

charges would be nolled. In addition, Harris would need to forfeit a handgun and a

replica handgun. The state further informed the court that the state and Harris were

agreeing to a recommended sentence of ten years for both cases.

Defense counsel told the trial court that he and Harris had discussed

the state’s proposal and that Harris had given it serious consideration. The trial

court explained to Harris that under the plea the state was offering, Harris would

serve a full ten years in prison. Harris acknowledged that he understood the

proposed amended offenses and that if he pleaded guilty he would serve the full ten

years in prison.
 COURT: You understand they’re asking the Court to impose a ten-
year sentence in prison here? Is that understood?

HARRIS: Yes, your Honor.

COURT: And that would not be reduced. Okay? Do you
understand?

HARRIS: Yes, your Honor.

On at least seven separate occasions, the trial court asked Harris if he

understood that he would serve ten years in prison if he pleaded guilty, and Harris

responded that he understood each time. The trial court also explained the

constitutional rights that Harris would be waiving if he pleaded guilty and asked

Harris at least five times if he understood. Harris answered in the affirmative each

time. The trial court went through each of the state’s proposed amendments, asked

Harris’s counsel if he objected (which he did not), and granted each amendment.

The trial court went through each allegation and offense with Harris,

explaining the minimum and maximum sentence and fine that each offense carried.

Harris expressed his understanding after each offense. Harris confirmed that no

threats or promises had been made to him to induce his plea except for the agreed

recommended sentence of ten years in prison. Harris then pleaded guilty to the

amended charges in both cases.

The trial court, accepting the parties’ agreed recommendation,

sentenced Harris to an aggregate of ten years in prison for both Case No. 626290

and Case No. 628031. Specifically, in Case No. 626290, the trial court sentenced

Harris to an aggregate of seven years as follows:
  three years for the firearm specification, to be served prior and consecutive to
two years for Count 1 robbery;

 one year for the firearm specification to be served prior and consecutive to
one year for Count 6 robbery, which is to be served concurrently to the two
years for Count 1 robbery;4

 one year for Count 8 failure to comply, to be served consecutively to any other
counts;

 one year each for both Counts 11 and 12 receiving stolen property and one year
for Count 13 telecommunications fraud, to be served concurrently with each
other and concurrently with the underlying offenses for robbery;

 mandatory three years of postrelease control for his robbery convictions and
up to three years of discretionary postrelease control for failure to comply,
receiving stolen property, and telecommunications fraud; and

 a suspended driver’s license until August 31, 2030.

In Case No. 628031, the trial court sentenced Harris to an aggregate

of three years as follows:

 three years for the firearm specification, to be served prior and consecutive to
the firearm specifications in Case No. 626290;

 two years for Count 2 robbery to be served concurrently with the underlying
offenses for robbery in Case No. 626290; and

 mandatory three years of postrelease control.

4 The trial court’s journal entry reflecting Harris’s sentence in Case No. 626290
does not include a statement that the robbery terms are to run concurrently, but the
transcript reflects that the trial court told Harris that the robbery terms would run
concurrently. Even though the sentences from the journal entry therefore add up to eight
years, the journal entry explicitly states that it imposes a prison sentence of seven years
for Case No. 626290, which added to the three-year sentence from Case No. 628031
aggregate to the ten-year agreed prison sentence.
The trial court instructed Harris that if he were to violate his postrelease control in

either case, the parole board may impose a prison term of up to one-half of the

prison term originally imposed. The trial court also waived Harris’s costs and fines

in both cases.

It is from this judgment that Harris now appeals.

II. Effect of Guilty Plea

In his single assignment of error, Harris argues that the trial court

committed reversible error by failing to ensure that Harris understood the effect of

his guilty plea pursuant to Crim.R. 11(C)(2). We disagree.

A defendant’s plea must be entered knowingly, intelligently, and

voluntarily for the plea to be constitutional under the United States and Ohio

Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “Ohio

Crim.R. 11(C) was adopted in order to facilitate a more accurate determination of

the voluntariness of a defendant’s plea by ensuring an adequate record for review.”

State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). The underlying

purpose of Crim.R. 11(C) is to ensure that the trial court conveys certain information

to a defendant so that he or she can make a voluntary and intelligent decision

regarding whether to plead guilty or no contest. State v. Ballard, 66 Ohio St.2d 473,

479-480, 423 N.E.2d 115 (1981).

We review whether the trial court complied with Crim.R. 11(C) de

novo. State v. Cardwell, 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. In

reviewing the record, appellate courts must consider the totality of the
circumstances to determine whether the plea hearing complied with Crim.R. 11(C).

Cardwell at ¶ 26, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

Specifically, Crim.R. 11(C) 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.

(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.

Trial courts must strictly comply with the provisions concerning the

constitutional rights set forth in Crim.R. 11(C)(2)(c), but only substantial

compliance is required for the provisions concerning nonconstitutional rights set

forth in Crim.R. 11(C)(2)(a) and (b). State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-

4415, 814 N.E.2d 51, ¶ 12. “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, 56 Ohio St.3d 106, 107, 564 N.E.2d 474, at

108.
 Harris challenges only the trial court’s compliance with Crim.R.

11(C)(2)(b) regarding the effect of his guilty plea. Crim.R. 11(B)(1) sets forth the

effect of a guilty plea: “The plea of guilty is a complete admission of the defendant’s

guilt.” The trial court must have substantially complied with Crim.R. 11(C)(2)(b)’s

requirement to inform Harris of and determine that Harris understood that by

pleading guilty he would be making a complete admission of his guilt.

Moreover, a defendant who challenges his or her plea on the basis

that it was not knowingly, intelligently, and voluntarily entered must demonstrate

prejudice. Nero at 108. A “failure to comply with nonconstitutional rights will not

invalidate a plea unless the defendant thereby suffered prejudice.” Griggs at ¶ 12.

The test for prejudice is “whether the plea would have otherwise been made.” Id.,

citing Nero at 108.

Harris argues that the trial court failed to substantially comply with

Crim.R. 11(C) by not informing him of and determining that he understood the

effects of his guilty plea. Harris points specifically to the following exchange during

the plea hearing:

COURT: Right. So we’re here in two cases, one of them is State of
Ohio v. Larry Harris. Mr. Harris, my understanding is
that your attorney, Mr. Dumas, is that he’s worked out a
plea bargain on your behalf on these two cases and that
you wish to take advantage of the plea bargain. Is that
correct?

HARRIS: Yes, your Honor.

COURT: You understand by entering into a plea bargain, you’re not
going to have a trial on either case?
 HARRIS: Yes, your Honor.

COURT: Also, by entering a change of plea from not guilty to guilty
and take advantage of the plea bargain, do you understand
you’re accepting the allegations and you are relieving the
state of its burden of proof?

HARRIS: Yes, your Honor.

COURT: Also, the parties are proposing that the Court would
impose a recommended sentence of ten years. Do you
understand that would be ten years in prison and that you
would not have an early release?

HARRIS: Yes, your Honor.

COURT: Is that what you wish to do is enter into this plea bargain?

HARRIS: Yes, your Honor.

Harris argues that the above exchange failed to (1) ensure that he

knew he would be found guilty of the offenses charged and would have a criminal

record for the rest of his life, (2) did not tell him that “he would be found guilty,” and

(3) was so vague that it did not substantially comply with Crim.R. 11.

Although the trial court did not explicitly inform Harris that the effect

of his guilty plea “is a complete admission of [his] guilt,” our review of the record

reveals that Harris subjectively understood the effect of his guilty plea. Considering

the totality of the circumstances, the record shows that the trial court’s colloquy was

not vague and that Harris understood that pleading guilty was a complete admission

of his guilt. The court reviewed each allegation and offense with Harris and

explained the possible maximum sentence for each and the rights that Harris was

waiving. In response to multiple questions from the trial court, Harris stated that
he understood that by pleading guilty he would be going to prison for ten years.

Harris then stated he was pleading guilty to each of the amended charges.

Considering the totality of the circumstances, we find that the trial court ensured

that Harris understood the effect of his guilty plea.

Moreover, the trial court explained to Harris the constitutional rights

that he would be waiving if he pleaded guilty. The trial court repeatedly asked Harris

if he understood the constitutional rights he would be waiving by pleading guilty. In

response, Harris repeatedly answered that he understood.

We are not persuaded by Harris’s arguments that he did not

understand the effect of his plea because he is “young and inexperienced” with only

a tenth-grade education. In State v. Beckwith, 8th Dist. Cuyahoga No. 75927, 2000

Ohio App. LEXIS 3162 (July 13, 2000), the defendant similarly argued that he did

not knowingly, intelligently, or voluntarily plead guilty because of his “limited

intelligence.” This court disagreed, finding that the proceedings “were not so subtle

that an eighteen-year-old with a ninth grade education would have had any trouble

understanding.” Id. at 8. Likewise, the guilty plea here was straightforward.

Defense counsel and the state engaged in extensive negotiations before agreeing

upon the plea and the ten-year sentence. Nor are we convinced that Harris did not

understand the effect of his plea because he was taking medication at the time.

Harris testified that he was taking a “low milligram of Remeron” for anxiety and

depression. Nothing in the record supports that Harris was not able to understand
the effect of his plea at all, let alone due to his age, education level, or low dosage of

anxiety medication.

Even if we agreed that the trial court failed to substantially comply

with explaining the effect of the plea to Harris, he did not prove that he was

prejudiced by the court’s failure. Other than his blanket assertion of prejudice,

Harris provides no support or argument that he was prejudiced. Moreover, Harris

does not claim that had the trial court better informed him of the effect of his plea,

he would not have pleaded guilty.

Further, Harris does not assert that he is actually innocent. The Ohio

Supreme Court has held that a defendant is “presumed to understand that he has

completely admitted his guilt” unless a defendant asserts “actual innocence.”

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus. If a defendant

does not claim “actual innocence,” a “court’s failure to inform the defendant of the

effect of his guilty plea as required by Crim.R. 11 is presumed not to be prejudicial.”

Id. The record contains no evidence of Harris asserting actual innocence at the time

of his plea, and he does not raise actual innocence on appeal.

Accordingly, we overrule Harris’s only assignment of error.

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. The defendant’s
conviction having been affirmed, any bail pending 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.

MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
EILEEN A. GALLAGHER, J., CONCUR
Keywords: Crim.R. 11, effect of the plea

Summary: The trial court complied with Crim.R. 11, and the record shows that
Harris knowingly, voluntarily, and intelligently pleaded guilty.