State v. Burns

[Cite as State v. Burns, 2023-Ohio-3121.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

STATE OF OHIO, CASE NO. 2022-L-129

Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas

DARNELL L. BURNS,
Trial Court No. 2022 CR 000536
Defendant-Appellant.

OPINION

Decided: September 5, 2023
Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Robert T. McDowall, Jr., Robert T. McDowall Co, LLC, 415 Wyndclift Place,
Youngstown, OH 44515 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Darnell L. Burns, appeals from his convictions for

Felonious Assault and Having Weapons While Under Disability in the Lake County Court of

Common Pleas. For the following reasons, we affirm the judgment of the lower court.

{¶2} On August 15, 2022, the Lake County Grand Jury indicted Burns for Attempted

Murder (Count One), a felony of the first degree, in violation of R.C. 2923.02 and R.C.

2903.02(A); Felonious Assault (Count Two), a felony of the second degree, in violation of

R.C. 2903.11(A)(2); and Having Weapons While Under Disability (Count Three), a felony of

the third degree, in violation of R.C. 2923.13(A)(2). Counts One through Three had firearm
specifications pursuant to R.C. 2941.145 and Counts One and Two had repeat violent

offender specifications pursuant to R.C. 2941.149.

{¶3} On November 1, 2022, Burns entered pleas of guilty to Felonious Assault and

Having Weapons While Under Disability as charged in the Indictment, as well as the

specifications on Felonious Assault. The count of Attempted Murder was dismissed and the

specification on Count Three was “removed” as being “incorrect.” The State and Burns

recommended an agreed sentence of 14 to 18 years in prison. At the plea hearing, the State

described that, had the matter gone to trial, the evidence would have shown that Burns,

following an argument with the victim, fired his gun at her vehicle, hitting the driver’s side.

The court explained the rights Burns waived by pleading guilty.

{¶4} As to the sentence, the court advised that the gun specification carried a three-

year mandatory term and would be consecutive to the other terms. The court also advised:

“And you understand that if I give you the maximum on the felonious assault, then I can give

you between one and ten years * * * on the repeat violent offender specification attached to

that felonious assault?,” which would be consecutive. It advised him it could sentence him

to an additional 973 days in prison for a post release control violation. It explained that

Felonious Assault was subject to an indefinite term:

And what that means is I give you a minimum sentence, and the law
derives from that minimum sentence what the maximum sentence
would be. And so the minimum term that is attributable to felonious
assault, the felony two, would be between two and eight years * * *. So
that means for the felonious assault, I pick a number –- [two to eight
years], and the maximum term is one half of that. So if I pick eight
years, which would be your joint recommendation, then half of eight is
four, you add the four to the eight, is twelve years.
It advised: “And you understand that on the weapons under disability the minimum prison is

nine months, the maximum prison is thirty-six months. And it has to be either nine, twelve,

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eighteen, twenty-four, thirty or thirty-six months.” The court explained that the maximum

potential prison term would be 28 years. Finally, it advised: “Now you understand your

agreement with the State calls for me giving you the maximum on the felonious, which would

be eight to twelve including that four year tail, plus three on the firearm specification, plus

two on the RVO specification, plus * * * one year on the weapons under disability,” reiterating

the agreed sentence of 14 to 18 years. The court accepted the pleas and found Burns guilty

of the offenses. The written plea agreement contained a sentencing chart which stated “no”

in relation to whether the sentence on Felonious Assault was mandatory.

{¶5} The matter proceeded immediately to sentencing. Defense counsel and the

State requested that Burns be given the jointly recommended sentence. The court found

that prison was mandatory on the firearm specification and “there is a presumption for prison

on the felonious assault” which “cannot be overridden.” It found the recommended sentence

appropriate and ordered that Burns serve two years for the repeat violent offender

specification, three years on the gun specification, an indefinite term of eight to twelve years

for Felonious Assault, and one year for Having Weapons While Under Disability. It made

consecutive sentencing findings and ordered an aggregate minimum term of 14 years and

maximum term of 18 years.

{¶6} On November 17, 2022, a “continuation of the sentencing hearing” was held.

The court recognized that it had mentioned there was a presumption of prison for Felonious

Assault at the prior sentencing hearing but, pursuant to R.C. 2929.13(F)(6), the sentence

was mandatory due to Burns’ prior convictions. The court indicated that it wanted to make

the record clear as to the mandatory time and repeated its prior sentence. The court then

asked counsel for both parties whether this “change[d]” anything, to which counsel

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responded in the negative. The court inquired: “Mr. Burns, does this change anything? If it

changes something, say it now,” and then indicated that Burns was “silent on that point” and

the matter concluded. On December 7, 2022, the court issued a Judgment Entry

memorializing the sentence.

{¶7} Burns timely appeals and raises the following assignment of error:

{¶8} “Appellant’s plea was not knowingly and intelligently made in that (1) he was

not correctly advised of the penalties, and (2) he was denied effective assistance of counsel.”

{¶9} Burns argues that his guilty plea was not knowingly and intelligently entered

where his plea agreement and statements by the judge during the plea colloquy incorrectly

explained that there was presumed but non-mandatory incarceration for Felonious Assault.

{¶10} “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). “The best

way to ensure that pleas are entered knowingly and voluntarily is to simply follow the

requirements of Crim.R. 11 when deciding whether to accept a plea agreement.” State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

{¶11} Crim.R. 11(C)(2) provides that, “[i]n felony cases the court * * * shall not

accept a plea of guilty * * * 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 * * *; (b) Informing the defendant of and determining that the defendant

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Case No. 2022-L-129
understands the effect of the plea of guilty” and that the court may proceed to sentencing;

and (c) informing the defendant of rights waived by entering a plea, including the right to a

jury trial, to confront and subpoena witnesses, the right not to be compelled to testify, and

the requirement that the state prove guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(a)-

(c).

{¶12} “On appellate review [of compliance with Crim.R. 11] the questions to be

answered are ‘(1) has the trial court complied with the relevant provision of the rule? (2) if

the court has not complied fully with the rule, is the purported failure of a type that excuses

a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice

is required, has the defendant met that burden?’” State v. Servantes, 11th Dist. Portage

Nos. 2022-P-0031, et al., 2023-Ohio-2116, ¶ 35, citing State v. Dangler, 162 Ohio St.3d 1,

2020-Ohio-2765, 164 N.E.3d 286, ¶ 17.

{¶13} “When a trial court fails to explain the constitutional rights that a defendant

waives by pleading guilty or no contest,” i.e., the rights contained in Crim.R. 11(C)(2)(c), the

courts “presume that the plea was entered involuntarily and unknowingly, and no showing

of prejudice is required.” Dangler at ¶ 14, citing State v. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, 893 N.E.2d 462, ¶ 31. Further, “a trial court’s complete failure to comply with a

portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” Id. at ¶ 15.

{¶14} As an initial matter, the State contends that Burns’ arguments are precluded

on appeal because he did not file a motion to withdraw his plea pursuant to Crim.R. 32.1,

citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 12 (appellate

review was precluded where defendant did not raise the argument that a plea was entered

involuntarily due to the failure to advise him of certain rights in a motion to withdraw plea)

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and State v. Sumes, 5th Dist. Stark No. 2001CA00196, 2002 WL 501496, *2 (Apr. 1, 2002)

(error relating to acceptance of defendant’s plea should have been raised in a motion to

withdraw).

{¶15} We recognize, however, that the Ohio Supreme Court has held: “if a trial court

fails during a plea colloquy to advise a defendant that the sentence will include a mandatory

term of postrelease control, the defendant may dispute the knowing, intelligent, and

voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct

appeal.” State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 25.

Courts have applied this proposition, that a defendant can use either a direct appeal or

motion to withdraw to challenge the voluntary nature of the plea, to various circumstances

where the defendant alleges his plea has been entered involuntarily. State v. Hughes, 8th

Dist. Cuyahoga No. 98666, 2013-Ohio-1037, ¶ 5, fn. 1 (where defendant argued the court

did not properly advise him of possible incarceration during the plea hearing, his failure to

file a motion to withdraw did not preclude consideration on appeal pursuant to Sarkozy);

State v. Aguilar, 9th Dist. Wayne No. 10CA0051, 2011-Ohio-6008, ¶ 7-9 (considering the

merits of the argument that the trial court failed to properly advise the defendant of judicial

release, since he “may seek to vacate his guilty plea either by filing a motion to withdraw * *

* or upon direct appeal”). Given this application of the principle as stated in Sarkozy, we will

proceed to consideration of the merits on appeal.

{¶16} The State does not dispute that there was an error made when the plea

agreement improperly stated that the Felonious Assault offense did not carry a mandatory

sentence and this issue was not clarified at the plea hearing. R.C. 2929.13(F)(6) provides

that a court “shall impose a prison term” for a felony of the first or second degree “if the

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Case No. 2022-L-129
offender previously was convicted of or pleaded guilty to * * * any first or second degree

felony.” Pursuant to the repeat violent offender specification, Burns had been convicted of

Complicity to Aggravated Robbery and Complicity to Felonious Assault, felonies of the first

and second degree.

{¶17} The issue, then, is whether this error in failing to advise Burns that the

Felonious Assault charge carried a mandatory term rendered his plea involuntary. As stated

above, a trial court is required to “determin[e] 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.” Crim.R. 11(C)(2)(a). The court advised Burns of the

maximum sentence for each charge and the overall maximum of 28 years in prison and

explained the jointly recommended sentence of 14 to 18 years. He was not, however,

advised specifically of the maximum sentence for Felonious Assault or that he was ineligible

for a term of probation or community control.

{¶18} While Crim.R. 11 does not specifically address advisements required for

mandatory sentences, courts have found that the failure to properly advise a defendant

regarding the fact of a mandatory sentence and that he is not eligible for community control

can render a plea involuntarily entered. State v. Lehner, 5th Dist. Guernsey No. 21 CA 26,

2022-Ohio-2547, ¶ 30 (the court must determine a defendant’s understanding that he is

subject to a mandatory sentence and is ineligible for probation); State v. Byrd, 178 Ohio

App.3d 646, 2008-Ohio-5515, 899 N.E.2d 1033, ¶ 30 (2d Dist.). See also State v. Gensert,

2016-Ohio-1163, 61 N.E.3d 636, ¶ 24 (11th Dist.) (recognizing that the advisement of the

mandatory nature of a prison term was sufficient to make a defendant aware he was

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ineligible for community control). As outlined above, there was no specific advisement made

about the mandatory nature of the Felonious Assault sentence or advisement that Burns

was not eligible for community control, although he was advised that a portion of his

sentence, for the firearm specification, was mandatory and the court stated: “you understand

I have to send you to prison?”

{¶19} Presuming that the court’s failure to make a mandatory sentence advisement

and the improper statement in the plea agreement violated Crim.R. 11(C), we must next

determine whether such error can be reviewed for prejudice. As the Ohio Supreme Court

explained in Dangler, reversal is typically warranted for violations of Crim.R. 11(C) only if it

results in prejudice to the defendant. However, prejudice need not be demonstrated if the

improper advisements involved constitutional aspects of the plea colloquy or where the trial

court completely failed to comply with Crim.R. 11(C). 162 Ohio St.3d 1, 2020-Ohio-2765,

164 N.E.3d 286, at ¶ 14-16. There is no question that there was constitutional compliance

here. Further, we do not find a complete failure to comply with Crim.R. 11(C) since

advisements relating to the maximum penalty were provided.

{¶20} Under similar circumstances to those present here, a plurality of the Ohio

Supreme Court rejected the argument that a defendant need not show prejudice from

improper Crim.R. 11 advisements. In State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206,

147 N.E.3d 623, the defendant entered guilty pleas to Sexual Battery and related offenses

in exchange for dismissal of the remaining counts and an agreed recommended sentence.

Id. at ¶ 2. During the plea colloquy, the court improperly advised the defendant that his

prison sentences were not mandatory. Id. at ¶ 4, 9. On appeal, Straley argued that he need

not show prejudice “because the trial court’s misstatements had the same effect as a

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complete failure to satisfy Crim.R. 11.” Id. at ¶ 19. The Supreme Court found that the trial

court did not wholly fail to comply with Crim.R. 11(C)(2)(a) and that Straley must show

prejudice since the trial court had reviewed the maximum sentences with Straley and he

confirmed his understanding of those maximum sentences. Id. Here, Burns was advised of

the maximum sentence for each offense and indicated his understanding, despite not being

advised of the mandatory nature of the sentence for Felonious Assault. Consistent with

Straley, the court did not completely fail to comply with Crim.R. 11(C)(2)(a).

{¶21} Burns cites State v. Gonzalez, 9th Dist. Summit No. 29018, 2019-Ohio-4882,

for the proposition that a prejudice analysis is unwarranted where a defendant is not advised

of a mandatory sentence. In Gonzalez, the trial court failed to advise the defendant of the

mandatory, consecutive nature of his sentence. Id. at ¶ 9. This case is distinguishable from

the present matter because the failure to advise of a mandatory consecutive sentence

impacts the maximum overall sentence. Here, the maximum sentence was not changed by

the mandatory nature of the Felonious Assault term. For this reason, and under the

guidance offered by Straley, we will proceed to conduct an analysis of whether prejudice

occurred.

{¶22} “The test for prejudice is ‘whether the plea would have otherwise been

made.’” Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 16, quoting State

v. Nero, 56 Ohio St. 106, 108, 564 N.E.2d 474 (1990). Prejudice must be established “‘on

the face of the record.’” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City

Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26.

{¶23} Although Burns argues that the mandatory term for Felonious Assault “altered

the maximum sentence,” he does not explain how this is the case. Whether the term was

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mandatory did not increase the maximum amount of time he could serve overall. The

mandatory nature of the Felonious Assault term did not impact the other, proper

advisements made by the court regarding the maximum prison terms that could be served

on each of the offenses for which Burns was convicted or the aggregate maximum term.

{¶24} Because there was an agreed sentence of 14-18 years in prison, and where

Burns was aware at least some portion of the sentence was mandatory, there is also no

reason to conclude that Burns believed he would receive probation or entered a plea with

the expectation that he would not receive prison time. He was fully aware that a 14-18 year

agreed sentence was likely. See Straley at ¶ 17 (the court rejected the defendant’s

argument that he would not have pled guilty had he known his sentence was mandatory

where he was aware of the maximum sentences, he was advised the sentences could be

consecutive, and the State recommended the sentences be served consecutively).

{¶25} Burns argues that the failure to advise him of the proper mandatory term he

would serve impacted “the time before which Defendant would be eligible to petition for early

release.” Pursuant to R.C. 2929.20, in the case of a nonmandatory prison term, a defendant

can seek release after a specified period of time. For example, had all of his time been

nonmandatory, Burns would have been eligible to apply for judicial release after a period of

half of his sentence. R.C. 2929.20(C)(1)(e). When a sentence contains a mandatory term

of prison combined with nonmandatory terms, the defendant cannot seek judicial release

until a specified period of time after the mandatory term is complete. R.C. 2929.20(C)(1)(a)-

(d); State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11 (“Ohio law

provides that a prisoner cannot apply for judicial release until a period of time ‘after the

expiration of all mandatory prison terms’ in the stated prison sentence”). Burns is correct

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that the date he could file for judicial release was impacted by the mandatory nature of the

Felonious Assault sentence.

{¶26} “Unless incorporated into a plea agreement, the trial court is not under an

obligation to inform a defendant regarding his eligibility for judicial release.” State v. Mitchell,

11th Dist. Trumbull No. 2004-T-0139, 2006-Ohio-618, ¶ 14. A guilty plea may be found

invalid, however, where misinformation is given about judicial release. State v. Brownlee,

11th Dist. Lake No. 2022-L-075, 2023-Ohio-1090, ¶ 17. To warrant reversal due to such

misinformation, “the defendant must demonstrate that he was prejudiced by the erroneous

representation, i.e., that but for the misrepresentation regarding judicial release, he would

not have entered the plea.” Mitchell at ¶ 15.

{¶27} Here, there was no specific advisement given regarding Burns’ eligibility for

judicial release, apart from the court discussing judicial release in relation to indefinite

sentences: “Not that I’m thinking of judicial release, but I’m telling you that judicial release is

tied to the aggregate minimum term, not the tail. So you know, you have to wait a certain

period of time before you can file for judicial release.” While he was not provided a specific

misrepresentation about the date of judicial release, as noted above, the lack of an

advisement about a mandatory sentence did impact his eligibility date.

{¶28} However, we do not find the record indicates that, but for the failure to advise

him of the mandatory sentence and any potential misunderstanding of his eligibility for

judicial release, Burns would not have pled guilty. Burns faced a maximum sentence of 28

years and benefited from a recommended sentence of 14-18 years. As a result of his plea,

the State dismissed the charge of Attempted Murder. Further, when the second sentencing

hearing was held, Burns was advised of the error relating to the mandatory sentence and

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was given the opportunity to respond but remained silent. He did not choose to withdraw

his plea or advance an argument that he was impacted by this error. While Burns argues

his silence did not indicate his understanding of this issue as it relates to judicial release, he

also did not inquire further about the significance of this advisement or how it impacted him.

{¶29} Burns received the benefit of the sentence he sought and he was never

advised that he would receive judicial release, with the court specifically noting that it was

not “thinking of judicial release.” We do not find this rises to the level of prejudice, similar to

the court in State v. Rudy, 3d Dist. Allen Nos. 1-22-56, et al., 2023-Ohio-2023. There, the

court found that an incorrect explanation of judicial release did not result in prejudice where

judicial release was not a term of the plea agreement, the record did not indicate eligibility

for judicial release was a consideration and there were justifications leading to the entry of

the plea including the agreed sentence recommendation and dismissal of another count. Id.

at ¶ 19. See also Mitchell at ¶ 16 (“[i]f, in fact, Mitchell subjectively held some such belief

[that he expected to receive judicial release], there is not evidence of it in the record or that

such belief was essential to his decision to plead guilty”).

{¶30} Burns also emphasizes that two separate sentencing hearings were held and

that, although the court advised him at the second hearing that the sentence was mandatory,

this created an inconsistency with the plea agreement. We find no error in holding a

“continuation” of the sentencing hearing as the court had not yet entered a final judgment

on the sentence. Further, Burns provides no authority for the proposition that the plea

agreement being inaccurate warrants further action by this court or the trial court. We find

no basis to order the plea form be altered. It is accurate as to the substance of what Burns

was aware of when he entered his plea.

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 {¶31} At oral argument, defense counsel indicated that a proper remedy for the

alleged error would be either to allow Burns to withdraw his plea or to remand for

resentencing. The assignment of error raised in this appeal relates to whether the plea was

voluntarily entered rather than to the validity of the sentence itself, although we observe that,

in his conclusion, Burns argues that “the sentencing should be reversed” due to the failure

to advise Burns of the mandatory nature of the sentence. No argumentation or authority is

provided which would give a basis to reverse the sentence. There is no argument that the

sentence ultimately ordered and journalized was contrary to law and it was also consistent

with the agreed sentence recommended jointly by Burns and the State. The appropriate

relief for the error claimed by Burns, if it had merit, would be to vacate his plea. Nonetheless,

for the reasons stated above, we find no meritorious argument warranting relief.

{¶32} Finally, Burns argues that trial counsel was ineffective in his representation.

Although limited argumentation is presented as to this issue, he indicates that counsel

improperly stated that the mandatory nature of the sentence “did not change anything” in

relation to the entry of the guilty pleas.

{¶33} To demonstrate ineffective assistance of counsel, a defendant must prove “(1)

that counsel’s performance fell below an objective standard of reasonableness, and (2) that

counsel’s deficient performance prejudiced the defendant resulting in an unreliable or

fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-

389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶34} As discussed above, we do not find that prejudicial error or an unfair outcome

resulted from the entry of Burns’ plea without an advisement regarding the mandatory nature

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of the Felonious Assault or from the failure to object to it at the second sentencing hearing.

As such, even presuming it was unreasonable for counsel not to recognize the error relating

to the mandatory sentence, we do not find that it warrants reversal.

{¶35} The sole assignment of error is without merit.

{¶36} For the foregoing reasons, Burns’ convictions for Felonious Assault and

Having Weapons While Under Disability in the Lake County Court of Common Pleas are

affirmed. Costs to be taxed against appellant.

MARY JANE TRAPP, J.,

ROBERT J. PATTON, J.,

concur.

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