Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeals from the Cuyahoga County Court of Common
Pleas Case Nos. CR-17-618705-A and CR-17-619164-A
ATTORNEY FOR APPELLANT Britta M. Barthol P.O. Box 670218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Amanda Hall Assistant County Prosecutor
BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, JUDGE
Defendant-appellant, Kelvon Maddox, appeals his convictions
and sentence from two cases: Cuyahoga C.P. Nos. CR-17-618705
and CR-17-619164. He raises two assignments of error for our
1. Appellant did not enter into his guilty plea knowingly,
intelligently, and voluntarily as the trial court failed to
properly inform him of the maximum and correct penalties as
required by [Crim.R] 11(C)(2)(a).
2. The trial court imposed a sentence that is contrary to law
when it failed to make all the factual findings necessary to
sentence appellant to consecutive sentences under RC.
Finding no merit to his arguments, we affirm.
Procedural History and Factual Background
In June 2017, the Cuyahoga County Grand Jury indicted Maddox
on six counts in Cuyahoga C.P. No. CR-17-618705: two counts
of attempted murder and four counts of felonious assault. All
counts carried one- and three-year firearm specifications.
The police report leading to this indictment indicates that
on January 18, 2017, at around 12:45 a.m., Maddox was at a
gas station on Kinsman Road in Cleveland, Ohio, when he began
exchanging words with two people inside a blue SUV. Video
footage from the gas station shows that Maddox pulled a
handgun from his waistband and began shooting inside the
vehicle. When police arrived, they found that one victim had
been shot in the shoulder, which caused the bone to break,
and the other victim had a cut on her head from broken glass.
In July 2017, the Cuyahoga County Grand Jury indicted Maddox
on three counts in Cuyahoga C.P. No. CR-17-619164, including
one count each of attempted murder, felonious assault, and
vandalism. The attempted murder and felonious assault counts
carried one- and three-year firearm specifications. The
police report from this incident indicates that Maddox was at
the same gas station on June 21, 2017, at around 1:45 a.m.
The door to the gas station was locked, but the gas station
was still open at the drive-through window. Maddox got mad
that he could not go inside the station. The clerk said
something to Maddox, and Maddox responded by pulling a gun
out of his waistband, and placing the gun against the glass
door. The clerk "was standing on the other side of the
door with his head turned." Maddox shot the gun at the
victim's head. The bullet shattered the glass door, and
the victim was hit by the glass "but somehow was able to
avoid the bullet."
The trial court held a joint plea hearing on both cases in
September 2017. In Case No. CR-17-618705, Maddox pleaded
guilty to felonious assault in violation of R.C.
2903.11(A)(2), a felony of the second degree, with a one-year
firearm specification. In Case No. CR-17-619164, Maddox
pleaded guilty to felonious assault in violation of R.C.
2903.11(A)(2), a felony of the second degree, with a
three-year firearm specification. The remaining counts in
both cases were dismissed.
The trial court sentenced Maddox to seven years in prison for
felonious assault in Case No. CR-17-618705, plus one year for
the firearm specification, and seven years in prison for
felonious assault in Case No. CR-17-619164, plus three years
for the firearm specification. The trial court ordered that
the firearm specifications be served prior to and consecutive
to the base charges of felonious assault and to each other,
and ordered the seven years on each felonious assault charge
to be served consecutive to each other, for an aggregate
sentence of 18 years in prison. The trial court further
notified Maddox that he would be subject to a mandatory
period of three years of postrelease control upon his release
from prison, and it waived costs and fines. Maddox now
appeals from the sentencing judgments in both cases.
Maximum Penalty Notification under Crim.R.
In his first assignment of error, Maddox argues that his
guilty pleas were not knowingly, voluntarily, and
intelligently entered into because the trial court failed to
advise him of the maximum penalty he would face under Crim.R.
The standard for reviewing whether the trial court accepted a
plea in compliance with Crim.R. 11(C) is de novo. It requires
an appellate court to review the totality of the
circumstances and determine whether the plea hearing was in
compliance with Crim.R. 11(C). State v. Cardwell,
8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26,
citing State v. Stewart, 51 Ohio St.2d 86, 364
N.E.2d 1163 (1977).
Crim.R. 11(C)(2)(a) provides in pertinent part that the court
shall not accept a plea of guilty or no contest without first
addressing the defendant personally and * * * [determining
that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
The requirements of Crim.R. 11(C)(2)(a) are
nonconstitutional, and thus, this court reviews "to
ensure substantial compliance" with this rule. State
v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654,
¶ 4. "Under this standard, a slight deviation from
the text of the rule is permissible; so long as the totality
of the circumstances indicates that 'the defendant
subjectively understands the implications of his plea and the
rights he is waiving.'" State v. Clark, 119
Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31,
quoting State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d
When the trial court does not" substantially
comply" with Crim.R. 11(C)(2)(a), a reviewing court must
then "determine whether the trial court
partially complied or failed to comply with
this rule." (Emphasis sic.) Clark at ¶ 32.
"If the trial judge partially complied, e.g., by
mentioning mandatory postrelease control without explaining
it, the plea may be vacated only if the defendant
demonstrates a prejudicial effect." Id., citing
Nero. As repeatedly recognized by the Ohio Supreme
Court, "a defendant must show prejudice before a plea
will be vacated for a trial court's error involving
Crim.R. 11(C) procedure when nonconstitutional aspects of the
colloquy are at issue." State v. Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17;
see also State v. Griggs, 103 Ohio St.3d 85,
2004-Ohio-4415, 814 N.E.2d 51, ¶ 12; Nero at
"The test for prejudicial effect is 'whether the
plea would have otherwise been made.'"
Clark at ¶ 32, quoting Nero. "If
the trial judge completely failed to comply with the rule * *
*, the plea must be vacated." Id., citing
State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,
881 N.E.2d 1224. A complete failure to comply with the rule,
however, does not implicate an analysis of prejudice.
Sarkozy at ¶ 22.
Specifically, Maddox contends that his plea was not
knowingly, voluntarily, and intelligently entered into
because the trial court did not properly advise him of the
consecutive nature of the firearm specifications as set forth
in R.C. 2929.14(B)(1)(g), which provides:
If an offender is convicted of or pleads guilty to two or
more felonies, if one or more of those felonies [is] * * *
felonious assault * * *, and if the offender is convicted of
or pleads guilty to a [firearm] specification * * * under
division (B)(1)(a) of this section in connection with two or
more of the felonies, the sentencing court shall impose on
the offender the prison term specified under division
(B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which
the offender pleads guilty[.]
The plain language of this statute mandates that a trial
court is precluded from merging firearm specifications
underlying separate charges where: (1) a defendant pleads
guilty to two felonies, one of which is felonious assault;
and (2) the defendant also pleads guilty to firearm
specifications under R.C. 2929.14(B)(1)(a) in connection with
both of those felonies.
In the instant case, Maddox pleaded guilty to two separate
felonious assault charges, one of which included a one-year
firearm specification under R.C. 2941.141(A) and one that
included a three-year firearm specification under R.C.
2941.145(A). Both of these firearm-specification provisions
are listed under R.C. 2929.14(B)(1)(a). Accordingly, R.C.
2929.14(B)(1)(g) applies, and the trial court was precluded
from merging the firearm specification underlying the two
felonious assault convictions.
The following relevant exchange occurred at the plea hearing
between the trial court and Maddox:
THE COURT: * * * In 618705, you'll be pleading guilty to
felonious assault. The three-year firearm specification is
going to be deleted, and [the victims] will be ...