Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-628933-A
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Jillian J. Piteo, Assistant Prosecuting
Attorney, for appellee.
P. Stenger, for appellant.
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE
Procedural History and Factual Background
1} Appellant Leonard Hair, II ("Hair"),
appeals the trial court's judgment, entered after guilty
pleas, sentencing him to 39 years' incarceration. Hair
contends (1) the trial court erred in imposing sentences on
Count 19's specifications; (2) the trial court abused its
discretion when it imposed consecutive sentences; (3) the
trial court erred by not giving sufficient weight to the
mitigating factors under R.C. 2929.12(C); and (4) the trial
court erred by not giving sufficient weight to the mitigating
factors under R.C. 2929.12(E). For the reasons that follow,
we affirm in part, vacate in part, and remand.
2} On May 31, 2018, Hair was indicted on 24 counts
including charges of aggravated robbery, in violation of R.C.
2911.01(A)(1), and aggravated burglary, in violation of R.C.
2911.11(A)(1) and (A)(2). On June 5, 2018, Hair pleaded not
guilty to the offenses, and the case proceeded to trial on
October 10, 2018.
3} Prior to trial, Hair accepted a plea agreement
and withdrew his previously entered not guilty pleas. Hair
pleaded guilty to aggravated robbery on Counts 1, 4, 15, and
20 in violation of R.C. 2911.01(A)(1). Counts 1, 4, 15, and
20 each carried one- and three-year firearm specifications, a
notice of prior conviction specification, and a repeat
violent offender ("RVO") specification. Hair also
pleaded guilty to an amended Count 19, aggravated burglary,
in violation of R.C. 2911.11(A)(2). In the plea agreement,
the parties agreed to dismiss the one- and three-year firearm
specifications and notice of prior conviction specification
on Count 19. Hair argues Count 19's RVO specification was
also dismissed in the plea agreement but the state disagrees.
4} In exchange for Hair's guilty pleas, the
state nolled Counts 2, 3, 5-14, 16-18, and 21-24. The court
accepted Hair's pleas and found him guilty. Hair was
subsequently sentenced on November 8, 2018.
5} Hair now appeals, raising four assignments of
error for our review.
Law and Analysis
Imposing a Sentence on Count 19's RVO
6} Hair argues the trial court erred when it
sentenced him to three years on a firearm specification and
to ten years on a RVO specification under Count 19 because
the plea agreement dismissed these specifications. Hair asks
this court to find his sentence on the Count 19
specifications void. The state concedes Count 19's
firearm specifications should have been dismissed but argues
the RVO specification was to remain and, as a result, this
matter should be remanded to the trial court We find
Hair's guilty plea to Count 19 was not knowingly,
intelligently, and voluntarily entered and, therefore, was
invalid because it did not comply with Crim.R. 11.
7} The purpose of Crim.R. 11(C) is to provide the
defendant with relevant information so that he can make a
voluntary and intelligent decision whether to plead guilty.
State v. Ballard, 66 Ohio St.2d 473, 480, 423 N.E.2d
115 (1981). In determining whether a guilty plea was entered
knowingly, intelligently, and voluntarily, an appellate court
analyzes the totality of the circumstances through a de novo
review of the record. State v. Spock, 8th Dist.
Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7. The appellate
court evaluates whether the trial court fulfilled the duties
of Crim.R. 11(C)(2) to inform the defendant of the
constitutional and nonconstitutional rights he waives when he
enters a guilty plea.
8} A trial court must strictly comply with the
Crim.R. 11(C)(2)(c) requirements that relate to the waiver of
constitutional rights. State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Before
accepting a guilty plea, the trial court must advise the
defendant that his plea waives these constitutional rights:
(1) the right to a jury trial, (2) the right to confront
one's accusers, (3) the right to compulsory process to
obtain witnesses, (4) the right to require the state to prove
guilt beyond a reasonable doubt, and (5) the privilege
against compulsory self-incrimination. Id. at ¶
9} With respect to the nonconstitutional
requirements of Crim.R. 11, set forth in Crim.R. 11(C)(2)(a)
and (b), trial courts must show only substantial compliance
with the rule. State v. Hill, 8th Dist. Cuyahoga No.
106542, 2018-Ohio-4327, ¶ 8. "'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.'"
Id., quoting State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990); State v. Stewart,
51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). Even where a trial
court errs in attempting to comply with Crim.R. 11(C)(2)(a),
substantial compliance occurs if it appears from the record,
despite the trial court's error, that the defendant
understood the effect of his plea and the waiver of his
rights. State v. Tutt, 2015-Ohio-5145, 54 N.E.3d
619, ¶ 15 (8th Dist).
10} In evaluating substantial compliance with the
nonconstitutional requirements of Crim.R. 11(C)(2)(a), the
reviewing court determines whether the trial court
"partially complied" or "completely
failed" to comply with the requirement. Id. at
¶ 16. Where partial compliance occurs, the plea may be
vacated if the defendant shows a prejudicial effect.
Id. A defendant establishes prejudice where he shows
he would not have entered into the plea if the trial court
had substantially complied with the requirements of Crim.R.
11(C). State v. Moore, 8th Dist. Cuyahoga No.
105240, 2017-Ohio-8483, ¶ 17. Where the trial court
completely failed to comply, no analysis of prejudice is
required, and the plea will be vacated. Tutt at
11} In the instant case, Hair does not bring into
question the trial court's notification of his
constitutional rights. Hair argues the trial court failed to
substantially comply with his nonconstitutional rights when
it made conflicting statements about the nature of the
charges under amended Count 19. Therefore, the issue of
whether Hair knowingly, intelligently, and voluntarily made
his plea relates only to his nonconstitutional rights.
12} Just prior to voir dire, the parties reached a
plea agreement. During the court's discussion with Hair
regarding the plea agreement and the charged offenses, the
court initially indicated that the three-year firearm
specifications would apply to Count 19, aggravated burglary.
(Tr. 40-41.) Defense counsel corrected the court and stated
that specifications did not apply to Count 19 under the plea
[Defense Counsel]: I apologize, Judge. The burglary does not
have the specifications. Just the four robberies.
Court: I'm sorry. If I mentioned Count 19 has the specs,
then I apologize. I was wrong. Actually, it does have - wait
a minute. Count 19 does have them.
[Defense Counsel]: Not as part of the plea.
13} The state then clarified that the firearm
specifications were to be dismissed, but the RVO
specification would remain: "Right. I'm sorry if I
didn't outline that properly, Your Honor. We are
dismissing - we're asking the Court to dismiss the specs
on that charge and asking the RVO remain." (Tr. 41.) The
court immediately summarized the plea agreement under Count
19 by stating: "Then I misspoke, Mr. Hair. For Count 19,
if you plead guilty, you would be admitting to aggravated
burglary, an F1 with no specs, no notice of prior conviction,
and no RVO. [Prosecutor]?" (Tr. 41.) The prosecutor
acknowledged the court had correctly described the plea
agreement under Count 19 even though the trial judge's
statement did not accurately reflect prosecutor's