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State v. Hair

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
LEONARD HAIR, II, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628933-A


          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jillian J. Piteo, Assistant Prosecuting Attorney, for appellee.

          Brion P. Stenger, for appellant.



         I. 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.

         II. Law and Analysis

         A. Imposing a Sentence on Count 19's RVO Specification

         {¶ 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[1] 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 ¶ 31.

         {¶ 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 ¶ 16.

         {¶ 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 agreement:

[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.

(Tr. 41.)

         {¶ 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 ...

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