State v. Harris

S
[Cite as State v. Harris, 2021-Ohio-1431.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2020-CA-29
                                                  :
 v.                                               :   Trial Court Case Nos. 2019-CR-817
                                                  :
 DAREZ LEON HARRIS                                :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                             OPINION

                              Rendered on the 23rd day of April, 2021.

                                             ...........

IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

MICHAEL PENTECOST, Atty. Reg. No. 0036803, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, J.
                                                                                          -2-


       {¶ 1} Defendant-appellant, Darez Leon Harris, appeals from his conviction in the

Clark County Court of Common Pleas after he pled guilty to one count of failure to comply

with the order or signal of a police officer. In support of his appeal, Harris contends that

the trial court erred by denying his post-sentence motion to withdraw his guilty plea

without first holding an evidentiary hearing. Because the trial court’s decision denying

Harris’s motion was based, in part, on the incorrect factual finding that Harris had been

advised of the maximum possible penalty for his offense before entering his guilty plea,

we find that the trial court abused its discretion in denying Harris’s motion. Also, because

the record establishes that the trial court completely failed to comply with Crim.R.

11(C)(2)(a) by not advising Harris of the maximum possible penalty during its plea

colloquy, Harris’s guilty plea was not knowingly, intelligently, and voluntarily entered and

must therefore be vacated. The judgment denying Harris’s post-sentence motion to

withdraw his guilty plea will be reversed, Harris’s guilty plea will be vacated, and the

matter will be remanded to the trial court for further proceedings.



                           Facts and Course of Proceedings

       {¶ 2} On December 16, 2019, a Clark County grand jury returned an indictment

charging Harris with one count of failure to comply with the order or signal of a police

officer in violation of R.C. 2921.331(B)/(C)(5), a felony of the third degree. The charge

arose after law enforcement officers attempted to stop Harris’s vehicle in order to arrest

Harris on an outstanding warrant. However, instead of complying with the officers’ order

to turn off his vehicle, Harris fled from the officers at a high rate of speed. This resulted

in a high-speed pursuit between Harris and the officers that almost caused an accident.
                                                                                         -3-


For safety reasons, the officers ultimately decided to terminate their pursuit of Harris.

Harris was later arrested in Franklin County, Ohio.

       {¶ 3} On June 22, 2020, Harris entered a guilty plea to the charged offense. In

exchange for his guilty plea, the State agreed to dismiss a failure to comply charge against

Harris in an unrelated case—Clark C.P. No. 2019-CR-754.              The parties made no

agreement as to Harris’s sentence but did agree to have a presentence investigation

conducted. After conducting a plea colloquy, the trial court accepted Harris’s guilty plea

as being knowingly, intelligently, and voluntarily entered. The record of the plea hearing,

however, indicates that the trial court failed to advise Harris of the maximum possible

penalty he faced by entering a guilty plea. Nevertheless, upon accepting Harris’s plea,

the trial court scheduled the matter for sentencing.

       {¶ 4} On July 17, 2020, the trial court held a sentencing hearing and sentenced

Harris to 36 months in prison with 13 days of jail-time credit.        The trial court also

suspended Harris’s driving privileges for five years and ordered Harris to pay court costs.

Immediately after the trial court imposed its sentence, Harris orally moved the trial court

to withdraw his guilty plea. After the following discussion with Harris, the trial court

denied Harris’s motion.

       DEFENDANT:           I’m not understanding.

       THE COURT:           What’s not to understand?

       DEFENDANT:           I feel like I didn’t really know what I was pleading to.

                            There was no substantial evidence.

       THE COURT:           Okay. Well, you did know what you were pleading to

                            because I went over [it] with you in quite detail.
                                                                                         -4-


      DEFENDANT:           And I want —

      THE COURT:           Part of the agreement was the State was dismissing

                           the other charge pending against you for failure to

                           comply.

      DEFENDANT:           I would like to withdraw my plea because I feel like

                           there was no substantial evidence besides a cop

                           saying he saw me. There were no cameras. There

                           were no [sic] apprehension. There was no – I wasn’t

                           arrested. I felt like I just agreed with the system to just

                           get the case over, get on probation, get back to my

                           children.

      THE COURT:           I see.    You were not told that you were gonna get

                           community control, were you?

      DEFENDANT:           No, I was told it was an option.

      THE COURT:           You were told what the possible maximum penalty

                           would be. All the information you just stated to me you

                           knew at the time of your plea. So it appears to the

                           Court that all you’re doing is having a change of heart.

      DEFENDANT:           I’m not –

      THE COURT:           Request for change of plea is denied. You want to

                           proceed more formally, you’re certainly welcome to do

                           so.

Sentencing Trans. (July 17, 2020), p. 17-18.
                                                                                        -5-


      {¶ 5} Harris never filed a formal post-sentence motion to withdraw his guilty plea.

Harris instead filed the instant appeal from his judgment of conviction, raising one

assignment of error for review.



                                  Assignment of Error

      {¶ 6} Under his sole assignment of error, Harris contends that the trial court erred

by denying his post-sentence motion to withdraw his guilty plea without first holding an

evidentiary hearing.

      {¶ 7} As a preliminary matter, we note that the trial court’s decision denying

Harris’s post-sentence motion to withdraw his guilty plea can be challenged in this direct

appeal because the trial court’s decision was an interlocutory order that merged into the

final judgment of conviction filed by the trial court. See State v. Cochran, 2d Dist. Clark

No. 09-CA-49, 2010-Ohio-2917, ¶ 13 (trial court’s oral decision overruling motion to

withdraw guilty plea at a re-sentencing hearing was an interlocutory order that became

final and appealable as a result of the final judgment of conviction being rendered). See

also USA Freight, L.L.C. v. CBS Outdoor Group, Inc., 2d Dist. Montgomery No. 26425,

2015-Ohio-1474, ¶ 15.

      {¶ 8} “Under Crim.R. 32.1, a trial court may permit a defendant to withdraw a plea

after imposition of sentence only to correct a manifest injustice.” (Citations omitted.)

State v. Ray, 2d Dist. Champaign No. 2019-CA-31, 2020-Ohio-4769, ¶ 11. A defendant

may establish a manifest injustice “ ‘by showing that he did not enter the guilty plea in a

knowing, intelligent, or voluntary manner.’ ” State v. Leifheit, 2d Dist. Clark No. 2019-

CA-78, 2020-Ohio-5106, ¶ 16, quoting State v. Riley, 4th Dist. Washington No. 16CA29,
                                                                                           -6-


2017-Ohio-5819, ¶ 18. (Other citations omitted.) To ensure that a defendant is entering

a felony plea knowingly, intelligently, and voluntarily, the trial court must engage the

defendant personally and explain the rights set forth in Crim.R. 11(C)(2) before accepting

the plea. State v. Clark, 

119 Ohio St. 3d 239

, 2008-Ohio-3748, 

893 N.E.2d 462

, ¶ 27.

Crim.R. 11(C)(2)(a) specifically requires the trial court to explain, among other things, “the

maximum penalty involved[.]”

       {¶ 9} “ ‘A hearing [on a post-sentence motion to withdraw a guilty plea] is required

only if the facts alleged by the defendant, if accepted as true, would require the plea to

be withdrawn.’ ” State v. Hall, 2d Dist. Greene No. 2011-CA-32, 2012-Ohio-2539, ¶ 12,

quoting State v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2008-Ohio-295, ¶ 19.

That is, “ ‘[t]he movant must establish a reasonable likelihood that withdrawal of his plea

is necessary to correct a manifest injustice before a trial court must hold a hearing on his

motion.’ ” Ray at ¶ 14, quoting State v. Stewart, 2d Dist. Greene No. 2003-CA-28, 2004-

Ohio-3574, ¶ 6. “ ‘[N]o hearing is required on a post-sentence motion to withdraw a plea

where the motion is supported only by the movant’s own self-serving affidavit, at least

when the claim is not supported by the record.’ ”

Id.

{¶ 10} “We

review a trial court’s decision on a post-sentence motion to withdraw

guilty plea and on a decision granting or denying a hearing on the motion for an abuse of

discretion.” State v. Ogletree, 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-3431, ¶ 11,

citing Xenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6.              Most

instances of abuse of discretion occur when a trial court makes a decision that is

unreasonable.     AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 

50 Ohio St. 3d 157

, 161, 

553 N.E.2d 597

(1990). “A decision is unreasonable if
                                                                                          -7-


there is no sound reasoning process that would support that decision.”

Id. “A court’s

reasoning

process is not ‘sound,’ and is therefore unreasonable, when it relies on

incorrect facts.” (Citations omitted.) Pieczonka v. Pieczonka, 1st Dist. Hamilton No. C-

170173, 2017-Ohio-8899, ¶ 8. Therefore, “[a]n abuse of discretion may be found when

the trial court ‘* * * relies on clearly erroneous findings of fact.’ ” State v. Johnson, 8th

Dist. Cuyahoga No. 107617, 2019-Ohio-2332, 

138 N.E.3d 560

, ¶ 12, quoting Thomas v.

Cleveland, 

176 Ohio App. 3d 401

, 2008-Ohio-1720, 

892 N.E.2d 454

, ¶ 15 (8th Dist.); State

v. Selvaggio, 11th Dist. Lake No. 2017-L-128, 2018-Ohio-3532, ¶ 12.

       {¶ 11} As noted above, in support of his oral motion to withdraw his guilty plea,

Harris generally claimed that he had not understood his plea. Harris also claimed that

there had been no substantial evidence of his guilt, given that he was never arrested or

video-recorded fleeing from the police. In denying the motion, the trial court found that

Harris knew this information at the time of his plea, that the court went over the plea with

Harris “in quite detail,” and that Harris was “told what the possible maximum penalty would

be.” Sentencing Trans. (July 17, 2020), p. 17-18. However, the record of the plea

hearing establishes that the trial court did not advise Harris of the maximum possible

penalty for his offense before Harris entered his guilty plea. That information was wholly

omitted from the trial court’s plea colloquy.

       {¶ 12} But for the trial court’s erroneous finding as to the maximum penalty

advisement, we would have found it reasonable for the trial court to deny Harris’s post-

sentence motion to withdraw his guilty plea without first holding an evidentiary hearing.

This is because Harris’s motion was based on a bare, general assertion that he did not

understand his plea. Furthermore, Harris’s claim that there was no substantial evidence
                                                                                          -8-


of his guilt was based on information known to Harris before he entered his plea; thus,

Harris cannot reasonably contend that said information would have caused him not to

plead guilty. Therefore, the record indicates that Harris did not establish a reasonable

likelihood that the withdrawal of his guilty plea was necessary to correct a manifest

injustice.

       {¶ 13} Nevertheless, the record indicates that when ruling on Harris’s motion to

withdraw his guilty plea, the trial court incorrectly found that it had advised Harris of the

maximum possible penalty he could receive for his offense. Therefore, because the trial

court relied on that incorrect factual finding when ruling on the motion, we find, for that

reason alone, the trial court abused its discretion when it denied Harris’s post-sentence

motion to withdraw his guilty plea without a hearing.

       {¶ 14} At this juncture, we note that the only relief Harris seeks in his appeal is to

have the judgment denying his motion to withdraw his guilty plea reversed and the matter

remanded for an evidentiary hearing.       Although not explicitly argued on appeal, the

validity of Harris’s guilty plea is an underlying issue that needs to be addressed under the

circumstances of this case.

       {¶ 15} “In order to satisfy the requirements of due process, a plea of guilty * * *

must be knowing, intelligent, and voluntary, and the record must affirmatively

demonstrate” as much. State v. Chessman, 2d Dist. Greene No. 2003-CA-100, 2006-

Ohio-835, ¶ 15, citing Boykin v. Alabama, 

395 U.S. 238

, 

89 S. Ct. 1709

, 

23 L. Ed. 2d 274

(1969). “In order for a plea to be given knowingly and voluntarily, the trial court must

follow the mandates of Crim.R. 11(C).”       State v. Brown, 2d Dist. Montgomery Nos.

24520, 24705, 2012-Ohio-199, ¶ 13. “[T]he rule ‘ensures an adequate record on review
                                                                                           -9-


by requiring the trial court to personally inform the defendant of his rights and the

consequences of his plea and determine if the plea is understandingly and voluntarily

made.’ ” State v. Dangler, 

162 Ohio St. 3d 1

, 2020-Ohio-2765, 

164 N.E.3d 286

, ¶ 11,

quoting State v. Stone, 

43 Ohio St. 2d 163

, 168, 

331 N.E.2d 411

(1975).

       {¶ 16} Generally speaking, “a defendant is not entitled to have his plea vacated

unless he demonstrates he was prejudiced by a failure of the trial court to comply with the

provisions of Crim.R. 11(C).”

Id. at ¶ 16,

citing State v. Nero, 

56 Ohio St. 3d 106

, 108,

564 N.E.2d 474

(1990). There are, however, two exceptions to this rule.

Id. at ¶ 14-16.

       {¶ 17} The first exception is that the trial court must comply strictly with Crim.R.

11(C)(2)(c) as it pertains to the waiver of federal constitutional rights.

Id. at ¶ 14.

“When

a trial court fails to explain the constitutional rights that a defendant waives by pleading

guilty or no contest, we presume that the plea was entered involuntarily and unknowingly,

and no showing of prejudice is required.” Id., citing Clark, 

119 Ohio St. 3d 239

, 2008-

Ohio-3748, 

893 N.E.2d 462

, at ¶ 31.

       {¶ 18} The second exception is that “a trial court’s complete failure to comply with

a portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.”

(Emphasis sic.)

Id. at ¶ 15,

citing State v. Sarkozy, 

117 Ohio St. 3d 86

, 2008-Ohio-509,

881 N.E.2d 1224

, ¶ 22. However, a defendant still must show prejudice if the trial court

partially complied with Crim.R. 11(C) in regard to a non-constitutional right. State v.

Bishop, 

156 Ohio St. 3d 156

, 2018-Ohio-5132, 

124 N.E.3d 766

, ¶ 19.

       {¶ 19} Pursuant to Crim.R.11(C)(2)(a), the trial court was required to personally

address Harris in order to ensure that Harris understood the maximum possible penalty

he could receive before pleading guilty. This is a non-constitutional right; therefore, if the
                                                                                          -10-


trial court completely failed to comply with this rule, Harris’s plea may be vacated without

his showing any prejudice.

       {¶ 20} As previously discussed, the trial court did not advise Harris of the maximum

possible penalty he faced during its plea colloquy. The trial court did, however, ensure

that Harris reviewed and understood the written plea agreement, a form which set forth

the maximum possible penalty that Harris faced. Some courts have held that discussing

a written plea form (which contains the maximum possible penalty) at the plea hearing

and ensuring that the defendant understands its contents amounts to substantial

compliance with Crim.R. 11(C)(2)(a). See, e.g., State v. Dorsey, 6th Dist. Lucas No. L-

15-1174, 2016-Ohio-740, ¶ 11; State v. Williams, 10th Dist. Franklin No. 10AP-1135,

2011-Ohio-6231, ¶ 39-41. However, since the Supreme Court of Ohio’s decision in

Dangler, it has been held that simply ensuring that a defendant understands a written

plea form is not a cure for the trial court’s complete failure to orally advise the defendant

about the maximum possible penalty at the plea hearing. See State v. Rogers, 2020-

Ohio-4102, 

157 N.E.3d 142

, ¶ 14-26 (12th Dist.).

       {¶ 21} In Rogers, the Twelfth District Court of Appeals reviewed whether there was

a complete failure to comply with Crim.R. 11(C)(2)(a) under circumstances where the trial

court failed to advise the defendant of a mandatory fine during the plea colloquy. The

trial court, however, ensured that the defendant reviewed, signed, and understood the

written plea agreement, which set forth the mandatory fine. Under those circumstances,

the Twelfth District explained that:

              Pursuant to Crim.R. 11(C)(2), a trial court’s determination that a

       defendant entering a guilty plea understands the maximum penalty involved
                                                                                 -11-


must precede the court’s acceptance of the plea. This is accomplished by

the trial court “addressing the defendant personally.” Neither post-colloquy

events nor a plea form signed by a defendant are relevant in reviewing

whether a trial court has complied with Crim.R. 11(C)(2). The trial court’s

failure to advise Rogers of the mandatory fine during the plea colloquy does

not comply with the requirement of Crim.R. 11(C)(2)(a) that a trial court

“first” determine a defendant’s understanding of the maximum penalty

before accepting the plea. Neither does Rogers’ mere execution of the

plea form satisfy the requirement of Crim.R. 11(C)(2)(a) that the trial court

“personally address” a defendant to determine that the plea is entered with

an understanding of the maximum penalty involved.

       We note that Rogers and the state both discuss whether the trial

court substantially complied with Crim.R. 11(C)(2) during the plea colloquy.

In particular, the state cites a case for the proposition that a trial court’s

acceptance of a guilty plea without advising the defendant that a fine could

be imposed constitutes substantial compliance with Crim.R. 11(C)(2)(a)

where the defendant signs a plea agreement before entering his guilty plea

that informs him of the fine. See State v. Mohr, 3d Dist. Van Wert No. 15-

98-05, 

1999 WL 797048

(Sept. 16, 1999). This reflects the law that was

applicable at the time the parties filed their briefs.   However, a recent

decision of the Ohio Supreme Court reveals that whether a trial court

substantially complies with Crim.R. 11(C)(2) is no longer part of the analysis

in reviewing a trial court’s plea colloquy. See [State v. Dangler, 

162 Ohio
-12-

       St.3d 1, 2020-Ohio-2765, 

164 N.E.3d 286

].

Rogers at ¶ 14-15.

       {¶ 22} Rogers then discussed what constituted a “complete failure to comply” with

Crim.R. 11(C)(2)(a) and stated that:

               “[A] trial court’s total failure to inform a defendant of a distinct

       component of the maximum penalty during a plea colloquy constitutes a

       complete failure to comply with Crim.R. 11(C)(2)(a), thereby requiring the

       vacation of the defendant’s guilty or no contest plea.” [State v. Fabian,

       12th Dist. Warren No. CA2019-10-119, 2020-Ohio-3926, ¶ 20]. “Or stated

       differently, a complete failure to comply with Crim.R. 11(C)(2)(a) involves a

       trial court’s complete omission in advising about a distinct component of the

       maximum penalty. By contrast, a trial court’s mention of a component of

       the maximum penalty during a plea colloquy, albeit incomplete or perhaps

       inaccurate, does not constitute a complete failure to comply with Crim.R.

       11(C)(2)(a).”

Id.

Id. at ¶

19.

       {¶ 23} In applying these principles, Rogers held that:

               The trial court did not simply misinform Rogers about the fine, such

       as the amount or whether it was mandatory or discretionary. Rather, the

       court made no mention of the fine during the plea colloquy. Consequently,

       the trial court’s total failure to inform Rogers of the mandatory $7,500 fine,

       which was a part of the maximum penalty, before it accepted the guilty plea

       constituted “a trial court’s complete failure to comply with a portion of
                                                                                          -13-


       Crim.R. 11(C)” pursuant to the second exception to the prejudice

       requirement. (Emphasis sic.) Sarkozy, 2008-Ohio-509 at ¶ 22, 117 Ohio

       St.3d 86, 

881 N.E.2d 1224

.

Rogers, 2020-Ohio-4102, 

157 N.E.3d 142

, at ¶ 23.

       {¶ 24} In reference to the written plea form, Rogers further explained that:

              The record further suggests that Rogers was aware he faced a

       mandatory $7,500 fine based upon the plea form he signed which plainly

       indicated a mandatory fine of $7,500 on Count 2. However, while “[a]

       written acknowledgment of a guilty plea and a waiver of trial rights executed

       by an accused can, in some circumstances, reconcile ambiguities in the oral

       colloquy that Crim.R. 11(C) prescribes, * * * the writing does not substitute

       for an oral exchange when it is wholly omitted.” State v. Dixon, 2d Dist.

       Clark No. 2001-CA-17, 

2001 WL 1657836

, *3 (Dec. 28, 2001). “Crim.R.

       11(C) requires that form of exchange to insure that the defendant makes a

       voluntary and intelligent decision whether to plead guilty.”

Id. “This court

examines

compliance with Crim.R. 11 by examining the trial court's

       communication to the defendant, not the defendant’s subjective

       understanding of his rights.” State v. Gipson, 1st Dist. Hamilton No. C-

       970891, 

1998 WL 682153

, *3 (Sept. 30, 1998).

              In light of all of the foregoing, we find that the trial court completely

       failed to comply with Crim.R. 11(C)(2)(a) and Rogers' guilty plea was not

       knowingly, intelligently, and voluntarily made.

Id. at ¶ 25-26.
-14-

        {¶ 25} We note that Dixon, 2d Dist. Clark No. 2001-CA-17, 

2001 WL 1657836

,

involved the trial court’s failure to advise the defendant of one of the constitutional rights

under Crim.R. 11(C)(2)(c). However the statement Rogers cited in Dixon is not limited

to constitutional advisements, as Dixon stated the following:

               A written acknowledgment of a guilty plea and a waiver of trial rights

        executed by an accused can, in some circumstances, reconcile ambiguities

        in the oral colloquy that Crim.R. 11(C) prescribes. However, the writing

        does not substitute for an oral exchange when it is wholly omitted. Crim.R.

        11(C) requires that form of exchange to insure that the defendant makes a

        voluntary and intelligent decision whether to plead guilty. On appellate

        review, “the focus ... is whether the record shows that the trial court referred

        to the right in a manner reasonably intelligible to that defendant.” [State v.

        Ballard, 

66 Ohio St. 2d 473

, 

423 N.E.2d 115

(1981), paragraph two of the

        syllabus.]

Id. at *3.

        {¶ 26} Like the defendant in Rogers, Harris might have been aware of the

maximum penalty he faced by virtue of reviewing the written plea agreement. However,

Rogers and Dixon both indicate that simply ensuring that a defendant understands a

written plea form is not a cure for the trial court’s complete failure to orally advise a

defendant about the maximum possible penalty during the plea colloquy. In so holding,

we note that this case is distinguishable from this court’s recent decision in State v.

Ebbing, 2d Dist. Montgomery No. 28823, 2021-Ohio-865, ¶ 20, wherein we found partial

compliance with Crim.R. 11(C)(2)(a) under circumstances where the trial court advised
                                                                                         -15-


the defendant of the maximum possible penalty at the plea hearing save for completely

omitting the fact that the trial court could impose a discretionary five-year license

suspension, which the court ultimately never imposed. Unlike Ebbing, the trial court in

this case completely failed to advise Harris about any aspect of the maximum possible

penalty he faced, i.e. that he could receive 36 months in prison, a $1,000 fine and a three-

year license suspension. Therefore, because the trial court’s plea colloquy completely

failed to comply with the maximum penalty portion of Crim.R. 11(C)(2)(a), we find that no

showing of prejudice is required to vacate Harris’s guilty plea.

       {¶ 27} Harris’s sole assignment of error is sustained.



                                       Conclusion

       {¶ 28} Having sustained Harris’s sole assignment of error, the trial court’s

judgment denying Harris’s post-sentence motion to withdraw his guilty plea is reversed,

Harris’s guilty plea is vacated, and the matter is remanded to the trial court for further

proceedings.

                                       ...........

TUCKER, P.J. and DONOVAN, J. concur.

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Ian Richardson
Michael Pentecost
Hon. Richard J. O’Neill

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