author: ANITA LASTER MAYS, J.:

text:
    CITY OF ROCKY RIVER, Plaintiff-Appellee v. Scott L. ZORC, Defendant-Appellant
    No. 105596
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 1, 2018
    Jonathan N. Garver, The Brownhoist Building, 4403 St. Clair Avenue, Cleveland, Ohio 44103, ATTORNEY FOR APPELLANT
    Andrew D. Bemer, Rocky River Law Director, By: Michael J. O'Shea, Assistant Prosecuting Attorney, Rocky River Law Department, 21012 Hilliard Boulevard, Rocky River, Ohio 44116, ATTORNEYS FOR APPELLEE
    BEFORE: Laster Mays, J., Kilbane, P.J., and McCormack, J.
    JOURNAL ENTRY AND OPINION
   ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant Scott L. Zorc ("Zorc") appeals his conviction for failure to change lanes when approaching a stationary public safety vehicle in violation of the city of Rocky River Codified Ordinances 333.031(A)(1). We reverse and vacate.

I. Background and Facts

{¶ 2} On May 18, 2016, the city of Rocky River issued a complaint against Zorc for two traffic violations occurring on April 18, 2016. Zorc was charged with violating: (1) the city of Rocky River Codified Ordinances 333.031(a)(1) by failing to change lanes when approaching a Rocky River police vehicle with lights activated; and (2) the city of Rocky River Codified Ordinances 333.09(A) due to reckless operation of a motor vehicle.

{¶ 3} On June 13, 2016, Zorc entered a plea of not guilty. A bench trial was conducted before the magistrate on November 3, 2016, and December 1, 2016. Officers Krebs, Dudas, and Riley from the Westlake police department, and Rocky River police department officers King, Bowen, and Blazer testified. Exhibits included dash cam videos and still photographs of the dash cam scenes.

{¶ 4} On April 18, 2016, at approximately 11:23 a.m., Officer Krebs was involved in a high speed pursuit of a white van that eventually proceeded eastbound on Interstate 90 ("I-90"). Officer Krebs radioed dispatch for assistance from the Westlake and Rocky River police departments. Officers Dudas and Riley joined the pursuit. The speed of the vehicles exceeded 90 miles per hour.

{¶ 5} The three Westlake officers testified that their lights and sirens were activated during the pursuit and that the Rocky River police cruiser positioned on the left side of the highway berm with lights activated during the pursuit ("Rocky River cruiser") was visible from a distance. Officers Blazer and Bowen were manning the Rocky River cruiser and were positioned to deploy stop stick tire deflators to slow down the van. The Westlake officers stated that other vehicles moved over from the far left lane due to the presence of the Rocky River cruiser, demonstrating that the Rocky River cruiser was visible to oncoming traffic.

{¶ 6} Zorc was traveling eastbound in the far left lane of the three-lane highway ahead of the pursuit. Joint exhibit No. 1, the dash cam video recording from Officer Riley's cruiser, was introduced into evidence during his testimony. Officer Riley pointed out several other cars pulling over to the right lanes in deference to the Rocky River cruiser, but Zorc's vehicle did not.

{¶ 7} Officer King confirmed that the Westlake police cruisers pursued with lights and sirens activated. He also stated the Rocky River cruiser could be observed from a distance positioned with lights activated.

{¶ 8} Officers Blazer and Bowen manned the Rocky River cruiser. The lights were activated, but the siren was not. Officer Blazer was positioned in front of the Rocky River cruiser, waiting to throw the stop sticks in front of the approaching van that was proceeding in the far left high speed lane behind appellant's vehicle.

{¶ 9} Officer Blazer tossed the stop sticks into the lane as Zorc and the van approached. The sticks punctured the van's two left tires and Zorc's right tire. Officer Blazer testified that he and Officer Bowen who continued in pursuit were ordered to return to the scene of Zorc's disabled vehicle. The officers asked Zorc whether he wanted to file an incident report. Zorc mentioned that he suffered from a medical condition, so the police supervisor instructed the officers to let Zorc leave because charges could be sent by summons.

{¶ 10} At the close of the city's case, Zorc moved for judgment of acquittal under Crim.R. 29(A). The magistrate ordered that the parties brief the issue and scheduled a hearing for December 1, 2016. On that date, the trial court granted acquittal of the reckless operation charge, and Zorc decided to testify as to the remaining charge.

{¶ 11} Zorc's testimony reflected that he is age 64, is a Vietnam veteran who receives disability assistance. He suffers from Myasthenia Gravis, a chronic autoimmune neuromuscular disorder. Symptoms of the disease include muscle weakness, difficulty walking, and extreme fatigue. The symptoms are aggravated by stress and other activities.

{¶ 12} Zorc asserted that he was not aware of the police chase until it was upon him. He did see the Rocky River cruiser on the berm and was focused on changing lanes safely but there were vehicles in his way. At the point that Zorc approached the Rocky River cruiser, the speeding van passed him to his right, preventing him from moving over. Instead, Zorc states he slowed down and carefully passed the officers standing in the berm by the Rocky River cruiser. Officer Blazer deployed the stop sticks, puncturing the left tires of the van as well as Zorc's right front tire. Zorc confirmed that he did not receive a citation at the scene, but he did receive one by mail 30 days after the incident, which was two days after contacting the Rocky River police department to request reimbursement for the damaged tire.

{¶ 13} The magistrate found Zorc guilty of failing to change lanes and signed the dismissal of the reckless operation charge. On December 8, 2016, Zorc filed objections to the magistrate's report. The city failed to file a brief in response to the objections in spite of the trial court's December 12, 2016 order. On February 6, 2017, after submission of the hearing transcripts, the trial court agreed to review the exhibits and transcripts prior to ruling on the objections.

{¶ 14} On March 6, 2017, the trial court ruled on the objections.

To rule on the objections filed by defendant herein, the Court read the transcript from the trial and viewed the dash cam videos marked as Joint Exhibit 1 and Joint Exhibit 2.
The Court finds that the two dash camera videos viewed along with the testimony show that the highway was not crowded at the time in question. Further, defendant did not activate his turn signal which he should have done if he was trying to move over to the lane on his right. The videos show defendant made no effort to move over and that had he slowed down and activated his turn signal he would have been able to do so. Based upon this review, the defendant's Objections to the Magistrate Decision are overruled.
The Court adopts the recommendation of the Magistrate wherein she found defendant guilty of approaching a stationary public safety vehicle. This is now a final Judgment of this Court. Further, the Court adopts the recommendation as to sentencing. Fine is waived. Defendant owes costs and said costs are ordered to be paid by 3/30/17 by 4:00 p.m.

II. Assignments of Error

{¶ 15} Zorc filed the instant appeal, challenging the sufficiency and manifest weight of the evidence. We combine the assigned errors for analysis.

A. Standard of Review

{¶ 16} Crim.R. 29(A) tests the sufficiency of the evidence. State v. Hoskin-Hudson , 8th Dist. Cuyahoga No. 103615, 2016-Ohio-5410, 2016 WL 4399572, ¶ 7, citing State v. Capp , 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, 2016 WL 541444, ¶ 19. The Ohio Supreme Court has explained that, "[t]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different." State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶ 17} "Sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387, 678 N.E.2d 541.

{¶ 18} Viewed in a light most favorable to the prosecution, did the state meet its burden of production? The question is not whether the prosecution's evidence "is to be believed, but whether, if believed, the evidence admitted at trial supported the conviction." State v. Rudd , 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, 2016 WL 193495, ¶ 32, citing State v. Hunter , 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, 2006 WL 23252, ¶ 41, Thompkins at 390, 678 N.E.2d 541, State v. Starks , 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, 2009 WL 1965296, ¶ 25. Would " 'any rational trier of fact' " find that " 'the essential elements of the crime [were] proven beyond a reasonable doubt.' " State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 19} In contrast, we sit as a thirteenth juror and intercede only where it is apparent that "a jury has 'lost its way' " when entertaining a manifest weight challenge. State v. Stewart, 8th Dist. Cuyahoga No. 86411, 2006-Ohio-813, 2006 WL 440153, ¶ 11, quoting Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. While we "may determine" that the trial court's judgment "is sustained by sufficient evidence," we "may nevertheless conclude that the judgment is against the weight of the evidence." Thompkins at 387, 678 N.E.2d 541.

B. Discussion

{¶ 20} Rocky River Codified Ordinances 333.031(A)(1) is the local codification of R.C. 4511.213(A)(1). The ordinance requires that a driver "approaching a stationary public safety vehicle" with emergency lights activated "shall," on a highway consisting of two or more lanes of traffic traveling in the same direction "shall proceed with due caution and, if possible with due regard to the road, weather, and traffic conditions, shall change lanes into a lane that is not adjacent to" the "safety vehicle."

{¶ 21} A review of the video recordings in this case is instructive. Officer Riley's video depicts a divided highway with three eastbound lanes near the Rocky River cruiser's location. Officer Riley is in pursuit of the van, followed by a second cruiser. The Rocky River cruiser is parked with lights activated on the inner berm area on the far left side of the highway, against the highway divider wall. The van is in the left lane followed by officer Riley and a second police cruiser. As the vehicles approach the Rocky River cruiser, the van seeks to shift right to the center lane to move around Zorc to escape the police, but is unable to move immediately due to vehicles in the center lane.

{¶ 22} The van's attempt to shift brings Zorc's vehicle briefly into view on the inside lane. The van shifted back into Zorc's lane. Immediately prior to reaching the Rocky River cruiser, the vehicles in the center lane shifted to the right lane, the van immediately shifted to the center lane, and Zorc and the van were momentarily parallel when passing the Rocky River cruiser. The stop sticks were deployed and appeared to be immediately effective in impeding Zorc's progress who promptly hit his brakes. The van continued in the center lane with damage to the two left tires. Officer Riley and the second cruiser (still in pursuit) passed Zorc's vehicle on the left berm.

{¶ 23} Joint exhibit No. 2, the Rocky River video also provides insight. The Rocky River dash cam cruiser was in the center lane when the van and two Westlake police cruisers sped past him in the left lane. Several vehicles can be viewed in the center lane as the van and police rapidly approach the cruiser's location. The second cruiser in pursuit attempted to move over to the center lane but shifted back due to traffic in the center lane. The Rocky River dash cam cruiser moved to the left lane behind the Westlake police cruisers. The dash cam data indicates the speed of the Rocky River police cruiser at 97 miles per hour at one point, and the van and officers were still distancing themselves from the recording vehicle.

{¶ 24} As the center lane vehicles approached the Rocky River cruiser, and the van and officers in pursuit drew closer, several vehicles shifted from the center to the right lane and the van quickly shifted to center passing Zorc as the sticks were deployed. Zorc braked and quickly stopped as a result of the stop sticks, the Westlake police cruisers passed on the left berm and the Rocky River police cruiser with the dash cam passed Zorc in the center lane.

{¶ 25} Zorc stated that he was initially unaware that vehicles were approaching behind him at speeds in excess of 90 miles per hour. With the pursuit, traffic next to him, flashing lights on the Rocky River cruiser ahead, and the quick shift by the van when the center lane traffic moved over, there was little time to react.

{¶ 26} The ordinance dictates that Zorc "shall proceed with due caution and, if possible with due regard to the road, weather, and traffic conditions," move to the adjacent lane. Viewed in a light most favorable to the prosecution, the evidence does not support a willful failure to move over.

{¶ 27} We do not find that the evidence was sufficient to support Zorc's conviction. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. Because we found insufficient evidence to support his conviction, his manifest weight of the evidence argument is moot. See App.R. 12(A)(1)(c) ; State v. Shabazz , 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, 2014 WL 1775686, ¶ 46.

{¶ 28} The trial court's order is reversed, and upon remand, appellant's conviction shall be vacated and points removed from the Ohio Bureau of Motor Vehicles.

MARY EILEEN KILBANE, P.J., and TIM McCORMACK, J., CONCUR

      After the instant appeal was filed, the case was remanded to the trial court to adopt the magistrate's recommendation and issue a final order. The order was issued on July 27, 2017.


source: Caselaw Access Project

author: MARY J. BOYLE, J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Ersa FRIERSON, Defendant-Appellant
    No. 105618
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 1, 2018
    Mark Stanton, Cuyahoga County Public Defender, BY: Paul Kuzmins, John T. Martin, Assistant Public Defenders, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Michael Lisk, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, Ersa Frierson, appeals his conviction. He raises six assignments of error on appeal:

1. Trial counsel was ineffective when he failed to challenge the single photo identification of the appellant as the alleged offender.
2. Trial counsel was ineffective when he failed to object to critical hearsay evidence that was used to connect him to the crime alleged.
3. Counsel was ineffective when he failed to request closing arguments.
4. The appellant was not provided the effective assistance of counsel where his lawyer failed to obtain the assistance of any eyewitnesses identification expert.
5. Appellant's conviction for drug trafficking is against the manifest weight of the evidence where his identification as the suspect was made under highly questionable and [sic] circumstances and in violation of Ohio R.C. 2933.83.
6. The trial court's verdict of guilty on once [sic] count of drug trafficking should be set aside as the trial court's verdict is inconsistent with its verdict on the other two counts.

{¶ 2} Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

{¶ 3} The Cuyahoga County Grand Jury indicted Frierson with one count of trafficking in violation of R.C. 2925.03(A)(1), one count of trafficking in violation of R.C. 2925.03(A)(2), and one count of drug possession in violation of R.C. 2925.11(A). Frierson waived his right to a trial by jury, electing to try the case before the bench. The following evidence was presented at trial.

{¶ 4} On April 15, 2016, Detective Matos of the Cleveland Police Department's Vice Unit organized a drug sale between a confidential informant and a suspect known as "D." The sale was set to take place around 7:00 p.m. near West 116th Street and Lorain Avenue in Cleveland. After searching him for contraband, Detective Matos dropped off the informant, who was wearing a wire and was provided with "buy money" to purchase the drugs, near that location and then took a covered position nearby. Other officers from the Cleveland Police Department, including Detectives Duller and Pitts, were also nearby the sale location to effectuate a "take down" and arrest the suspect once the sale was complete.

{¶ 5} Detective Matos testified that the informant entered a gray minivan to complete the sale and then returned to her vehicle with a rock of crack cocaine. On cross-examination, Detective Matos explained that because the suspect fled the scene, officers were not able to account for the "buy money" used to purchase the crack cocaine. She testified that she never saw the driver of the minivan, but was able to record the van's license plate number.

{¶ 6} Detective Duller testified that after Detective Pitts and he, who were in the same vehicle, received confirmation that the sale was complete, they proceeded to the suspect's location. As the detectives came to an intersection on West 117th Street, however, the suspect, who was fleeing from police, made a left-hand turn, crossing in front of and driving by the detectives' vehicle in the opposite direction. Detective Duller stated that he was in the passenger seat and was only 15 to 20 feet away from the defendant at the time he observed the suspect make the left-hand turn. He testified that his opportunity to view the driver was fairly quick, but that the lighting conditions were good as it was still early evening and that he remembered the driver's facial features.

{¶ 7} Detective Pitts testified that as he approached the intersection on West 117th Street, the minivan made a left-hand turn going between 35 to 45 m.p.h. and that he got a "real good look" at the driver, even though it happened quickly. Detective Pitts stated that he recognized the driver, but could not remember his name at the time. He testified that officers terminated the pursuit a short time later for safety purposes.

{¶ 8} Detective Matos testified that after the car chase, she searched through the Ohio Law Enforcement Gateway ("OHLEG"), the Cleveland Police Department's record-management system, with the minivan's license plate information. She testified that the minivan was registered to a woman and, after searching that woman's personal information, discovered that she and Frierson were acquaintances. Detective Matos testified that she also searched Lexus Nexus for information connected to the phone number that the confidential informant used to contact the suspect. She testified that the phone number was registered to a different woman who listed the same address that was listed for Frierson.

{¶ 9} Detective Matos testified that she then searched Frierson through OHLEG, printed out a report with his photograph, and within a few hours of the car chase, showed it to Detectives Pitts and Duller. Both detectives identified Frierson as the driver and stated they were confident in their identification. Detectives Pitts and Duller also later identified Frierson as the driver of the minivan during the trial.

{¶ 10} The state then rested its case, and Frierson moved for directed verdict under Crim.R. 29. After hearing oral argument from both Frierson and the state, the court denied the motion. Frierson then rested its case without calling any witnesses and renewed his Crim.R. 29 motion, which the court denied. The court then adjourned the proceedings for deliberation without closing arguments.

{¶ 11} The court found Frierson not guilty of drug trafficking in violation of R.C. 2925.03(A)(1) and drug possession in violation of R.C. 2925.11(A), but found him guilty of drug trafficking in violation of R.C. 2925.03(A)(2). The court sentenced Frierson to one and a-half years of community control sanctions.

{¶ 12} It is from this judgment that Frierson now appeals.

II. Law and Analysis

A. Ineffective Assistance of Counsel

{¶ 13} The defendant carries the burden of establishing a claim of ineffective assistance of counsel on appeal. State v. Corrothers , 8th Dist. Cuyahoga No. 72064, 1998 WL 57094, *7 (Feb. 12, 1998), citing State v. Smith , 3 Ohio App.3d 115, 444 N.E.2d 85 (8th Dist. 1981). To gain reversal on a claim of ineffective assistance of counsel, a defendant must show that (1) his "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong of Strickland 's test requires the defendant to show "that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. Strickland 's second prong requires the defendant to show "a reasonable probability that but for counsel's errors, the proceeding's result would have been different." State v. Winters , 8th Dist. Cuyahoga No. 102871, 2016-Ohio-928, 2016 WL 936116, ¶ 25, citing Strickland .

{¶ 14} When deciding claims of ineffective assistance of counsel, courts may analyze the two prongs out of order. Id. at 697, 104 S.Ct. 2052 ; State v. Bradley , 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, * * * that course should be followed." Strickland at 697, 104 S.Ct. 2052.

{¶ 15} While "[t]he right to counsel is the right to the effective assistance of counsel," "trial strategy or tactical decisions cannot form the basis for a claim of ineffective counsel." Id. at 686, 104 S.Ct. 2052, citing McMann v. Richardson , 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ; State v. Sanchez , 8th Dist. Cuyahoga No. 103078, 2016-Ohio-3167, 2016 WL 3019644, ¶ 26, citing Strickland and quoting State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, 2010 WL 2682207. "Judicial scrutiny of defense counsel's performance must be highly deferential." Sanchez at ¶ 8, citing Strickland .

{¶ 16} Frierson argues that his counsel was ineffective for (1) failing to challenge the identification evidence, (2) failing to object to the state's hearsay evidence concerning the results of two online searches establishing a connection between Frierson and the owner of the suspect's vehicle and phone number, (3) failing to request a closing argument, and (4) failing to obtain an eyewitness expert.

1. Failure to Challenge Identification

{¶ 17} "[S]ince the decision falls within matters of trial strategy, counsel is not required to file a motion to suppress evidence in every case." State v. Price , 8th Dist. Cuyahoga No. 90308, 2008-Ohio-3454, 2008 WL 2688095, ¶ 19. As a result, trial counsel is not per se ineffective when it fails to file a motion to suppress. State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Kimmelman v. Morrison , 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Counsel's failure to file a motion to suppress constitutes ineffective assistance only when the defendant can show that the motion "would have 'had a reasonable probability of success' and affected the outcome of the case."

State v. Patterson , 2017-Ohio-8318, 99 N.E.3d 970, ¶ 35, quoting Sanchez .

{¶ 18} An out-of-court identification must be suppressed if "the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances." State v. Waddy , 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992), citing Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

{¶ 19} In light of some of our prior decisions, we agree with Frierson that Detective Matos's showing of a single photograph to the two eyewitnesses, Detectives Pitts and Duller, was unduly suggestive. See State v. Price , 8th Dist. Cuyahoga No. 90308, 2008-Ohio-3454, 2008 WL 2688095, ¶ 22 ; State v. Morrison , 8th Dist. Cuyahoga No. 86967, 2006-Ohio-3352, 2006 WL 2243662, ¶ 23 ; State v. Nur , 8th Dist. Cuyahoga No. 57132, 1990 WL 84288, *4 (June 21, 1990).

{¶ 20} Nevertheless, the detectives' out-of-court identification of Frierson may still be admissible if the identification is reliable. Biggers at 199-200, 93 S.Ct. 375. When examining whether a prior identification is reliable, the trial court must consider "the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." State v. McGee , 8th Dist. Cuyahoga No. 92019, 2010-Ohio-2081, 2010 WL 1910292, ¶ 38, citing Biggers .

{¶ 21} In State v. Price , the appellant challenged his conviction arguing that his counsel was ineffective for failing to file a motion to suppress an out-of-court identification. We disagreed, finding that while the officer's showing of a single photograph to the victim was unduly suggestive, the victim's identification of the appellant was reliable because she saw him from a short distance, recognized the appellant but could not remember his name, and remained confident at trial that the appellant was the suspect. Id. at ¶ 22-24. As a result, we found that the motion to suppress would not likely have been successful and, therefore, the appellant's counsel was not ineffective. Id. at ¶ 25.

{¶ 22} In State v. Keck , 8th Dist. Cuyahoga No. 89637, 2008-Ohio-3794, 2008 WL 2931621, the appellant also argued that his counsel was ineffective for failing to file a motion to suppress the state's out-of-court identification. At trial, the state offered the testimony of a police officer who observed a vehicle traveling at a high rate of speed and attempted to pull the driver over. The officer testified that, at one point during the car chase, he pulled next to the vehicle while going 80 m.p.h. and got a "pretty fair look" at the driver. Id. at ¶ 13. The officer eventually gave up the pursuit but was able to later identify the appellant as the driver in a photo array. On appeal, we found that the officer's identification of the appellant was reliable because he had a "solid opportunity" to view the suspect even while driving 15 to 20 feet next to him at 80 m.p.h. Id. at ¶ 33. As a result, we found that the identification would likely not have been suppressed, and the appellant's counsel was not ineffective. Id. at ¶ 35.

{¶ 23} Based on our review of the evidence, we find that a number of Biggers factors support a finding that the motion to suppress would not have had a reasonable probability of success. Like Keck , the detectives testified that while brief, they had a good opportunity to observe the suspect when he turned within 15 to 20 feet of their vehicle during the early evening. Specifically, Detective Pitts testified that, even though he only saw him for two to three seconds, he "got a real good look" at the suspect. Further, "[a] strong showing of reliability can arise from the fact that a [witness] knew the perpetrator of a crime before the crime was committed." State v. Huff , 145 Ohio App.3d 555, 564, 763 N.E.2d 695 (8th Dist. 2001). Like the victim in Price , Detective Pitts testified that he was familiar with the suspect, having multiple run-ins with him over his 25-year career, but could not remember his name at the time of the crime. See also In re D.D. , 2d Dist. Montgomery No. 22740, 2009-Ohio-808, 2009 WL 440613, ¶ 15 (holding that the victim's independent identification of the suspect prior to viewing the photo array as well as the victim's confidence offset the length of time between the crime and the identification). Additionally, the detectives' testimony reveals that they had a strong degree of attention and confirmed the suspect's identification within a few hours of the crime. Last, like Price and D.D. , both detectives testified that they were confident that Frierson was the suspect.

{¶ 24} In sum, a majority of the Biggers factors show that the identification was reliable and, therefore, that a motion to suppress the out-of-court identification would not have had a reasonable probability of success. Accordingly, we find that Frierson's trial counsel was not ineffective and overrule Frierson's first assignment of error.

2. Failure to Object to Hearsay

{¶ 25} Like the decision of whether to file a motion to suppress, "[o]bjecting is a tactical decision." State v. Johnson , 7th Dist. Jefferson No. 16 JE 0002, 2016-Ohio-7937, 2016 WL 6968310, ¶ 46, citing State v. Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144. Accordingly, "the failure to make objections is not alone enough to sustain a claim of ineffective assistance of counsel." State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103.

Experienced trial counsel learn that objections to each potentially objectionable event could actually act to their party's detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel's failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.

Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 140.

{¶ 26} Here, the record shows that Frierson's trial counsel consciously chose not to object to the alleged hearsay evidence. In fact, while arguing his Crim.R. 29 motion, Frierson's counsel acknowledged that there was "an abundance of hearsay which [he] did not object to because it is a bench trial and this Honorable Court is fair and should * * * hear all of the facts." Moreover, Frierson's counsel seemed to argue that, based on the abundance of hearsay, the state could not satisfy its burden of proof, a strategy that proved successful as to two of the three counts listed in the indictment.

{¶ 27} Further, as acknowledged in Frierson's counsel's statement above, "in a bench trial, the trial judge acts as the trier-of-fact, and, unless it affirmatively appears to the contrary, a reviewing court will presume that the trial court acted impartially and considered only properly admitted evidence."

State v. Neal , 8th Dist. Cuyahoga No. 89574, 2008-Ohio-1077, 2008 WL 660549, ¶ 11, citing Columbus v. Guthmann , 175 Ohio St. 282, 194 N.E.2d 143 (1963).

{¶ 28} In light of the above discussion, we cannot say that Frierson's counsel was ineffective. Accordingly, we overrule Frierson's second assignment of error.

3. Failure to Request Closing Argument

{¶ 29} "[T]he overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense." Herring v. New York , 422 U.S. 853, 858-859, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). The right to make closing arguments as part of one's defense is "unquestionably" violated in "situations where defense counsel requests an opportunity to give closing arguments and is clearly denied the right to do so." State v. Bowersock , 7th Dist. Monroe Nos. 05 MO 19 and 05 MO 20, 2006-Ohio-7102, 2006 WL 3873440, ¶ 16. That right, however, can be waived when defense counsel fails to request and object to the omission of closing arguments. State v. McCausland , 124 Ohio St.3d 8, 2009-Ohio-5933, 918 N.E.2d 507, ¶ 15. "[S]uch waiver need not be express, intentional, or voluntary." State v. Askia , 5th Dist. Delaware No. 2012-CA-13, 2012-Ohio-4670, 2012 WL 4789730, ¶ 33, citing McCausland .

{¶ 30} In Askia , the appellant argued that the trial court erred when it prohibited her counsel from making a closing argument. The Fifth District disagreed, finding that the appellant's counsel failed to renew its request for, and object to the omission of, closing argument after the court denied the appellant's Crim.R. 29 motion for acquittal. Id. at ¶ 36. As a result, the court found that the outcome of the trial was not affected by omitting closing argument, and therefore, no plain error existed. Id.

{¶ 31} While the "better practice would have been for the trial judge to ask counsel if he wanted to make a closing argument[,]" Frierson's counsel failed to request an opportunity to make a closing argument, both before and after he orally argued his Crim.R. 29 motion and, therefore, waived the right to make a closing argument. State v. Neal, 8th Dist. Cuyahoga No. 89574, 2008-Ohio-1077, 2008 WL 660549, ¶ 16. That waiver does not constitute ineffective assistance because Frierson's counsel may have strategically chosen not to pursue a closing argument to prevent a rebuttal by the state and instead make the gist of his argument for his Crim.R. 29 motion, during which he would have the opportunity for rebuttal. See Sanchez , 8th Dist. Cuyahoga No. 103078, 2016-Ohio-3167, 2016 WL 3019644, at ¶ 8, citing Strickland (holding that trial strategy cannot be a basis for a claim of ineffective assistance of counsel); State v. Darling , 8th Dist. Cuyahoga No. 72635, 1998 WL 323576, *2 (June 18, 1998), citing State v. Burke , 73 Ohio St.3d 399, 653 N.E.2d 242 (1995) (holding that waiving closing argument can be "a tactical decision made by defense counsel to prevent the state from splitting closing argument and staging a strong rebuttal."). Accordingly, we overrule Frierson's third assignment of error.

4. Failure to Obtain Eyewitness-Identification Expert

{¶ 32} As already stated, to prevail on a claim of ineffective assistance of counsel, Frierson must show that his trial counsel's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result.

Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. The record suggests that Frierson's counsel strategically decided not to obtain an eyewitness expert, choosing instead to cross-examine and impeach the state's eyewitnesses. See Madrigal , 87 Ohio St.3d at 390, 721 N.E.2d 52 (finding that counsel's decision to impeach the state's eyewitnesses on cross-examination instead of calling an eyewitness expert did not constitute ineffective assistance of counsel). Further, while Frierson aptly identifies the ways in which eyewitness experts can pinpoint issues with eyewitness accounts and assist the triers of fact, Frierson's arguments concerning what an eyewitness expert would have testified to is purely speculative. Additionally, to show what any eyewitness expert would have testified to requires evidence outside of the record and, therefore, not an argument we can appropriately consider on direct appeal. Madrigal at 391, 721 N.E.2d 52.

{¶ 33} As a result, we find that Frierson's trial counsel was not ineffective for failing to call an eyewitness expert. Accordingly, we overrule his fourth assignment of error.

B. Manifest Weight of the Evidence

{¶ 34} In his fifth assignment of error, Frierson argues that his conviction for trafficking in violation of R.C. 2925.03(A)(2) was against the manifest weight of the evidence.

{¶ 35} Unlike sufficiency of the evidence, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence. Id., citing State v. Robinson , 162 Ohio St. 486, 124 N.E.2d 148 (1955).

{¶ 36} Analyzing a claim under the manifest weight standard requires us to

review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Miller , 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, 2014 WL 4460345, ¶ 58, citing Thompkins . We are required to give "due deference" to the factfinder's conclusions because " 'the demeanor of witnesses, the manner of their responses, and many other factors observable by [the factfinder] * * * simply are not available to an appellate court on review.' " Id. , citing Thompkins ; State v. Bailey , 8th Dist. Cuyahoga No. 97754, 2012-Ohio-3955, 2012 WL 3765033, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18, 1990 WL 35401 (Mar. 4, 1990). As a result, "[d]eterminations of witness credibility are primarily left to the trier of facts." State v. Jackson , 8th Dist. Cuyahoga No. 93079, 2010-Ohio-3500, 2010 WL 2966752, ¶ 27, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Accordingly, reversing a previous conviction and ordering a new trial under a manifest weight of the evidence claim should be saved for the "exceptional case in which the evidence weighs heavily against the conviction." State v. Bridges , 8th Dist. Cuyahoga No. 100805, 2014-Ohio-4570, 2014 WL 5306776, ¶ 67, citing Thompkins.

{¶ 37} R.C. 2925.03(A)(2) states that "[n]o person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance * * *, when the offender knows or has reasonable cause to believe that the controlled substance * * * is intended for sale or resale by the offender[.]"

{¶ 38} Frierson challenges the evidence supporting his conviction, claiming that the method by which officers identified him as the suspect was "fatally flawed" and "untrustworthy" and that the officers' testimony was not credible. Frierson's arguments are not well taken, however, because, as stated above, credibility determinations are primarily left with the trier of facts. While the phone and vehicle connections may have been tenuous to other triers of fact, the two connections made by detectives that identified Frierson as the suspect as well as the officers' testimony convinced the trial court that Frierson was guilty. We hesitate to undermine the trial court's credibility findings as nothing in the record compels us to believe that this is the exceptional case that favors a reversal on a manifest weight claim.

{¶ 39} Further, because Frierson does not argue that the trial court's findings as to the elements of his conviction under R.C. 2925.03(A)(2) were against the manifest weight of the evidence, we will not address that issue here.

{¶ 40} Accordingly, we overrule Frierson's fifth assignment of error.

C. Inconsistent Verdicts

{¶ 41} In his sixth assignment of error, Frierson argues that the trial court's verdict is inconsistent because it found him guilty of drug trafficking in violation of R.C. 2925.03(A)(2) but not guilty of drug trafficking in violation of R.C. 2925.03(A)(1) and drug possession in violation of R.C. 2925.11(A).

{¶ 42} To be convicted of trafficking under R.C. 2925.03(A)(1), a defendant must intend to sell or offer to sell a controlled substance. State v. Cabrales , 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 32. To be convicted of trafficking under R.C. 2925.03(A)(2), a defendant "must prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance * * *, when the [defendant] knows or has reasonable cause to believe that the controlled substance * * * is intended for sale or resale by the [defendant] or another person." Finally, to be convicted of possession of controlled substances under R.C. 2925.11(A), a defendant must "knowingly obtain, possess, or use a controlled substance[.]"

{¶ 43} Turning to the facts relevant to Frierson's assignment of error, the state presented testimony from three officers who testified that they searched the confidential informant prior to the buy and confirmed that he did not possess any controlled substances; that the confidential informant entered the suspect's minivan with "buy money"; and that upon returning to the officer's vehicle, the confidential informant had a rock of crack cocaine. The officers also testified that they did not search the confidential informant for the "buy money" after the exchange took place and were not able to discover if the suspect had the "buy money" because he fled. Based on that evidence, the court acquitted Frierson of trafficking in violation of R.C. 2925.03(A)(1) and drug possession in violation of R.C. 2925.11(A) and convicted him of trafficking in violation of R.C. 2925.03(A)(2).

{¶ 44} After examining the evidence as well as the elements for the charges against Frierson, the trial court's verdicts certainly raise a number of questions. See State v. Taylor , 4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781, 2016 WL 1734084, ¶ 23 (finding that the state produced sufficient evidence of the defendant's guilt for both R.C. 2925.03(A)(1) and (2) because it proved that the defendant "did more than just intend to sell, he actually knowingly sold oxycodone to the confidential informant"); State v. Martin , 8th Dist. Cuyahoga No. 92236, 2009-Ohio-5223, 2009 WL 3154497, ¶ 12-18 (finding that the state produced sufficient evidence to convict the defendant of trafficking in violation of R.C. 2925.03(A)(2) and possession in violation of R.C. 2925.11(A) based on the evidence showing that the defendant's jacket contained a rock of crack cocaine); Cabrales at ¶ 30 (holding "drug trafficking in a controlled substance under R.C. 2925.03(A)(2) and possession of the same controlled substance under R.C. 2925.11(A) are allied offenses of similar import because commission of the first offense necessarily results in commission of the second.").

{¶ 45} But "[a]n appellate court is not permitted to speculate about the reason for the inconsistency when it determines the validity of a verdict." State v. Wingfield , 2014-Ohio-2053, 11 N.E.3d 732, ¶ 31 (8th Dist.). Further, "[c]onsistency between verdicts on several counts of a criminal indictment is unnecessary[.]" State v. Eason , 2016-Ohio-5516, 69 N.E.3d 1202, ¶ 68. "[A]n inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count." State v. Lovejoy , 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), citing State v. Hicks , 43 Ohio St.3d 72, 538 N.E.2d 1030 (1989). "This is so because the several counts of an indictment are independent, and a verdict responding to a designated count will be construed in the light of the count designated, and no other." State v. Brown , 8th Dist. Cuyahoga No. 89754, 2008-Ohio-1722, 2008 WL 963059, ¶ 29. "Inconsistent verdicts often reflect a factfinder's attempt to avoid redundancy or to grant leniency" and "may work against the government as well as the defendant[.]" Id. , citing United States v. Powell , 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) ; Lovejoy at 444, 683 N.E.2d 1112. "A defendant who benefits from a compassionate acquittal on one charge cannot fairly complain that it is inconsistent with his proper conviction on another." Wingfield at ¶ 31, citing Powell . Accordingly, a defendant's conviction will stand "irrespective of its rational incompatibility with the acquittal." Eason at ¶ 68, citing State v. Woodson , 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th Dist. 1985).

{¶ 46} To counter those cases, Frierson interestingly points out that "[t]he Ohio Supreme Court has yet to consider whether the verdict handed down subsequent to a bench trial is entitled to the same deference given to a jury's inconsistent verdicts across multiple counts in a criminal trial." Coinciding with his observation, Frierson argues that inconsistent verdicts handed down by a judge should not be accorded the same deference and cites to a number of federal and out-of-state cases that have enhanced review of a judge's inconsistent verdicts.

{¶ 47} In spite of his points, however, we find Frierson's argument and nonjurisdictional cases to be unconvincing under the facts presented in this case. First, we rejected a similar argument in State v. Burke , 8th Dist. Cuyahoga No. 54047, 1988 WL 86737 (June 16, 1988), where we rejected the defendant's argument that inconsistent verdicts from a bench trial should be distinguished from those resulting from a jury trial. Id. at *2. Further, we have declined arguments to overturn Burke in a number of cases. See State v. Williams, 8th Dist. Cuyahoga No. 87218, 2006-Ohio-5325, 2006 WL 2901843, ¶ 20-21 (upholding the trial court's "inconsistent"

verdicts as to the defendant's counts for burglary and theft); State v. P i es , 1st Dist. Hamilton Nos. C-990241 and C990242, 2003-Ohio-3215, ¶31, quoting State v. Lynch , 8th Dist. Cuyahoga No. 53633, 1989 WL 30587 (Mar. 30, 1989) (holding " 'it is not necessary to fashion a higher standard for judges' than juries, thus permitting the ostensibly inconsistent verdict to stand."); Brecksville v. Malone , 8th Dist. Cuyahoga Nos. 75466 and 75651, 2000 WL 193232, *1-2 (Feb. 17, 2000). We find that the rationales underlying those cases are still appropriate and controlling today.

{¶ 48} Accordingly, we cannot say that the trial court's verdict acquitting Frierson of counts for R.C. 2925.11(A) and 2925.03(A)(1) but convicting him of a count for R.C. 2925.03(A)(2) justifies a reversal of that conviction, and we overrule Frierson's sixth assignment of error.

{¶ 49} Judgment affirmed. This case is remanded for correction of clerical errors in the journal entry of conviction and sentencing journal entry, which both indicate that there was a trial by jury, to reflect that the case was tried before the bench.

EILEEN A. GALLAGHER, A.J., and EILEEN T. GALLAGHER, J., CONCUR

      The journal entry of conviction and sentencing journal entry indicate that Frierson tried his counts before a jury. Those clerical errors are to be corrected via a nunc pro tunc entry on remand from this court.


author: FROELICH, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Benjamin R. DANON, Defendant-Appellant
    No. 2017-CA-14
    Court of Appeals of Ohio, Second District, Miami County.
    Rendered on February 2, 2018
    JANNA L. PARKER, Atty. Reg. No. 0075261, Miami County Prosecutor's Office, 201 W. Main Street, Safety Building, Troy, Ohio 45373, Attorney for Plaintiff-Appellee
    THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270, Beavercreek, Ohio 45431, Attorney for Defendant-Appellant
   FROELICH, J.

{¶ 1} Benjamin R. Danon was found guilty by the Miami County Court of Common Pleas on his no contest plea to aggravated robbery. The trial court sentenced him to six years in prison and ordered him to pay court costs of $519.33. Danon appeals from his conviction, claiming that his plea was not made knowingly, intelligently, and voluntarily, and that the trial court abused its discretion in overruling his motion to continue the sentencing hearing. For the following reasons, the trial court's judgment will be affirmed.

I. Background and Procedural History

{¶ 2} According to the prosecutor's statements at the sentencing hearing, on November 13, 2016, Danon and three others went to a residence to steal back drugs that had been stolen from him (Danon) or to take compensation for those drugs; several individuals were present in the residence. The prosecutor described Danon as the "ringleader" of the co-defendants and indicated that all witnesses reported that Danon had taken out a handgun and threatened the victims with it. Danon denied that he had a weapon, but told police he had punched someone in the face. Danon stated at sentencing that he was "trying to help somebody" when he participated in the robbery.

{¶ 3} On January 26, 2017, Danon and three co-defendants were each indicted for one count of aggravated robbery, a first-degree felony. On February 2, 2017, Danon appeared before the court by video for his arraignment. The trial court noted that Danon had retained counsel, but counsel had not yet entered an appearance. Upon inquiry, Danon indicated that he would like to speak with his attorney before being arraigned and requested a continuance. The court rescheduled the matter for Tuesday, February 14, 2017. (A written entry granting the continuance was not filed until March 24, 2017.)

{¶ 4} Defense counsel formally entered his appearance during the afternoon of February 2, 2017, and requested that Danon's bond be modified to electronic home detention due to Danon's "medical condition;" Danon remained incarcerated. (The motion did not specify Danon's medical condition, but the record reflects that Danon has Crohn's Disease.) At the same time, counsel also filed a motion for a continuance of the scheduled February 14 arraignment. Counsel indicated that he is a magistrate in municipal court on Tuesdays, creating a conflict with the February 14 arraignment date. The trial court granted the motion to continue and rescheduled the arraignment for March 6, 2017.

{¶ 5} Danon was arraigned, as scheduled, on March 6, 2017. At that time, the court scheduled a pretrial conference for March 13, 2017. Defense counsel orally requested a continuance of the pretrial conference, and the conference was rescheduled for March 20, 2017. (A written motion for a continuance of the March 13 pretrial conference and a written decision granting that motion were subsequently filed on March 23, 2017 and March 24, 2017, respectively.) The March 20, 2017 pretrial conference was held, and on March 22, 2017, the trial court filed a pretrial order that set a final pretrial conference for May 15 and trial dates of May 31, June 1, and June 2, 2017.

{¶ 6} On April 10, 2017, Danon moved for a continuance of the May 31, 2017 trial. In his supporting memorandum, counsel stated that he would be out of the office on May 31, June 1, and June 2, 2017, and would be unavailable for trial. The trial court denied the motion, reasoning that the trial had been scheduled at a pretrial conference where defense counsel was present, the motion was filed three weeks after that pretrial conference, counsel offered no explanation for why he would be out of the office on the scheduled trial dates, and the court had previously granted continuances of Danon's arraignment (twice) and a pretrial conference, all at Danon's request.

{¶ 7} On May 17, 2017, Danon pled no contest to aggravated robbery. Danon had no plea agreement with the State. The trial court found him guilty and ordered a presentence investigation. The court scheduled a sentencing hearing for July 5, 2017. On May 24, 2017, the trial court filed an amended hearing notice, which vacated the July 5, 2017 sentencing hearing date and rescheduled it for June 22, 2017.

{¶ 8} Following Danon's plea, defense counsel sought to have Danon psychologically evaluated by Dr. Mary Melton of the Ohio Intervention Center. Initially, Dr. Melton was unable to gain access to Danon at the jail, due to the jail's requirement that Dr. Melton first undergo a background check. This prompted Danon to file a "motion for permission to conduct assessment," which sought an order permitting Dr. Melton to have access to Danon; the court denied the motion, stating that it would not second-guess the jail's security requirements. Dr. Melton subsequently underwent a background check and was able to meet with Danon.

{¶ 9} On June 9, 2017, defense counsel filed a motion for continuance of the sentencing hearing and for an order granting Dr. Melton a professional visit with Danon. Counsel indicated that Dr. Melton had met with Danon at the jail, but she was unable to complete her forensic evaluation due to the inability to have Danon complete certain tests. The trial court denied the motion for a continuance on June 16, 2017. The court's entry stated that, "[t]o expedite a resolution, the court contacted the jail and learned that the jail had already arranged with Dr. Melton to make the defendant available to complete the evaluation. It is anticipated that counsel will have the evaluation in time for the sentencing hearing."

{¶ 10} On June 21, 2017, Danon filed a sentencing memorandum, which consisted of a six-page memorandum from counsel and approximately 150 pages of exhibits. In his memorandum, counsel argued that Danon did not cause physical harm to anyone during the offense and did not possess a weapon, although he led the victims to believe he had a weapon. Counsel also emphasized that Danon does not have a violent past, that he cooperated with the police regarding this offense, and that he has significant physical and mental health issues, including a need for imminent surgery. Counsel requested a minimum sentence of 17 months in prison and that Danon's sentence not be more than his co-defendants' sentences.

{¶ 11} The exhibits attached to the sentencing memorandum included: (1) a voice evaluation that allegedly supported Danon's assertion that he did not have a weapon during the offense; (2) Dr. Melton's report; (3) 32 pages of records from Samaritan Behavioral Health; (4) numerous pages of medical records related to Danon's Crohn's disease ; (5) copies of filings by defense counsel; (6) three reports of medical studies concerning inflammatory bowel disease and mental health issues, particularly depression; (7) letters in support of Danon by family and friends; and (8) copies of some family photographs.

{¶ 12} At the June 22 sentencing hearing, defense counsel told the court that he had filed a sentencing memorandum that incorporated all of his arguments. The court responded that it had not received it, although it had been filed with the clerk. The parties and the court discussed whether they were available for sentencing later that day. When defense counsel indicated that he had obligations in other courts that day and all that afternoon in Xenia, the court ordered a recess and indicated that "[w]e will reconvene as soon as I finish reviewing all of this [the sentencing memorandum]."

{¶ 13} Upon reconvening, the trial court stated that it had "an opportunity over the last hour to review [the sentencing memorandum] and I'm ready to proceed." Danon and his attorney spoke on Danon's behalf. Danon expressed regret for what he did and that he "didn't mean for anybody to get hurt in this whole situation."

{¶ 14} The prosecutor spoke in favor of a harsh sentence. She described the circumstances of the offense, as related by witnesses, and Danon's leadership in planning the offense. The prosecutor further told the trial court that Danon had threatened his co-defendants to induce them not to cooperate with law enforcement regarding this case. The prosecutor refuted that Danon had accepted responsibility for his actions and/or cooperated with the police. In addition, the prosecutor indicated that she had "forty pages of write-ups of the defendant and his behavior in the jail."

{¶ 15} The trial court sentenced Danon to six years in prison.

{¶ 16} Danon appeals from his conviction, raising two assignments of error. We will address them in reverse order.

II. Danon's Plea to Aggravated Robbery

{¶ 17} Danon's second assignment of error states:

The trial court erred in accepting Appellant's no contest plea because Appellant's plea was not entered voluntarily.

{¶ 18} Crim.R. 11(C)(2) requires the court to address the defendant personally and (a) determine that the defendant is making the plea voluntarily, with an understanding of the nature of the charges and the maximum penalty, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions; (b) inform the defendant of and determine that the defendant understands the effect of the plea and that the court, upon acceptance of the plea, may proceed with judgment and sentencing; and (c) inform the defendant and determine that he or she understands that, by entering the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses, and to require the State to prove guilt beyond a reasonable doubt at a trial at which he or she cannot be compelled to testify against himself or herself. State v. Brown , 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, 2007 WL 4358473, ¶ 3.

{¶ 19} The Supreme Court of Ohio has urged trial courts to literally comply with Crim.R. 11. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need only substantially comply with those requirements. E.g., State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). "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. In contrast, the trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at ¶ 31.

{¶ 20} Furthermore, when non-constitutional rights are at issue, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made generally must show a prejudicial effect. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea would otherwise not have been entered. Id. at ¶ 15.

{¶ 21} Danon argues that his no contest plea to aggravated robbery was not voluntary, because he felt pressured to enter a plea that day. Danon emphasizes that the trial court had denied a continuance of the trial date, and he references statements that he made at the plea hearing to support his claim that he did not voluntarily enter his plea. Danon does not claim that the trial court failed to comply with Crim.R. 11.

{¶ 22} The plea hearing was held on May 17, 2017, prior to the scheduled trial date of May 31, 2017. There is nothing in the record to indicate that Danon elected to enter a plea because his counsel's request for a continuance of the trial date was denied.

{¶ 23} During the plea hearing, the trial court asked Danon several questions related to whether Danon was satisfied with his attorney and was comfortable with entering a plea. Toward the beginning of the plea hearing, the trial court asked:

THE COURT: Do you feel you've had enough time to talk to your attorney about going ahead with this no contest plea today?
MR. DANON: I do.
THE COURT: Has your lawyer talked to you about this case and has he answered all your questions?
MR. DANON: Yes.
THE COURT: Has your lawyer gone over this Aggravated Robbery charge with you and discussed that with you?
MR. DANON: Yes, Your Honor.
THE COURT: Are you satisfied with the advice your attorney has given you?
MR. DANON: Yes.
THE COURT: Do you feel your attorney has done a competent job on your behalf?
MR. DANON: Yes.

And toward the end of the hearing-after the court had reviewed the effect of Danon's plea, Danon's constitutional rights, the possible sentences, post-release control, and Danon's appeal rights, and after Danon had affirmed that he had signed the plea form-the trial court and Danon had the following exchange:

THE COURT: Okay. And again, do you feel you've had enough time to think about the very important decision that you're making this afternoon?
MR. DANON: I feel like I could use more time, but I've had-I've had a lot of time to think about it.
THE COURT: Well, I will tell you if you want more time to think about it, I'll give it to you.
(DEFENDANT AND COUNSEL HAVE PRIVATE CONVERSATION)
MR. DANON: I think I'd like to proceed.
THE COURT: You sure?
MR. DANON: Yes, Your Honor.
THE COURT: Okay. And with that, Mr. Danon, I will ask you if you wish to enter a plea of no contest to Count 1 in the indictment, which charges you with Aggravated Robbery, a felony of the first degree, do you wish to plead no contest to this offense?
MR. DANON: Yes, Your Honor.
THE COURT: Are you pleading no contest to this offense voluntarily and of your own free will?
MR. DANON: Yes, Your Honor.

{¶ 24} Danon argues that his statements to the court at the plea hearing reflect that he "was not very confident with his decision" to enter a plea. However, Danon indicated that he had had a lot of time to consider what he wanted to do, and after speaking with his attorney, he expressed that he had decided to proceed with the plea. The trial court did not pressure Danon to enter a plea. To the contrary, it expressed that Danon could have more time to consider his options. Danon stated that he was entering his plea voluntarily, and we find nothing in the record to refute this. Moreover, upon review of the entire plea hearing, the trial court complied with the requirements of Crim.R. 11.

{¶ 25} Danon's second assignment of error is overruled.

III. Denial of Motion for Continuance

{¶ 26} Danon's first assignment of error states:

The trial court abused its discretion when it overruled Appellant's motion to continue the sentencing hearing.

{¶ 27} In his first assignment of error, Danon argues that the trial court should have granted his request to continue the sentencing hearing. He argues that "there was not enough time to adequately prepare for the sentencing hearing, and that the proceedings were rushed in order to transfer him out of the county prior to his scheduled surgery."

{¶ 28} The trial court has broad discretion to grant or deny a motion for a continuance. State v. Bones , 2d Dist. Montgomery No. 26017, 2015-Ohio-784, 2015 WL 968834, ¶ 61. In exercising its discretion, a trial court should consider "the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which give [sic] rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case." (Citation omitted.) State v. Bocock , 2d Dist. Montgomery No. 22481, 2008-Ohio-5641, 2008 WL 4763218, ¶ 23.

{¶ 29} Danon's plea hearing was held on May 17, 2017, and the sentencing hearing was originally scheduled for July 5, 2017. One week after the plea hearing, the trial court rescheduled the sentencing for June 22, 2017. When, on June 9, defense counsel filed his motion for a continuance of the sentencing hearing, the basis for his motion was that Dr. Melton had been unable to complete her forensic evaluation due to the inability to have Danon complete certain tests. The trial court denied the motion after learning that the jail had already arranged with Dr. Melton to make the defendant available to complete the evaluation. In other words, the basis for counsel's motion for a continuance had been resolved. The trial court thus reasonably concluded that a continuance was no longer necessary.

{¶ 30} Moreover, there is no evidence in the record that Danon was prejudiced by the denial of that motion for a continuance. Notably, Dr. Melton's report was included in the sentencing memorandum filed by counsel on June 21, 2017. And, at the sentencing hearing, defense counsel made no assertion that he did not have time to adequately prepare for the hearing. At the beginning of the sentencing hearing, counsel reminded the court that he "had asked for a continuance before and [the court] had overruled that request, so we're here ready for sentencing." Counsel did not tell the trial court that he needed additional time, and his comprehensive sentencing memorandum and his arguments to the court belie such a claim.

{¶ 31} Danon further argues that the sentencing hearing was "rushed." He claims that the reason for "rushing" the hearing was so that the State, rather than the county, would be responsible for Danon when Danon had his impending surgery. Danon appears to argue that, for this reason, the court did not continue the sentencing hearing to a later date to allow it time to consider defense counsel's sentencing memorandum.

{¶ 32} We will not speculate on the reasons for the change in the date of Danon's sentencing hearing from July 5 to June 22. And we note that, when the trial court indicated that it had not received a copy of the defense counsel's sentencing memorandum, counsel made no motion for a continuance. Regardless, the sentencing hearing transcript reveals that the trial court took a recess to review defense counsel's sentencing memorandum before imposing sentence, and defense counsel did not object to this procedure. Although the transcript does not indicate the times that the recess was taken and court resumed, the court's statements upon resuming the hearing reflect that the court took approximately one hour to review the memorandum. Having reviewed the record, including the sentencing memorandum, we cannot conclude that the trial court abused its discretion in taking a recess rather than continuing the sentencing hearing to another date.

{¶ 33} Danon's first assignment of error is overruled.

IV. Conclusion

{¶ 34} The trial court's judgment will be affirmed.

WELBAUM, P.J., and DONOVAN, J., concur.


author: Deters, Judge.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Darrell KINNEY, Defendant-Appellant.
    NO. C-160415
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 2, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Roger Kirk, Cincinnati, for Defendant-Appellant.
    OPINION.
   Deters, Judge.

{¶ 1} Defendant-appellant Darrell Kinney pleaded guilty to two counts of aggravated burglary under R.C. 2911.11(A)(1), two counts of aggravated robbery under R.C. 2911.01(A)(1), two counts of kidnapping under R.C. 2905.01(A)(2), one count of carrying a concealed weapon under R.C. 2923.12(A)(2), and one count of vandalism under R.C. 2909.05(B)(2), in connection with an armed home invasion. The aggravated-robbery, aggravated-burglary, and kidnapping offenses each carried a three-year gun specification.

{¶ 2} In this appeal, Kinney challenges the voluntariness of his guilty pleas, and the trial court's imposition of a 34-year aggregate prison sentence. Because we conclude the trial court failed to substantially comply with Crim.R. 11(C), we reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion and the law.

Factual and Procedural Posture

{¶ 3} Kinney was indicted along with two codefendants for multiple felony offenses stemming from his involvement in the armed home invasion of a prominent local attorney, Stanley Chesley, and his wife, Susan Dlott, a federal district court judge. Kinney was charged with three counts of aggravated burglary, three counts of aggravated robbery, one count of robbery, four counts of kidnapping, two counts of felonious assault, one count of having a weapon while under a disability, one count of carrying a concealed weapon, one count of receiving stolen property, one count of vandalism, and one count of escape. The aggravated-burglary, aggravated-robbery, robbery, kidnapping, and felonious-assault offenses were each accompanied by one-year and three-year gun specifications.

{¶ 4} Kinney withdrew his not guilty pleas and pleaded guilty to two counts of aggravated burglary, two counts of aggravated robbery, two counts of kidnapping and the accompanying three-year gun specifications, carrying a concealed weapon, and vandalism. In exchange for his guilty pleas, the state dismissed the remaining charges and gun specifications.

{¶ 5} Thereafter, the trial court engaged Kinney in a Crim.R. 11 dialogue on the record. After the prosecuting attorney read the facts from the indictment, Kinney indicated that he understood the charges against him, that no one had threatened him to enter the plea, and that he was pleading guilty of his own free will.

{¶ 6} The trial court told Kinney that the two aggravated-burglary, two aggravated-robbery, and two kidnapping counts were first-degree felonies and that each offense carried a potential maximum sentence of three to 11 years in prison and a maximum fine of $20,000. It further informed Kinney that he was also pleading guilty to a three-year gun specification for each of these first-degree-felony charges, that the three-year specifications each carried mandatory prison time, and that the time on the specifications was required to be served consecutively and prior to any time imposed on the underlying first-degree felonies.

{¶ 7} The trial court also informed Kinney that the carrying-a-concealed-weapon count was a fourth-degree felony that carried a maximum term of six to 18 months in prison and a $5,000 fine, and that the vandalism count was a fifth-degree felony that carried a six-to-12 month prison term and a $2,500 fine. The court then told Kinney that he would be subject to five years of postrelease control and explained the penalties for violating postrelease control. Kinney answered in the affirmative when the trial court asked if he understood the charges against him and the possible penalties. The court further explained that " 'probation' was not a possibility in the case."

{¶ 8} Next, the trial court inquired whether Kinney had read and understood the guilty plea form. Kinney indicated he had read and understood the written guilty plea form. The trial court also questioned whether Kinney had the opportunity to discuss the pleas with his counsel. Kinney answered affirmatively. Then the court asked Kinney if he was currently on parole. When Kinney responded affirmatively, the trial court informed Kinney that by pleading guilty, he could violate his parole, and that any prison time imposed on the parole violation could be additional to the sentence imposed in the current case.

{¶ 9} The trial court next explained to Kinney the constitutional rights he would be waiving by pleading guilty, and Kinney acknowledged that he understood these rights. The trial court asked Kinney if he had ingested any drugs or medication in the last 24 hours, and Kinney stated he was on prescription medication that helped him to think clearer. The trial court asked defense counsel if Kinney was entering the pleas knowingly, voluntarily and intelligently. Counsel replied affirmatively. The trial court then accepted Kinney's guilty pleas as voluntary.

{¶ 10} Later that day, Kinney was brought back before the trial court. The trial court advised Kinney that the written guilty plea form was wrong with respect to the first-degree felonies. The plea form had incorrectly stated that none of the time for the first-degree felonies was "mandatory" prison time. The court explained that a mandatory prison term had to be imposed for the underlying counts associated with the gun specifications to which he had pleaded guilty. The following exchange then took place on the record:

Kinney: See I didn't even know that, ma'am.
Defense counsel: Yeah, well, it goes along with exactly what we talked about. Nothing will change as far as sentencing. Nothing will change as far as what you plead to-
The Court: Exactly.
Defense counsel:-because we knew you weren't going to get community control. But we just had to-
Kinney: I thought the only mandatory time was the gun specs.
The Court: The gun specs. Well, the gun specs have to be run consecutive to something, so I have to impose a sentence on the underlying counts.

{¶ 11} Defense counsel advised Kinney that nothing would change as far as his sentencing, because Kinney knew he was not going to get community control.

Defense counsel: Remember how we talked about how the minimum sentence in the best possible way could be six years? The three years on the gun spec. So that's all we're talking about is to clarify that.
Kinney: So it's mandatory time on my original charges running consecutive with the gun spec time?
Defense counsel: Yes.
Kinney: So that's more time isn't it?
Defense counsel: No.
The Court: No. The number that you discussed with your lawyer it still comes out the same. We just failed to write it on the form. There is no additional time we are informing you about right now.
Defense counsel: You heard it from the judge. So it doesn't affect the time we are talking about. Is that correct, Your Honor?
The Court: That's correct.

{¶ 12} The court, the prosecuting attorney, defense counsel, and Kinney then engaged in a lengthy discussion about whether the sentences on the underlying charges could be run concurrently or consecutively to each other and to the gun specifications. The court explained that it could impose any time on the six underlying first-degree-felony offenses concurrently, so Kinney would just get one three-year sentence.

But the court explained that each of the six underlying charges had a three-year gun specification. So the 18 years on the gun specifications would have to be served consecutive to the three-year minimum sentence on the underlying offense, if the court would impose that sentence.

Kinney: It does make it clear, but I was under, you know a whole other thought process. I thought after 18 I could file for this and come home.
The Court: You're right. You could file. But there is-well-
Kinney: But the other mandatory time. I'll have to wait longer.
Defense counsel: Well, I think we're all talking about the same thing. It doesn't change at all what we talked about for a possible sentence at all. That's the most important thing. We just had to clarify on the record what it meant.
Kinney: I didn't sign for that, though.
Defense counsel: Yeah, you did, actually.
Kinney: I thought the only mandatory time I was facing was my gun specs. I didn't know-you know, that's the only thing I have been basing my whole thing about.
Defense counsel: * * * Everything we talked about is still the same.
Kinney: I'm kind of special. I'm sorry.
Defense counsel: Everything we talked about is still the same. You have to do your gun specs. That's still the same. But the Judge had just told you she could run them concurrently, the underlying charges, not the gun specs. And that will give you three years.
Assistant prosecuting attorney: Yeah. It doesn't have any impact on judicial release.
Defense counsel: It doesn't have any impact on anything we talked about this morning. We just had to clarify and put it on the record.
Kinney: I didn't sign for that.
Defense counsel: Yeah, you did. We're just talking about the same thing. We're just putting on the record that you have to do at least three years on the underlying charge. But when we talked about our possible sentences, we included that.
The Court: When you left here this morning, what did you think was the minimum time you could get on all this?
Kinney: I knew that the mandatory time was 18. And * * * my old attorney, he had said six years would be the minimum. But then I had talked to the prosecutor and he said something totally different.
Assistant prosecuting attorney: Well, 18 is correct.
The Court: They're right. The minimum of 18-and that has not changed by this conversation that we just had. The minimum is 18. Okay?
Kinney: Yes ma'am.
The Court: And then you can file for whatever you want for-if I give you more than that. You have to serve those 18 because that's the gun specifications.
Kinney: Right.
The Court: Whether I run the underlying charges concurrently or consecutively, we'll decide that at sentencing. But that 18 has not changed as far as once you serve that 18 mandatory, you can file for judicial release, post you know, whatever it is that they offer at that point. You know, they call them oatmeal cookie days, your good time days, and stuff like that. You got to serve the 18 for the gun specifications and then kind of the gate opens in the sense of you can file for things, you can earn credit, all of that after the 18 is served. So that has not changed at all.
The Court: So you're still good with all of this?
Kinney: Not for real. Like, I was under a whole 'nother impression for real, but like, I mean, I understand everything that is being said right now. But I didn't originally sign knowing that I had mandatory time on my other charges. I thought personally that after 18-after 18 I would be able to come-you know, and you just said that I would still be able to, but I didn't know about the whole-the three years here, three years there, and-
Defense counsel: Do you understand it now?
Kinney: I definitely understand it. But I'm not okay with it. I didn't understand. I didn't sign for that.
Defense counsel: Well you can withdraw your plea and go to trial.
Kinney: I don't want to go to trial.
Defense counsel: Well, then there you go. If you don't want to go to trial, this is the plea. It's exactly like we explained it to you. We just had to clarify it on the record. So you want to stay with it.
Kinney: I still feel like I signed something without knowing everything that was-what was going on.
Defense counsel: But now it has been explained to you. Do you want-.
Kinney: It's already happened. You know, I already done signed it.
Defense counsel: Do you want to go ahead with this? You've already signed it and we have already explained it to you now twice. Do you want to go ahead with it?
Kinney: No.
The Court: You want to tear up the plea and go to trial?
Kinney: I don't want to go to trial but I don't-
Defense counsel: That is what is going to happen if you don't-
The Court: Those are your only options. The deal isn't going to get any better. The State is offering this, exactly what you plead to this morning. Nothing has changed. So it's either stick with this or go to trial. Those are your only options.
Kinney: It was pointless bringing me down here.
Defense counsel: No, it wasn't because we-
Kinney: I understand that you all got to bring it to my knowledge, but-it's not going to change nothing.
Defense counsel: Right.
Kinney: It's too late. I already signed it.
Defense counsel: It's not changing anything. So you want-we're going to go ahead with it. Okay? All right. I think we're going to go ahead with it, Your Honor. Thank you.
The Court: Very good, thank you.
Defense Counsel: All right. I'll see you later. We'll get ready then for sentencing. (Emphasis added.)

{¶ 13} The record reflects that the guilty plea form was changed. Under the heading for mandatory prison term, the number zero was whited out for each of the first-degree felonies and the number three was written in. Defense counsel placed his initials next to the changes on the plea form. Kinney, however, did not re-sign the plea form following these changes. Thus, the amended guilty plea form stated that each first-degree felony carried a prison term of three to 11 years, but that only three years of that prison term was mandatory time. The plea form further provided that Kinney would be ineligible for judicial release for any mandatory term the trial court imposed. According to the plea form, Kinney was subject to a mandatory three-year prison term for each of the six first-degree felonies and a three-year mandatory prison term for each of the accompanying firearm specifications, for a total of 36 years of mandatory prison time.

{¶ 14} Prior to sentencing, the state filed a sentencing memorandum. The state asserted that Kinney had a prior conviction for burglary, a second-degree felony, and thus, pursuant to R.C. 2929.13(F)(6) he was subject to a mandatory prison term for all six of the first-degree felonies.

{¶ 15} The trial court sentenced Kinney to nine years in prison for each aggravated-burglary count, to be served consecutively to the accompanying three-year gun specification, to nine years in prison for each aggravated-robbery count to be served consecutively to the accompanying three-year gun specification, to nine years for each kidnapping count to be served consecutively to the accompanying gun specification, to 18 months for carrying a concealed weapon, and to 12 months for vandalism.

{¶ 16} The trial court ordered the nine-year sentences for counts one, the aggravated burglary, count four, the aggravated robbery, and count eight, the kidnapping which involved Chesley, and the 12-month sentence on vandalism to be served consecutively to each other and consecutively to the three-year gun specifications accompanying counts one and eight. The sentences on the remaining counts, including the gun specifications, were run concurrently with each other and with the sentences on counts, one, four, eight, and 18. The total aggregate sentence was 34 years, 33 years of which was mandatory prison time.

Kinney's Guilty Pleas

{¶ 17} In his first assignment of error, Kinney argues that his guilty pleas were involuntarily made because the trial court failed to comply with Crim.R. 11.

{¶ 18} When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Before accepting a guilty plea in a felony case, a trial court must inform the defendant that he is waiving certain constitutional rights, including the privilege against compulsory self-incrimination, the right to a jury trial, the right to confront his accusers, and the right of compulsory process of witnesses. See State v. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 12. In addition to these constitutional rights, the trial court is also required to determine that the defendant understands the nature of the charge, the maximum penalty involved, and the effect of the plea. Crim.R. 11(C)(2)(a-b) ; Jones at ¶ 12.

{¶ 19} While the trial court must strictly comply with Crim.R. 11 when notifying a defendant of the constitutional rights set forth in the rule, it need only substantially comply when informing the defendant of the nonconstitutional ones. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14 and 18. "Substantial compliance means that under the totality of the circumstances the defendant understands the implications of his plea and the rights he is waiving." State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). A trial court's "failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice." State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. The test for prejudice is whether the plea would have otherwise been made. Id.

{¶ 20} Kinney argues that his guilty pleas were not voluntarily, intelligently, or knowingly made, because he expressed repeated confusion about the potential maximum sentence and whether the underlying charges carried mandatory sentences as opposed to the mandatory nature of the gun specifications.

{¶ 21} A prison term is presumed for a first- or second-degree felony. R.C. 2929.13(D)(1). A trial court can impose community control if it makes certain findings. R.C. 2929.13(D)(2). A trial court can only impose community control if the offender is not required to serve a mandatory prison term. A mandatory prison term also affects a defendant's ability to seek judicial release. R.C. 2929.20(A)(1)(a), (B), and (C). A defendant serving a mandatory prison term is ineligible for judicial release. See State v. Ware , 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11.

{¶ 22} This court has held that the trial court is under no obligation to inform a defendant regarding his eligibility for judicial release. See State v. Simmons , 1st Dist. Hamilton No. C-050817, 2006-Ohio-5760, 2006 WL 3111415, ¶ 13. However, if a defendant who pleads guilty is misled as to whether he would be eligible for judicial release or when he becomes eligible to apply for judicial release, other courts have held that the defendant's guilty plea was invalid. See State v. Taylor , 113 Ohio St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37, ¶ 3, 11, and 16 ; State v. Williams, 8th Dist. Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650, 2017 WL 1742646, ¶ 21-22 ; State v. Ealom, 8th Dist. Cuyahoga No. 91455, 2009-Ohio-1365, 2009 WL 790400, ¶ 5 ; State v. Cox , 3d Dist. Union No. 14-06-47, 2007-Ohio-6023, 2007 WL 3342761, ¶ 18 ; State v. Silvers , 181 Ohio App.3d 26, 2009-Ohio-687, 907 N.E.2d 805, ¶ 15 (2d Dist); State v. Lloyd , 6th Dist. Erie Nos. E-10-055 and E-10-056, 2011-Ohio-2964, 2011 WL 2436772, ¶ 18.

{¶ 23} R.C. 2929.13(F)(6) requires a mandatory prison term for any offense that is a first- or second-degree felony when the defendant has a prior conviction for a first- or second-degree felony. Here, Kinney was subject to a mandatory prison term for each of the six first-degree felonies because of his prior second-degree-felony conviction for burglary. When an offender is sentenced to a mandatory prison sentence, it carries additional ramifications, as the offender will not be eligible for community-control sanctions or judicial release or certain other reductions in sentence. State v. Cruz , 8th Dist. Cuyahoga No. 96999, 2012-Ohio-1943, 2012 WL 1564526, ¶ 10.

{¶ 24} The record reflects that Kinney's ability to file for judicial release was a factor in his decision to plead guilty. Although the trial court clarified that Kinney would be required to serve mandatory time on the underlying first-degree felonies, both the trial court and the amended plea form incorrectly stated that only three years of the three-to-11-year term was mandatory, when in fact any prison term imposed within this range would be mandatory time. Although Kinney stated that he understood the time on the underlying offenses was mandatory, he could not have fully appreciated the effect of his pleas, because the trial court, defense counsel, and the prosecuting attorney repeatedly told Kinney that the mandatory time on the underlying first-degree-felony offenses would not affect his sentence or his eligibility for judicial release. They assured Kinney that he would still be eligible to file for judicial release after serving the mandatory 18 years on the gun specifications. This advisement was legally erroneous. Any time the trial court imposed on the underlying first-degree-felony charges was also mandatory time that Kinney would have to serve without judicial release. R.C. 2929.13(F)(6) ; Ware , 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, at ¶ 11. Because the trial court failed to accurately explain the mandatory nature of the time Kinney would serve on the underlying first-degree felonies, it failed to substantially comply with Crim.R. 11.

{¶ 25} Kinney, however, must show that he suffered prejudice from the trial court's legal misadvisement. That is, he must demonstrate that he would not have pleaded guilty absent the trial court's erroneous advisement as to the sentence. We recognize that the amended plea form incorrectly stated that Kinney would be subject to 36 years of mandatory prison time: three years of mandatory time on each of six first-degree-felony counts and three years for each accompanying gun specification. The record reflects, however, that Kinney did not sign the amended plea form and that the form incorrectly stated that only three years of the three-to-11-year prison term for the underlying first-degree felonies was mandatory prison time. Moreover, the record reflects that Kinney relied on the trial court's assurances about the nature of the mandatory terms at the plea hearing.

{¶ 26} The state argues that Kinney cannot establish prejudice because, although displeased with the possible penalties he faced, he repeatedly stated that he did not want to reject his guilty pleas and proceed to trial. We disagree. Kinney's statements that he did not want to proceed to trial were made immediately after the trial court's assurances that the imposition of mandatory prison terms on the underlying offenses would not affect his sentence or his eligibility to apply for judicial release. The trial court told Kinney that nothing had changed after its additional advisement and that Kinney would still be eligible to apply for judicial release after he had served 18 years on the gun specifications. Because Kinney was ultimately sentenced to 34 years in prison, 33 years of which was mandatory time, when he was repeatedly reassured by the trial court that he would be eligible to apply for judicial release after 18 years, we hold he has demonstrated prejudice. See State v. Bryant , 4th Dist. Meigs No. 11CA19, 2012-Ohio-3189, 2012 WL 2870640, ¶ 13-17 ; see also State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 39 (holding that the defendant's plea was not knowingly, voluntarily, or intelligently made given the trial court's expanded, but inaccurate explanation of the law). We, therefore, sustain his first assignment of error.

{¶ 27} Our resolution of Kinney's first assignment of error has rendered moot his second assignment of error in which he argues that his sentence is contrary to law because the trial court failed to merge as allied offenses of similar import the two aggravated-burglary, two aggravated-robbery, and two kidnapping offenses, and because it failed to make the necessary findings before imposing consecutive sentences. See App.R. 12(A)(1)(c). We hold that the trial court erred in accepting Kinney's guilty pleas, because the court failed to substantially comply with Crim.R.11. We, therefore, reverse the trial court's judgment and remand this matter for further proceedings consistent with this opinion and the law.

Judgment reversed and cause remanded.

Mock, P.J., and Miller, J., concur.