[Cite as State v. Thompson, Jr., 2020-Ohio-211.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 28308
                                                    :
 v.                                                 :   Trial Court Case No. 2018-CR-3283
                                                    :
 ALVIN E. THOMPSON JR.                              :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                               OPINION

                           Rendered on the 24th day of January, 2020.

                                               ...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
      Attorney for Defendant-Appellant

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



TUCKER, J.
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       {¶ 1} Defendant-appellant Alvin E. Thompson, Jr. appeals his conviction and

sentence for the following offenses: Count I, having weapons while under disability in

violation of R.C. 2923.13(A)(2), a felony of the third degree; Count II, having weapons

while under disability in violation of R.C. 2923.13(A)(3), also a felony of the third degree;

Count III, failure to comply with the order or signal of a police officer in violation of R.C.

2921.331(B) and (C)(5), a felony of the third degree; Count IV, endangering children in

violation of R.C. 2919.22(A), a felony of the third degree; Count V, carrying concealed

weapons in violation of R.C. 2923.12(A)(2), a felony of the fourth degree; and Count VI,

improper handling of a firearm in a motor vehicle in violation of R.C. 2923.16(B), a felony

of the fourth degree.

       {¶ 2} Thompson pleaded guilty to all of the counts in the indictment and waived a

presentence investigation report (PSI).     In exchange for his guilty pleas, the parties

agreed that Thompson would be sentenced to an aggregate prison term of seven and

one-half years and would receive jail time credit of 159 days.

       {¶ 3} After Thompson entered his pleas, the trial court proceeded directly to

sentencing. Following the merger of Counts I and II, the trial court imposed the following

sentences: 24 months on Count I, having weapons under disability; 24 months on Count

III, failure to comply with the order or signal of a police officer; 24 months on Count IV,

endangering children; 18 months on Count V, carrying concealed weapons; and 18

months on Count VI, improper handling of a firearm in a motor vehicle. The trial court

then ordered that Counts I, III, and IV be served consecutively to one another, and Counts

V and VI be served concurrently to each other but consecutively to Counts I, III, and IV,

for an aggregate sentence of the agreed-upon seven and one-half years in prison. The
                                                                                         -3-


failure to comply count (Count III) required a driver’s license suspension of three years to

life. The trial court imposed a 20-year license suspension. This appeal followed.



                                 Assignments of Error

       {¶ 4} Thompson’s two assignments of error are as follows:

              THOMPSON’S        PLEAS     WERE      NOT     MADE     KNOWINGLY,

       INTELLIGENTLY, AND VOLUNTARILY.

              THE TRIAL COURT FAILED TO MAKE FINDINGS TO SUPPORT

       THE IMPOSITION OF CONSECUTIVE SENTENCES.



                  Crim.R. 11(C)(2)(a) Maximum Penalty Advisement

       {¶ 5} Due process mandates that a guilty plea be knowing, intelligent, and

voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Compliance

with Crim.R. 11(C) ensures that a plea meets this constitutional mandate. State v. Cole,

2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12.           Strict compliance with the

Crim.R. 11(C)(2)(c) constitutional advisements is necessary to establish that a plea is

consistent with due process. State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124

N.E.3d 766, ¶ 11, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

261, ¶ 18.    But substantial compliance with the Crim.R. 11(C)(2)(a) and (b) non-

constitutional plea requirement is sufficient to meet the due process requirement.

Substantial compliance exists when the “totality of circumstances” permit the conclusion

that the defendant “subjectively understands” the non-constitutional plea requirements.
                                                                                           -4-


Clark at ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If,

however, the trial court’s compliance with the Crim.R. 11(C) non-constitutional

requirements is only partial, an appellate court must undertake a prejudice analysis, with

prejudice, in this context, being gauged by whether the defendant would otherwise have

entered the plea. Bishop at ¶ 19, quoting Clark at ¶ 32, quoting State v. Sarkozy, 117

Ohio St.3d 86, 2008-Ohio-509, 88 N.E.2d 1224, ¶ 22. If prejudice is not found, the plea

will not be vacated. Id. Finally, if the trial court’s Crim.R. 11(C)(2)(a) or (b) failure is

complete, prejudice is presumed and the plea must be vacated. Id.

       {¶ 6} A mandatory license suspension is part of a defendant’s maximum penalty.

Thus, Crim.R. 11(C)(2)(a) requires that a defendant be advised regarding the potential

maximum duration of a mandatory license suspension.               State v. Walz, 2d Dist.

Montgomery No. 23783, 2012-Ohio-4627; State v. Greene, 2d Dist. Greene No. 2005-

CA-26, 2006-Ohio-480; State v. Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-

255.

       {¶ 7} In Thompson’s case, the following exchange occurred at the plea hearing

when the trial court realized it had failed to discuss the mandatory license suspension:

       THE COURT: Okay. There’s one thing I need to - - I did not go over with

       you, and I apologize. On Count - - hold on a second. On Count III, failure

       to comply with the order or signal of a police officer - - by pleading guilty to

       that one, your driver’s license can be suspended for between three years

       and life. Do you understand that?

       THE DEFENDANT: Yes.

       THE COURT: Okay. Does that change your plea as to Count III, failure to
                                                                                      -5-


      comply with the order or signal of a police officer?

      THE DEFENDANT: No.

The plea form Thompson signed did not remedy the trial court’s imprecise statement

suggesting a discretionary license suspension. In fact, the plea form seemed to indicate

that Thompson’s driver’s license could be permanently suspended based upon a

community control sanctions violation, which, even if community control sanctions were

involved, was incorrect.

      {¶ 8} Based upon the trial court’s suggestion the license suspension was

discretionary and the plea form’s failure to cure the trial court’s misstatement, we

conclude there was not substantial compliance with the Crim.R. 11(C)(2)(a) maximum

penalty advisement.        The totality of the circumstances simply does not allow the

conclusion that Thompson subjectively understood the license suspension was

mandatory.

      {¶ 9} Going to the next step, we conclude there was partial compliance with the

required maximum penalty advisement regarding the license suspension. The Supreme

Court, in an analogous situation, has ruled that a trial court’s failure to discuss post-

release control constitutes a complete failure to comply with the maximum penalty

advisement. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 88 N.E.2d 1224, at ¶ 22.

Discussing this conclusion, the Sarkozy court stated that “the trial court did not merely

misinform Sarkozy about the length of his term of postrelease control. Nor did the court

merely misinform him as to whether postrelease control was mandatory or discretionary.”

Id. This language obviously suggests that such misstatements would constitute partial

Crim.R. 11(C)(2)(a) compliance.
                                                                                           -6-


       {¶ 10} Consistent with the Supreme Court’s suggestion, we have ruled that partial

Crim.R. 11(C)(2)(a) compliance occurs when a defendant is incorrectly informed that

post-release control is discretionary instead of mandatory. State v. Russell, 2d Dist.

Montgomery No. 27473, 2018-Ohio-2571, ¶ 29; State v. Hastings, 2d Dist. Montgomery

Nos. 27212, 27213, 2018-Ohio-422, ¶ 23; State v. Knox, 2d Dist. Montgomery 25774,

2015-Ohio-4198. Consistent with this authority, we conclude the trial court’s statement

to Thompson that “your driver’s license can be suspended for between three years and

life” constituted partial compliance with the Crim.R. 11(C)(2)(a) maximum penalty

advisement.

       {¶ 11} In reaching this conclusion, we are aware of our decision in Walz, 2d Dist.

Montgomery No. 23783, 2012-Ohio-4627; this decision is distinguishable. As here, Walz

pleaded guilty to failure to comply with an order or signal of a police officer, triggering a

mandatory license suspension of between three years and life. The plea form correctly

informed Walz of the length and mandatory nature of the suspension, But the trial court,

during the plea colloquy, did not mention a license suspension, and, in fact, affirmatively

informed Walz that the discussed penalties (prison term, fines, and post-release control)

were “all the potential penalties” he faced. Id. at ¶ 16. We ruled that the trial court’s

incorrect “all potential penalties” statement overcame the correct plea form, making

Walz’s plea less than voluntary, knowing, and intelligent. Id. at ¶ 17, citing State v. Engle,

74 Ohio St.3d 525, 660 N.E.2d 450 (1996). This conclusion eliminated the possibility of

partial compliance.

       {¶ 12} If, in the pending case, the trial court had not discussed a license

suspension during the plea colloquy or, after discussing the other potential penalties, had
                                                                                       -7-


stated “these are all the penalties you face,” there would have been a complete Crim.R.

11(C)(2)(a) failure. But this is not what occurred, distinguishing Walz from the pending

case. Thus, a prejudice analysis is required.



                                   Prejudice Analysis

       {¶ 13} The record does not support a conclusion that, had Thompson been

informed that the license suspension was mandatory, he would have decided to forego

the negotiated plea agreement.      The plea hearing transcript reflects that Thompson

entered the plea on Friday, January 25 before the scheduled Monday, January 28 jury

trial. The transcript also reflects the negotiations concerning Thompson’s sentence,

which resulted in the discussed seven and one-half year prison term. The transcript also

reveals that Thompson was on post-release control, but the trial court informed him of its

intention to terminate the post-release control, thus eliminating the possibility that the

parole board could effectively increase the prison term. Finally, as already discussed,

the trial court informed Thompson that his license could be suspended for three years to

life. Thompson, when so informed, told the trial court that the prospect of a lengthy

(perhaps lifetime) suspension did not alter his plea decision. The record supports the

conclusion that Thompson, facing an impending trial on multiple serious charges, was

primarily concerned with the length of the prison term, and that the prospect of a lengthy

license suspension was not an overriding concern. In short, the record does not support

a conclusion that Thompson would not have entered the plea if the trial court had used

the word “will” instead of “can” with regard to the license suspension.

       {¶ 14} Since the trial court partially complied with the Crim.R. 11(C)(2)(a)
                                                                                          -8-


maximum penalty advisement and the record does not support a finding of prejudice,

Thompson’s first assignment of error is overruled.



                                 Consecutive Sentences

       {¶ 15} Thompson’s second assignment of error asserts the trial court erred

because it did not make the consecutive sentence findings required by R.C.

2929.14(C)(4). This argument is incorrect.

       {¶ 16} If, as here, an agreed-upon sentence “includes non-mandatory consecutive

sentences and the trial court fails to make the consecutive sentence findings * * *, the

sentence nonetheless is ‘authorized by law,’ and therefore is not appealable pursuant to

R.C. 2953.08(D)(1).” State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d

627, ¶ 30. Also, the trial court was required to impose a consecutive sentence regarding

the failure to comply count. Since this consecutive sentence was “mandated by law, the

trial court * * * was not required to make the [R.C. 2929.14(C)(4)] findings * * *.” State v.

Tonn, 2d Dist. Greene Nos. 2004-CA-36, 2004-CA-37, 2005-Ohio-2021, ¶ 27. Thus, the

trial court did not err by failing to make the R.C. 2929.14(C)(4) consecutive sentence

findings. The second assignment of error is overruled.



                                        Conclusion

       {¶ 17} Having overruled Thompson’s assignments of error, the judgment of the

Montgomery County Common Pleas Court is affirmed.



                                       ...........
                                                                                        -9-


WELBAUM, J., concurs.

DONOVAN, J., dissents:

      {¶ 18} I dissent. Thompson was given misinformation during the plea colloquy.

He was informed that a license suspension “can” be imposed when in fact it was

mandatory; hence, he was not informed of the maximum penalty for failure to comply in

accordance with Crim.R. 11(C)(2).      Furthermore, the plea form also did not inform

Thompson of the mandatory license suspension.          In fact, there was misinformation

contained therein which erroneously tied a mandatory license suspension to a violation

of community control. I would find no compliance and vacate the plea as this court did

in Walz, 2d Dist. Montgomery No. 23783, 2012-Ohio-4627, and State v. Greene, 2d Dist.

Greene No. 2005-CA-26, 2006-Ohio-489.          As Judge Grady noted in his dissent in

Greene, “a mandatory suspension of driving privilege is a serious adverse consequence

of a guilty plea.” Greene at ¶ 23. Thompson’s 20-year license suspension is indeed

longer than his prison term.    Furthermore, “when material misinformation about the

consequence of a guilty plea is conveyed to a defendant, and the court by its silence fails

to correct the mistake, the failure renders the plea less than knowing, intelligent, and

voluntary.” Engle, 74 Ohio St.3d 525, 660 N.E.2d 450 (1996). I would reverse.



Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Robert Alan Brenner
Hon. Mary Katherine Huffman
