COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60676 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MELANIE J. HURAYT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-251558. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Jonathan Garver, Esq. 1404 East 9th Street Suite 300 Cleveland, OH 44114 -2- DAVID T. MATIA, C.J.: Defendant-appellant appeals the judgment of the Cuyahoga County Court of Common Pleas which denied appellant's motion to withdraw a post-sentence guilty plea. Appellant assigns four errors for review, three of which are well taken, therefore, the judgment of the trial court is reversed. STATEMENT OF THE FACTS On June 14, 1990, defendant-appellant Melanie J. Hurayt pled guilty to two counts of felonious sexual penetration in Case No. CR251558 (a second indictment under the herein facts). Pursuant to a plea agreement, the state amended two counts of the herein indictment to delete the force elements and the prior felony specifications of violence. The state also nolled the two counts of felonious assault and the two counts of child endangering in said Common Pleas Case No. CR-251558. The state then dismissed prior Common Pleas Case No. CR-216125 (arising out of the same facts) in exchange for the above-referred-to plea. Then on June 27, 1990, subsequent to the hereinabove plea, the trial court sentenced appellant to two consecutive terms of ten to twenty-five years each (or twenty to fifty years). On July 5, 1990, after the plea, appellant moved to withdraw her guilty plea. On September 20, 1990, the trial court held a hearing on the motion. The state was not present. Appellant argued at the hearing that she was prejudiced by counsel's advice to make a guilty plea because her counsel did not inform her that she could be sentenced to two consecutive ten to twenty-five year terms. -3- At such proceedings, appellant's counsel also testified that he thought appellant would be sentenced to serve concurrent time. Finally, on September 20, 1990, the trial court overruled appellant's motion to withdraw her guilty plea. STATEMENT OF THE CASE Initially, on March 18, 1987, in Case No. CR-216125, the Cuyahoga County Grand Jury indicted appellant on two counts of child endangering in violation of R.C. 2919.22, and two counts of felonious sexual penetration, a violation of R.C. 2907.12. All counts included a prior felony specification of violence and involved acts committed upon a three and five year old boy. In case CR-216125, a trial by jury commenced on August 17, 1987. The jury convicted appellant on all counts, which resulted in two concurrent life sentences. Appellant appealed the verdict and our court reversed the conviction in part and remanded the case back to the trial court. Subsequently, the state perfected an appeal to the Ohio Supreme Court, which accepted the state's motion in support of jurisdiction. The Ohio Supreme Court, without reviewing case CR-216125 on its merits, reversed both the trial court and the appeals court with instructions to follow the holding in State v. Boston (1989), 46 Ohio St. 3d 108 (dealing with hearsay and evidentiary problems in child abuse cases). See State v. Hurayt (1990), 49 Ohio St. 3d 16. On April 17, 1990 the Cuyahoga County Grand Jury in new case CR-251558 (based upon the same facts as in case CR-21615) re- -4- indicted appellant on two counts of felonious sexual penetration (R.C. 2907.12); two counts of child endangering (R.C. 2919.22) and two counts of felonious assault (R.C. 2903.11). All counts included a prior felony specification of violence. On June 14, 1990 appellant pled guilty to two counts of felonious sexual penetration in Case No. CR-251558. In exchange for that plea, the state amended the felonious sexual penetration counts to delete the force element and the prior felony violence specification. As noted above the state then nolled the two counts of child endangering, the two counts of felonious assault and dismissed the original Case No. CR-216125. On June 27, 1990 the court sentenced appellant to two consecutive terms of ten to twenty-five years (effectively twenty to fifty years). Appellant timely appeals the court's conviction and sentence. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA BECAUSE IT FAILED TO INFORM APPELLANT OF THE POSSIBILITY OF CONSECUTIVE SENTENCING AND BECAUSE IT FAILED TO INFORM APPELLANT THAT THE OFFENSE OF FELONIOUS SEXUAL PENETRATION IS NONPROBATIONAL. CRIM. RULE 11(C)(2)(A); FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Appellant argues in her first assignment of error that the trial court erred in denying appellant's motion to withdraw her guilty plea. Specifically, appellant argues that the trial court did not comply with Crim. Rule 11(C)(2)(a). This assignment of error is well taken. -5- ISSUE: WHETHER THE COURT SUBSTANTIALLY COMPLIED WITH CRIM. R. 11(C)(2)(A) Crim. R. 11(C)(2) sets out the procedures a trial court must follow before accepting a guilty plea. When a trial court or appellate court is reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim. R. 11 have been followed. Crim. R. 11 provides in pertinent part: (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. (Emphasis added.) Furthermore, in reviewing the record on appeal, the appellate court should inquire as to whether the defendant knowingly and voluntarily waived his constitutional rights. As the United States Supreme Court stated in Boykin v. Alabama (1969), 395 U.S. -6- 238, 243, the defendant's rights include: (1) the Fifth Amendment privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one's accusers. Accord State v. Nero (1990), 56 Ohio St. 3d 107. A court may set aside a judgment of conviction and permit a defendant to withdraw a guilty plea after imposition of sentence only to correct a manifest injustice. Crim. R. 31.1; State v. Smith (1977), 49 Ohio St. 2d 261; State v. Peterseim (1980), 68 Ohio App. 2d 211; State v. Blatnik (1984), 17 Ohio App. 3d 201. In addition, a trial court possesses broad discretion when determining a motion to withdraw a plea of guilty. Smith, supra, and an appellate court's review of a trial court's denial of a post sentence motion to withdraw a guilty plea is limited to a determination of whether the trial court abused its discretion. Peterseim, supra, at 214. In the case sub judice, appellant argues that she entered a guilty plea without a full and complete understanding of the risks involved, to wit: appellant contends that the trial court did not explain the possibility of consecutive sentencing and that the offenses involved were non-probationable. One might think that she was sandbagged. Appellant's argument is persuasive. While the record in the within case indicates that the trial judge informed appellant of her constitutional rights being waived by pleading guilty, it is noted that the trial judge made no mention, as Crim. R. 11(C)(2)(a) requires, that appellant was -7- ineligible for probation. Though, the State Supreme Court in State v. Nero (1990), 56 Ohio St. 3d 106 has determined that the fact that the trial judge omitted to address the probation issue does not require vacation of the guilty plea, the reviewing court must determine that there was substantial compliance. Nero at 108. 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. State v. Stewart (1977), 51 Ohio St. 2d 86. State v. Carter (1979), 60 Ohio St. 2d 34, 38, *** certiorari denied (1980), 445 U.S. 953. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, *** Crim. R. 52(A). The test is whether the plea would have otherwise been made. Id. State v. Nero, supra. * * * We hold, therefore, that where the totality of the circumstances indicate that the defendant knew he was ineligible for probation and was not prejudiced by the trial court's failure to comply with Crim. R. 11(C)(2)(a), the trial court's acceptance of the defendant's guilty plea to the nonprobationable crime of rape without personally advising the defendant that he was not eligible for probation constitutes substantial compliance with Crim. R. 11. State v. Nero, supra. Applying the Nero rule to the facts in this case, we find that there was not substantial compliance with Crim. R. 11(C)(2)(a). We distinguish Nero, supra, because the totality of the within record does not indicate that appellant Hurayt was aware that her -8- offense was non-probationable. Thus, appellant Hurayt was prejudiced by the trial court's failure to comply with Crim. R. 11(C)(2)(a). We find, therefore, that reviewing the record under a totality of circumstances analysis, appellant Hurayt was prejudiced by the trial court's failure to literally advise her of her ineligibility for probation. We hold, therefore, that the trial court did not substantially comply with Crim. R. 11(C)(2)(a). Accordingly, Assignment of Error I is sustained. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA BECAUSE HER ATTORNEY'S ADVICE CONCERNING SENTENCING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION. Appellant argues in her second assignment of error that the trial court erred in denying appellant's motion to withdraw guilty plea. Specifically, appellant argues that her plea was entered pursuant to counsel's advice which constituted ineffective assistance of counsel in regards to the court's sentencing. This assignment of error is well taken. ISSUE: WHETHER DEFENSE COUNSEL'S ADVICE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL Appellant argues that her defense counsel did not properly advise her of the possible penalties involved with her guilty plea nor of the possibility of consecutive sentencing. Appellant -9- contends that counsel's omission amounts to ineffective assistance of counsel. We are so convinced. Our court in State v. Lambros (1988), 44 Ohio App. 3d 102 found that the erroneous advice given by counsel must play a substantial part of the inducement to make a guilty plea which resulted in manifest injustice and therefore reversible error. There is also authority which suggests that under certain circumstances, erroneous advice of counsel regarding the sentence which is to be imposed may result in manifest injustice. In [United States v. Becklean (C.A. 8, 1979), 598 F. 2d 1122], the Eighth Circuit stated that if a guilty plea is entered solely because of erroneous advice, [or] if the erroneous advice plays a substantial part of inducement for the guilty plea, manifest injustice may result. Becklean, supra, at 1125. Also, it has been held that if a guilty plea is entered pursuant to counsel's representation, as opposed to counsel's likely prediction, that such a plea would result in a lesser sentence than the sentence actually received, it is necessary to permit post-sentence withdrawal of the guilty plea in order to prevent manifest injustice. *** Lambros, supra, at 103. In the within case, reviewing the facts and the record, we find that appellant Hurayt entered her guilty plea based primarily on counsel's erroneous advice. We further find that defense counsel's testimony indicates that his erroneous advice played a substantial part of the inducement for appellant Hurayt to enter the guilty plea. Defense counsel testified that he told Miss Hurayt: I discussed this with Miss Hurayt and gave her the information that the sentences on a -10- plea agreement *** would be significantly less *** and that in my experience with these type of cases *** that by pleading guilty to a case like this, rather than going to trial, she would expose herself to concurrent time rather than consecutive time ***. (Tr., p. 8.) Thus, we hold that since Hurayt's guilty plea was entered pursuant to counsel's representation that such a plea would result in a lesser sentence than the sentence actually received, it is necessary to now permit appellant's post-sentence withdrawal of her guilty plea in order to prevent manifest injustice. Accord Lambros, supra. Accordingly, Assignment of Error II is sustained. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA BECAUSE OF ITS FAILURE TO AFFORD APPELLANT THE RIGHT OF ALLOCUTION BEFORE IMPOSING SENTENCE. CRIM. R. 32(A)(1) SECTION 2947.05, OHIO REV. CODE. Appellant argues in her third assignment of error that the trial court erred by not affording appellant the opportunity to make a statement or present any information in mitigation of punishment. This assignment of error is well taken. ISSUE: WHETHER TRIAL COURT SUBSTANTIALLY COMPLIED WITH THE PROVISIONS OF R.C. 2947.05 AND CRIM. R. 32(A)(1) Appellant Hurayt argues that the trial court erred by not giving her the opportunity to be heard at the hearing. Crim. R. 32(A)(1) and R.C. 2947.05 are the applicable provisions in regard to the sentencing of defendants. -11- Crim. R. 32(A)(1) provides: "(A) Sentence. "(1) Imposition of sentence. Sentence shall be imposed without unnecessary delay. Pending sentence the court may [*3] commit the defendant or continue or alter the bail. Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant, and shall also address the defendant personally and ask him if he wishes to make a statement in his own behalf or present any information in mitigation of punishment.["] R.C. 2947.05 provides: "Before sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he has anything to say as to why judgment should not be pronounced against him." It is mandatory for a judge to give the defendant an opportunity to speak before pronouncing the sentence. Silsby v. State (1928), 119 Ohio St. 314. However, substantial compliance by the judge with R.C. 2947.05 and Crim. R. 32 is sufficient to avoid error in the sentencing procedure. State v. Davis (1983), 13 Ohio App. 3d 265. In the within case, the trial judge asked defense counsel on three occasions if there was anything he wished to say prior to sentencing. The court, however, did not once ask appellant to speak on her own behalf. The question then becomes whether the trial judge substantially complied with R.C. 2947.05 and Crim. R. 32 when he asked defense counsel to speak on behalf of appellant. Compliance with R.C. 2947.05 and Crim. R. 32 is mandatory. State v. Hays (1982), 2 Ohio App. 3d 376, 377; State v. Taylor (1990), Cuyahoga App. No. 57679, unreported; State v. Fox (1990), Cuyahoga App. No. 61263, unreported. Some Ohio courts, however, -12- have held that subsantial compliance by the judge with R.C. 2947.05 and Crim. R. 32 is sufficient to avoid error in the sentencing procedure. State v. Davis (1983), 13 Ohio App. 3d 265. In Davis, supra, the court asked whether counsel or defendant had anything to say before sentence was imposed. Counsel only responded. In the within case, the trial judge never asked appellant to speak on her behalf, even though the trial judge asked appellant counsel on three different occasions if there was anything he wanted to say before sentence was imposed. We therefore distinguish Davis and find that the trial court did not substantially comply with Crim. R. 32 and R.C. 2947.05. We hold accordingly that the trial court erred by not giving appellant the opportunity to speak on her behalf in open court. Accordingly, Assignment of Error III is sustained. ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA BECAUSE THE CONSECUTIVE SENTENCES IMPOSED BY THE TRIAL COURT RESULTED IN AN AGGREGATE MINIMUM TERM OF IMPRISONMENT WHICH EXCEEDS THE STATUTORY LIMIT SET FORTH IN SECTION 2929.41(E)(1), OHIO REV. CODE. Appellant argues in Assignment of Error IV that the court erred in denying appellant's motion to withdraw guilty plea. Specifically, appellant argues that the consecutive sentences imposed result in an aggregate minimum term of imprisonment which exceeds the statutory limit. This assignment of error is not well taken. -13- ISSUE: WHETHER THE COURT IMPOSED AGGREGATE MINIMUM CAN EXCEED THE STATUTORY AGGREGATE MINIMUM SENTENCE Appellant's argument that the court imposed sentence exceeds the statutory limit set forth in R.C. 2929.41(E)(3) is without merit. It is well settled law that where a trial court's sentence exceeds the limits established by R.C. 2929.41(E)(3), the terms of R.C. 2929.41(E)(3) are self-executing, automatically limiting the aggregate minimum term to fifteen years. State v. White (1985), 18 Ohio St. 3d 340. Accordingly, Assignment of Error IV is overruled. The trial court is reversed and this matter remanded for further proceedings consistent with this opinion. -14- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATTON, J., CONCURS; JOHN F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .