State v. Burns , 2023 Ohio 3121 ( 2023 )

[Cite as State v. Burns, 2023-Ohio-3121.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-129
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
DARNELL L. BURNS,
Trial Court No. 2022 CR 000536
Defendant-Appellant.
OPINION
Decided: September 5, 2023
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Robert T. McDowall, Jr., Robert T. McDowall Co, LLC, 415 Wyndclift Place,
Youngstown, OH 44515 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Darnell L. Burns, appeals from his convictions for
Felonious Assault and Having Weapons While Under Disability in the Lake County Court of
Common Pleas. For the following reasons, we affirm the judgment of the lower court.
{¶2} On August 15, 2022, the Lake County Grand Jury indicted Burns for Attempted
Murder (Count One), a felony of the first degree, in violation of R.C. 2923.02 and R.C.
2903.02(A); Felonious Assault (Count Two), a felony of the second degree, in violation of
R.C. 2903.11(A)(2); and Having Weapons While Under Disability (Count Three), a felony of
the third degree, in violation of R.C. 2923.13(A)(2). Counts One through Three had firearm
specifications pursuant to R.C. 2941.145 and Counts One and Two had repeat violent
offender specifications pursuant to R.C. 2941.149.
{¶3} On November 1, 2022, Burns entered pleas of guilty to Felonious Assault and
Having Weapons While Under Disability as charged in the Indictment, as well as the
specifications on Felonious Assault. The count of Attempted Murder was dismissed and the
specification on Count Three was “removed” as being “incorrect.” The State and Burns
recommended an agreed sentence of 14 to 18 years in prison. At the plea hearing, the State
described that, had the matter gone to trial, the evidence would have shown that Burns,
following an argument with the victim, fired his gun at her vehicle, hitting the driver’s side.
The court explained the rights Burns waived by pleading guilty.
{¶4} As to the sentence, the court advised that the gun specification carried a three-
year mandatory term and would be consecutive to the other terms. The court also advised:
“And you understand that if I give you the maximum on the felonious assault, then I can give
you between one and ten years * * * on the repeat violent offender specification attached to
that felonious assault?,” which would be consecutive. It advised him it could sentence him
to an additional 973 days in prison for a post release control violation. It explained that
Felonious Assault was subject to an indefinite term:
And what that means is I give you a minimum sentence, and the law
derives from that minimum sentence what the maximum sentence
would be. And so the minimum term that is attributable to felonious
assault, the felony two, would be between two and eight years * * *. So
that means for the felonious assault, I pick a number –- [two to eight
years], and the maximum term is one half of that. So if I pick eight
years, which would be your joint recommendation, then half of eight is
four, you add the four to the eight, is twelve years.
It advised: “And you understand that on the weapons under disability the minimum prison is
nine months, the maximum prison is thirty-six months. And it has to be either nine, twelve,
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eighteen, twenty-four, thirty or thirty-six months.” The court explained that the maximum
potential prison term would be 28 years. Finally, it advised: “Now you understand your
agreement with the State calls for me giving you the maximum on the felonious, which would
be eight to twelve including that four year tail, plus three on the firearm specification, plus
two on the RVO specification, plus * * * one year on the weapons under disability,” reiterating
the agreed sentence of 14 to 18 years. The court accepted the pleas and found Burns guilty
of the offenses. The written plea agreement contained a sentencing chart which stated “no”
in relation to whether the sentence on Felonious Assault was mandatory.
{¶5} The matter proceeded immediately to sentencing. Defense counsel and the
State requested that Burns be given the jointly recommended sentence. The court found
that prison was mandatory on the firearm specification and “there is a presumption for prison
on the felonious assault” which “cannot be overridden.” It found the recommended sentence
appropriate and ordered that Burns serve two years for the repeat violent offender
specification, three years on the gun specification, an indefinite term of eight to twelve years
for Felonious Assault, and one year for Having Weapons While Under Disability. It made
consecutive sentencing findings and ordered an aggregate minimum term of 14 years and
maximum term of 18 years.
{¶6} On November 17, 2022, a “continuation of the sentencing hearing” was held.
The court recognized that it had mentioned there was a presumption of prison for Felonious
Assault at the prior sentencing hearing but, pursuant to R.C. 2929.13(F)(6), the sentence
was mandatory due to Burns’ prior convictions. The court indicated that it wanted to make
the record clear as to the mandatory time and repeated its prior sentence. The court then
asked counsel for both parties whether this “change[d]” anything, to which counsel
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responded in the negative. The court inquired: “Mr. Burns, does this change anything? If it
changes something, say it now,” and then indicated that Burns was “silent on that point” and
the matter concluded. On December 7, 2022, the court issued a Judgment Entry
memorializing the sentence.
{¶7} Burns timely appeals and raises the following assignment of error:
{¶8} “Appellant’s plea was not knowingly and intelligently made in that (1) he was
not correctly advised of the penalties, and (2) he was denied effective assistance of counsel.”
{¶9} Burns argues that his guilty plea was not knowingly and intelligently entered
where his plea agreement and statements by the judge during the plea colloquy incorrectly
explained that there was presumed but non-mandatory incarceration for Felonious Assault.
{¶10} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement
of the plea unconstitutional under both the United States Constitution and the Ohio
Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “The best
way to ensure that pleas are entered knowingly and voluntarily is to simply follow the
requirements of Crim.R. 11 when deciding whether to accept a plea agreement.” State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.
{¶11} Crim.R. 11(C)(2) provides that, “[i]n felony cases the court * * * shall not
accept a plea of guilty * * * without first addressing the defendant personally * * * and doing
all of the following: (a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for probation or for the imposition of community
control sanctions * * *; (b) Informing the defendant of and determining that the defendant
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understands the effect of the plea of guilty” and that the court may proceed to sentencing;
and (c) informing the defendant of rights waived by entering a plea, including the right to a
jury trial, to confront and subpoena witnesses, the right not to be compelled to testify, and
the requirement that the state prove guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(a)-
(c).
{¶12} “On appellate review [of compliance with Crim.R. 11] the questions to be
answered are ‘(1) has the trial court complied with the relevant provision of the rule? (2) if
the court has not complied fully with the rule, is the purported failure of a type that excuses
a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice
is required, has the defendant met that burden?’” State v. Servantes, 11th Dist. Portage
Nos. 2022-P-0031, et al., 2023-Ohio-2116, ¶ 35, citing State v. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765, 164 N.E.3d 286, ¶ 17.
{¶13} “When a trial court fails to explain the constitutional rights that a defendant
waives by pleading guilty or no contest,” i.e., the rights contained in Crim.R. 11(C)(2)(c), the
courts “presume that the plea was entered involuntarily and unknowingly, and no showing
of prejudice is required.” Dangler at ¶ 14, citing State v. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462, ¶ 31. Further, “a trial court’s complete failure to comply with a
portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” Id. at ¶ 15.
{¶14} As an initial matter, the State contends that Burns’ arguments are precluded
on appeal because he did not file a motion to withdraw his plea pursuant to Crim.R. 32.1,
citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 12 (appellate
review was precluded where defendant did not raise the argument that a plea was entered
involuntarily due to the failure to advise him of certain rights in a motion to withdraw plea)
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and State v. Sumes, 5th Dist. Stark No. 2001CA00196, 2002 WL 501496, *2 (Apr. 1, 2002)
(error relating to acceptance of defendant’s plea should have been raised in a motion to
withdraw).
{¶15} We recognize, however, that the Ohio Supreme Court has held: “if a trial court
fails during a plea colloquy to advise a defendant that the sentence will include a mandatory
term of postrelease control, the defendant may dispute the knowing, intelligent, and
voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct
appeal.” State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 25.
Courts have applied this proposition, that a defendant can use either a direct appeal or
motion to withdraw to challenge the voluntary nature of the plea, to various circumstances
where the defendant alleges his plea has been entered involuntarily. State v. Hughes, 8th
Dist. Cuyahoga No. 98666, 2013-Ohio-1037, ¶ 5, fn. 1 (where defendant argued the court
did not properly advise him of possible incarceration during the plea hearing, his failure to
file a motion to withdraw did not preclude consideration on appeal pursuant to Sarkozy);
State v. Aguilar, 9th Dist. Wayne No. 10CA0051, 2011-Ohio-6008, ¶ 7-9 (considering the
merits of the argument that the trial court failed to properly advise the defendant of judicial
release, since he “may seek to vacate his guilty plea either by filing a motion to withdraw * *
* or upon direct appeal”). Given this application of the principle as stated in Sarkozy, we will
proceed to consideration of the merits on appeal.
{¶16} The State does not dispute that there was an error made when the plea
agreement improperly stated that the Felonious Assault offense did not carry a mandatory
sentence and this issue was not clarified at the plea hearing. R.C. 2929.13(F)(6) provides
that a court “shall impose a prison term” for a felony of the first or second degree “if the
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offender previously was convicted of or pleaded guilty to * * * any first or second degree
felony.” Pursuant to the repeat violent offender specification, Burns had been convicted of
Complicity to Aggravated Robbery and Complicity to Felonious Assault, felonies of the first
and second degree.
{¶17} The issue, then, is whether this error in failing to advise Burns that the
Felonious Assault charge carried a mandatory term rendered his plea involuntary. As stated
above, a trial court is required to “determin[e] that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or for the imposition
of community control sanctions.” Crim.R. 11(C)(2)(a). The court advised Burns of the
maximum sentence for each charge and the overall maximum of 28 years in prison and
explained the jointly recommended sentence of 14 to 18 years. He was not, however,
advised specifically of the maximum sentence for Felonious Assault or that he was ineligible
for a term of probation or community control.
{¶18} While Crim.R. 11 does not specifically address advisements required for
mandatory sentences, courts have found that the failure to properly advise a defendant
regarding the fact of a mandatory sentence and that he is not eligible for community control
can render a plea involuntarily entered. State v. Lehner, 5th Dist. Guernsey No. 21 CA 26,
2022-Ohio-2547, ¶ 30 (the court must determine a defendant’s understanding that he is
subject to a mandatory sentence and is ineligible for probation); State v. Byrd, 178 Ohio
App.3d 646, 2008-Ohio-5515, 899 N.E.2d 1033, ¶ 30 (2d Dist.). See also State v. Gensert,
2016-Ohio-1163, 61 N.E.3d 636, ¶ 24 (11th Dist.) (recognizing that the advisement of the
mandatory nature of a prison term was sufficient to make a defendant aware he was
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ineligible for community control). As outlined above, there was no specific advisement made
about the mandatory nature of the Felonious Assault sentence or advisement that Burns
was not eligible for community control, although he was advised that a portion of his
sentence, for the firearm specification, was mandatory and the court stated: “you understand
I have to send you to prison?”
{¶19} Presuming that the court’s failure to make a mandatory sentence advisement
and the improper statement in the plea agreement violated Crim.R. 11(C), we must next
determine whether such error can be reviewed for prejudice. As the Ohio Supreme Court
explained in Dangler, reversal is typically warranted for violations of Crim.R. 11(C) only if it
results in prejudice to the defendant. However, prejudice need not be demonstrated if the
improper advisements involved constitutional aspects of the plea colloquy or where the trial
court completely failed to comply with Crim.R. 11(C). 162 Ohio St.3d 1, 2020-Ohio-2765,
164 N.E.3d 286, at ¶ 14-16. There is no question that there was constitutional compliance
here. Further, we do not find a complete failure to comply with Crim.R. 11(C) since
advisements relating to the maximum penalty were provided.
{¶20} Under similar circumstances to those present here, a plurality of the Ohio
Supreme Court rejected the argument that a defendant need not show prejudice from
improper Crim.R. 11 advisements. In State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206,
147 N.E.3d 623, the defendant entered guilty pleas to Sexual Battery and related offenses
in exchange for dismissal of the remaining counts and an agreed recommended sentence.
Id. at ¶ 2. During the plea colloquy, the court improperly advised the defendant that his
prison sentences were not mandatory. Id. at ¶ 4, 9. On appeal, Straley argued that he need
not show prejudice “because the trial court’s misstatements had the same effect as a
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complete failure to satisfy Crim.R. 11.” Id. at ¶ 19. The Supreme Court found that the trial
court did not wholly fail to comply with Crim.R. 11(C)(2)(a) and that Straley must show
prejudice since the trial court had reviewed the maximum sentences with Straley and he
confirmed his understanding of those maximum sentences. Id. Here, Burns was advised of
the maximum sentence for each offense and indicated his understanding, despite not being
advised of the mandatory nature of the sentence for Felonious Assault. Consistent with
Straley, the court did not completely fail to comply with Crim.R. 11(C)(2)(a).
{¶21} Burns cites State v. Gonzalez, 9th Dist. Summit No. 29018, 2019-Ohio-4882,
for the proposition that a prejudice analysis is unwarranted where a defendant is not advised
of a mandatory sentence. In Gonzalez, the trial court failed to advise the defendant of the
mandatory, consecutive nature of his sentence. Id. at ¶ 9. This case is distinguishable from
the present matter because the failure to advise of a mandatory consecutive sentence
impacts the maximum overall sentence. Here, the maximum sentence was not changed by
the mandatory nature of the Felonious Assault term. For this reason, and under the
guidance offered by Straley, we will proceed to conduct an analysis of whether prejudice
occurred.
{¶22} “The test for prejudice is ‘whether the plea would have otherwise been
made.’” Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 16, quoting State
v. Nero, 56 Ohio St. 106, 108, 564 N.E.2d 474 (1990). Prejudice must be established “‘on
the face of the record.’” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City
Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26.
{¶23} Although Burns argues that the mandatory term for Felonious Assault “altered
the maximum sentence,” he does not explain how this is the case. Whether the term was
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mandatory did not increase the maximum amount of time he could serve overall. The
mandatory nature of the Felonious Assault term did not impact the other, proper
advisements made by the court regarding the maximum prison terms that could be served
on each of the offenses for which Burns was convicted or the aggregate maximum term.
{¶24} Because there was an agreed sentence of 14-18 years in prison, and where
Burns was aware at least some portion of the sentence was mandatory, there is also no
reason to conclude that Burns believed he would receive probation or entered a plea with
the expectation that he would not receive prison time. He was fully aware that a 14-18 year
agreed sentence was likely. See Straley at ¶ 17 (the court rejected the defendant’s
argument that he would not have pled guilty had he known his sentence was mandatory
where he was aware of the maximum sentences, he was advised the sentences could be
consecutive, and the State recommended the sentences be served consecutively).
{¶25} Burns argues that the failure to advise him of the proper mandatory term he
would serve impacted “the time before which Defendant would be eligible to petition for early
release.” Pursuant to R.C. 2929.20, in the case of a nonmandatory prison term, a defendant
can seek release after a specified period of time. For example, had all of his time been
nonmandatory, Burns would have been eligible to apply for judicial release after a period of
half of his sentence. R.C. 2929.20(C)(1)(e). When a sentence contains a mandatory term
of prison combined with nonmandatory terms, the defendant cannot seek judicial release
until a specified period of time after the mandatory term is complete. R.C. 2929.20(C)(1)(a)-
(d); State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11 (“Ohio law
provides that a prisoner cannot apply for judicial release until a period of time ‘after the
expiration of all mandatory prison terms’ in the stated prison sentence”). Burns is correct
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that the date he could file for judicial release was impacted by the mandatory nature of the
Felonious Assault sentence.
{¶26} “Unless incorporated into a plea agreement, the trial court is not under an
obligation to inform a defendant regarding his eligibility for judicial release.” State v. Mitchell,
11th Dist. Trumbull No. 2004-T-0139, 2006-Ohio-618, ¶ 14. A guilty plea may be found
invalid, however, where misinformation is given about judicial release. State v. Brownlee,
11th Dist. Lake No. 2022-L-075, 2023-Ohio-1090, ¶ 17. To warrant reversal due to such
misinformation, “the defendant must demonstrate that he was prejudiced by the erroneous
representation, i.e., that but for the misrepresentation regarding judicial release, he would
not have entered the plea.” Mitchell at ¶ 15.
{¶27} Here, there was no specific advisement given regarding Burns’ eligibility for
judicial release, apart from the court discussing judicial release in relation to indefinite
sentences: “Not that I’m thinking of judicial release, but I’m telling you that judicial release is
tied to the aggregate minimum term, not the tail. So you know, you have to wait a certain
period of time before you can file for judicial release.” While he was not provided a specific
misrepresentation about the date of judicial release, as noted above, the lack of an
advisement about a mandatory sentence did impact his eligibility date.
{¶28} However, we do not find the record indicates that, but for the failure to advise
him of the mandatory sentence and any potential misunderstanding of his eligibility for
judicial release, Burns would not have pled guilty. Burns faced a maximum sentence of 28
years and benefited from a recommended sentence of 14-18 years. As a result of his plea,
the State dismissed the charge of Attempted Murder. Further, when the second sentencing
hearing was held, Burns was advised of the error relating to the mandatory sentence and
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was given the opportunity to respond but remained silent. He did not choose to withdraw
his plea or advance an argument that he was impacted by this error. While Burns argues
his silence did not indicate his understanding of this issue as it relates to judicial release, he
also did not inquire further about the significance of this advisement or how it impacted him.
{¶29} Burns received the benefit of the sentence he sought and he was never
advised that he would receive judicial release, with the court specifically noting that it was
not “thinking of judicial release.” We do not find this rises to the level of prejudice, similar to
the court in State v. Rudy, 3d Dist. Allen Nos. 1-22-56, et al., 2023-Ohio-2023. There, the
court found that an incorrect explanation of judicial release did not result in prejudice where
judicial release was not a term of the plea agreement, the record did not indicate eligibility
for judicial release was a consideration and there were justifications leading to the entry of
the plea including the agreed sentence recommendation and dismissal of another count. Id.
at ¶ 19. See also Mitchell at ¶ 16 (“[i]f, in fact, Mitchell subjectively held some such belief
[that he expected to receive judicial release], there is not evidence of it in the record or that
such belief was essential to his decision to plead guilty”).
{¶30} Burns also emphasizes that two separate sentencing hearings were held and
that, although the court advised him at the second hearing that the sentence was mandatory,
this created an inconsistency with the plea agreement. We find no error in holding a
“continuation” of the sentencing hearing as the court had not yet entered a final judgment
on the sentence. Further, Burns provides no authority for the proposition that the plea
agreement being inaccurate warrants further action by this court or the trial court. We find
no basis to order the plea form be altered. It is accurate as to the substance of what Burns
was aware of when he entered his plea.
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{¶31} At oral argument, defense counsel indicated that a proper remedy for the
alleged error would be either to allow Burns to withdraw his plea or to remand for
resentencing. The assignment of error raised in this appeal relates to whether the plea was
voluntarily entered rather than to the validity of the sentence itself, although we observe that,
in his conclusion, Burns argues that “the sentencing should be reversed” due to the failure
to advise Burns of the mandatory nature of the sentence. No argumentation or authority is
provided which would give a basis to reverse the sentence. There is no argument that the
sentence ultimately ordered and journalized was contrary to law and it was also consistent
with the agreed sentence recommended jointly by Burns and the State. The appropriate
relief for the error claimed by Burns, if it had merit, would be to vacate his plea. Nonetheless,
for the reasons stated above, we find no meritorious argument warranting relief.
{¶32} Finally, Burns argues that trial counsel was ineffective in his representation.
Although limited argumentation is presented as to this issue, he indicates that counsel
improperly stated that the mandatory nature of the sentence “did not change anything” in
relation to the entry of the guilty pleas.
{¶33} To demonstrate ineffective assistance of counsel, a defendant must prove “(1)
that counsel’s performance fell below an objective standard of reasonableness, and (2) that
counsel’s deficient performance prejudiced the defendant resulting in an unreliable or
fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-
389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶34} As discussed above, we do not find that prejudicial error or an unfair outcome
resulted from the entry of Burns’ plea without an advisement regarding the mandatory nature
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of the Felonious Assault or from the failure to object to it at the second sentencing hearing.
As such, even presuming it was unreasonable for counsel not to recognize the error relating
to the mandatory sentence, we do not find that it warrants reversal.
{¶35} The sole assignment of error is without merit.
{¶36} For the foregoing reasons, Burns’ convictions for Felonious Assault and
Having Weapons While Under Disability in the Lake County Court of Common Pleas are
affirmed. Costs to be taxed against appellant.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
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