[Cite as State v. Rusu,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25597

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MICHAEL H. RUSU COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 09 12 3596(B)

DECISION AND JOURNAL ENTRY

Dated: June 13, 2012

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellant, Michael Rusu, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms in part and reverses in part.

I

{¶2} Rusu entered into a written plea of guilt after he and another man stole a trailer

and, in the course of their conduct, proximately caused the death of Michael Hall. Rusu pleaded

guilty to three charges: (1) vehicular homicide, a first-degree misdemeanor in violation of R.C.

2903.06(A)(3); (2) theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1); and (3)

tampering with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1). Rusu’s

vehicular homicide conviction required the trial court to suspend Rusu’s driver’s license. At his

plea hearing, the court informed Rusu that he would be subject to a class five suspension that

could span a definite period of six months to three years. In actuality, Rusu’s conviction

required a more severe class four suspension. When the trial court sentenced Rusu, the court 2

imposed the correct class four suspension and suspended Rusu’s driver’s license for a period of

four years. The court also sentenced Rusu to four years in prison, costs, and attorney fees.

{¶3} Rusu now appeals from his convictions and raises seven assignments of error for

our review. For ease of analysis, we combine and reorder several of the assignments of error.

II

Assignment of Error Number One

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY FINDING THAT RUSU’S PLEA WAS MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WHEN THE COURT DID NOT PROPERLY OUTLINE THE PUNISHMENTS THAT WERE POSSIBLE.

Assignment of Error Number Two

RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL’S (sic) COURT’S ACCEPTANCE OF RUSU’S PLEA WAS DEFECTIVE.

{¶4} In his first two assignments of error, Rusu argues that he did not knowingly,

voluntarily, and intelligently enter his guilty plea because he entered it with the understanding

that the maximum period for which his license could be suspended was three years when, in fact,

it was five. He further argues that his trial counsel was ineffective because he failed to object to

his plea on the foregoing basis.

{¶5} “In order for a plea to be constitutionally enforceable, it must be entered

knowingly, voluntarily, and intelligently.” State v. Dowdell, 9th Dist. No. 25930, 2012-Ohio-

1326, ¶ 7. “A trial court’s obligations in accepting a plea depend upon the level of offense to

which the defendant is pleading.” State v. Jones,

,

, ¶ 6.

Crim.R. 11 imposes different obligations for felony cases than for misdemeanor cases. See

Crim.R. 11(C)-(E). Specifically, a trial court need not inform a defendant of the maximum 3

possible penalty for his offense in a misdemeanor case involving a petty offense. See Jones at

paragraph one of the syllabus. On the contrary, in felony cases a court must inform a defendant

“of the nature of the charges and of the maximum penalty involved.” Crim.R. 11(C)(2)(a).

Accord State v. Souris, 9th Dist. No. 24550,

, ¶ 5.

{¶6} A defendant’s right to be informed of his maximum possible penalty in a felony

case is a non-constitutional right, so a substantial compliance standard applies. State v. Hubbard,

9th Dist. No. 25141,

. “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. Nero,

(1990). “When the trial judge does

not substantially comply with Crim.R. 11 in regard to a non[-]constitutional right, reviewing

courts must determine whether the trial court partially complied or failed to comply with the

rule.” (Emphasis sic.) State v. Clark,

,

, ¶ 32. If a court

partially complied with Crim.R. 11, a defendant must demonstrate prejudice before his plea will

be vacated.

“The test for prejudice is ‘whether the plea would have otherwise been made.’”

quoting

.

{¶7} The record reflects that the trial court failed to inform Rusu of the maximum

possible penalty for his vehicular homicide offense when it accepted his plea. Specifically, the

court informed Rusu he could receive up to a three year license suspension when, in fact, he

could receive up to five years. See R.C. 4510.02(A)(4) (definite suspension period for class four

suspension set as one to five years); State v. Harris, Slip Opinion No.

,

paragraph one of the syllabus (mandatory driver’s license suspension constitutes part of

offender’s sentence). The court later sentenced Rusu to a four-year suspension. 4

{¶8} The State acknowledges the trial court’s error in the plea colloquy, but argues that

the error was harmless because the court was not required to inform Rusu of the maximum

possible penalty for his petty offense. See Crim.R. 11(E); State v. Higby, 9th Dist. No.

10CA0054,

. The State correctly classifies Rusu’s vehicular homicide

conviction as a petty offense because it is a first-degree misdemeanor punishable by up to six

months in jail. See R.C. 2929.24(A)(1); Crim.R. 2(D) (defining “petty offense”). The trial

court’s duty during a plea colloquy, however, depends upon the nature of the “case,” not the

nature of the individual offenses within a case. Rusu’s case was a felony case because, in

addition to the first-degree misdemeanor, he pleaded guilty to two felonies. Therefore, the trial

court had to substantially comply with Crim.R. 11(C) and inform Rusu of “the maximum penalty

involved.” Crim.R. 11(C)(2)(a). See generally State v. Karmasu, 9th Dist. No. 25210, 2011-

Ohio-3253, ¶ 32-41 (plea analyzed under Crim.R. 11(C) when case involved both felonies and

misdemeanors).

{¶9} The trial court partially complied with Crim.R. 11(C) because it informed Rusu

his license would be suspended, but misstated the possible length of the suspension. State v.

Wagner, 9th Dist. No. 08CA0063-M,

, ¶ 14 (partial compliance where court

conveyed inaccurate information about maximum penalty). Thus, the burden is upon Rusu to

demonstrate that, but for the trial court’s error, he would not have entered his plea. Id. at ¶ 16.

Rusu limits his prejudice analysis to a statement that he might not have pleaded guilty had the

court told him his suspension could last for five years. Rusu’s statement does not demonstrate

prejudice. In exchange for his guilty plea, the State dismissed six other charges, including ones

for involuntary manslaughter and reckless homicide. Moreover, the difference between the

suspension the trial court informed Rusu he could receive and the suspension the court actually 5

imposed only amounts to one year. Given the record before us, we cannot agree with Rusu’s

assertion that he was prejudiced. This Court declines to vacate Rusu’s plea.

{¶10} In a related assignment of error, Rusu argues that he received ineffective

assistance of counsel because his counsel did not object when the trial court failed to properly

inform him of his maximum possible sentence. An ineffective assistance claim requires a

defendant to prove that his counsel’s deficient performance prejudiced him. Strickland v.

Washington,

(1984). To demonstrate prejudice, “defendant must demonstrate

that there is a reasonable probability that, but for his counsel’s error, he would not have pleaded

guilty and would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049-M,

, ¶ 4. As we have already determined that Rusu has not proven prejudice as a

result of his plea, we reject his ineffective assistance of counsel argument. Rusu’s first and

second assignments of error are overruled.

Assignment of Error Number Three

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST RUSU WITHOUT COMPLYING WITH R.C. 2947.23(A).

Assignment of Error Number Four

RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION OF COURT COSTS UNDER R.C. 2947.23(A) WAS DEFECTIVE.

Assignment of Error Number Seven

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING ATTORNEY FEES AGAINST DEFENDANT WITHOUT COMPLYING WITH R.C. 2941.51(D), AND NOT DOING SO IN OPEN COURT. 6

{¶11} In his third and seventh assignments of error, Rusu argues that the court erred by

imposing costs and attorney fees against him. In his fourth assignment of error, Rusu argues that

his trial counsel was ineffective for failing to object to the court’s imposition of costs.

{¶12} “R.C. 2947.23 mandates that the trial court assess the cost of prosecution against a

convicted criminal defendant.” State v. Payne, 9th Dist. No. 21178,

, ¶ 15. Yet,

a trial court must orally inform a defendant of his obligation to pay costs at the time of

sentencing so as to give the defendant an opportunity to claim indigency and seek a waiver of

payment. State v. Joseph,

,

. Similarly, R.C. 2941.51(D)

allows a trial court to order a defendant to pay some or all of his court-appointed attorney fees,

but only after finding that the defendant is financially capable of doing so. State v. Marrero, 9th

Dist. No. 10CA009867,

. A trial court commits reversible error when it

imposes costs or attorney fees against a defendant in the absence of such a notification.

; State v. Warner, 9th Dist. No. 96CA006534,

, *3-4 (Sept. 21, 2001).

The appropriate remedy for such an error as to costs is a “remand * * * to the trial court for the

limited purpose of allowing [the defendant] to move the court for a waiver of the payment of

court costs.” State v. Stallworth, 9th Dist. No. 25461,

, quoting

. As to an error in the imposition of attorney fees, the appropriate remedy is a remand for “a

determination of [the defendant’s] financial ability to pay for his court-appointed counsel.”

Warner at *4.

{¶13} The record reflects that the trial court imposed costs and attorney fees upon Rusu

in its sentencing entry, but did not orally inform him of his obligation to pay costs or inform him

that he would be responsible for his attorney fees at the time of sentencing. Rusu, therefore, did

not have the opportunity to claim an inability to pay based on his indigency. His third and 7

seventh assignments of error are sustained on that basis and the matter is remanded to allow him

to seek a waiver of court costs and for a determination of his ability to pay his attorney fees.

; Warner at *4.

{¶14} In light of our resolution of Rusu’s third and seventh assignments of error, his

argument that his trial counsel was ineffective for failing to object to the imposition of costs is

moot. State v. Ross, 9th Dist. No. 25778,

. Therefore, we decline to

address his fourth assignment of error. App.R. 12(A)(1)(c).

Assignment of Error Number Five

THE COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING RUSU ON CHARGES TO WHICH HE WAS NOT CHARGED AND TO WHICH HE DID NOT PLEAD.

Assignment of Error Number Six

RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT WAS SENTENCING RUSU FOR CHARGES TO WHICH HE WAS NOT CHARGED AND TO WHICH HE DID NOT PLEAD.

{¶15} In his fifth assignment of error, Rusu argues that the court improperly sentenced

him in connection with an offense for which he was never indicted. As such, Rusu argues, he

did not have notice of the charges against him. In his sixth assignment of error, Rusu argues that

his trial counsel was ineffective for failing to object to the improper sentence.

{¶16} The portion of the sentencing entry Rusu challenges reads:

IT IS FURTHER ORDERED that pursuant to Ohio Revised Code Section 2925.11(E)(2), the Defendant’s driver’s license and all driving privileges be SUSPENDED for a period of 4 years, which is mandatory and required by statute.

R.C. 2925.11(E)(2) governs license suspensions in drug possession offenses. Rusu was not

convicted of a drug possession offense. The trial court should have imposed Rusu’s driver’s

license suspension pursuant to R.C. 2903.06(C)/R.C. 4510.02(A)(4) after Rusu pleaded guilty to 8

vehicular homicide. The record reflects that the trial court simply cited the wrong statute in

imposing Rusu’s license suspension.

{¶17} Crim.R. 36 allows a court to correct a clerical mistake in a judgment at any time.

Generally, the appropriate remedy for such a clerical error is a nunc pro tunc entry. State v.

Zack, 9th Dist. No. 11CA009955,

. As addressed above, however, this

matter must be remanded to the trial court to allow Rusu to seek a waiver of court costs and for a

determination of his ability to pay his attorney fees. Because further proceedings are required,

the trial court will have an opportunity to correct its clerical error at that time. Rusu’s fifth

assignment of error is sustained solely on the basis that his sentencing entry contains a clerical

error that the trial court must address upon remand. Based on our resolution of Rusu’s fifth

assignment of error, his ineffective assistance argument is moot and we decline to address his

sixth assignment of error. App.R. 12(A)(1)(c).

III

{¶18} Rusu’s third, fifth, and seventh assignments of error are sustained for the reasons

set forth above. His fourth and sixth assignments of error are moot, and his remaining

assignments of error are overruled. The judgment of the Summit County Court of Common

Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with

the foregoing opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. 9

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

BETH WHITMORE FOR THE COURT

MOORE, J. CONCURS IN JUDGMENT ONLY.

CARR, J. CONCURRING IN JUDGMENT ONLY.

{¶19} I concur in judgment only. In regard to the first assignment of error, I concur in

the majority’s judgment solely on the basis that Rusu has not demonstrated that the error in the

license suspension would have caused him not to plead guilty.

APPEARANCES:

DENISE E. FERGUSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.