[Cite as State v. Owens,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 100398 and 100399

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DONOVAN OWENS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-13-571326 and CR-13-572136-A

BEFORE: Blackmon, J., Keough, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: May 29, 2014 ATTORNEYS FOR APPELLANT

Robert L. Tobik Chief Public Defender

Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Daniel A. Cleary Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, J.: {¶1} Appellant Donovan Owens appeals his guilty plea and assigns the following

error for our review:

Appellant’s guilty plea was not knowingly, intelligently, or voluntarily entered when the trial court failed to address the sentencing implications of the firearm specifications during its plea colloquy.

{¶2} Having reviewed the record and pertinent law, we affirm Owens’s

convictions. The apposite facts follow.

{¶3} Owens was indicted in two separate cases. On February 4, 2013, the

Cuyahoga County Grand Jury indicted Owens in Case No. CR-13-571326 for two counts

of drug possession and two counts of drug trafficking. On March 5, 2013, the Cuyahoga

County Grand Jury indicted Owens in Case No. CR-13-572136-A for one count each for

murder, involuntary manslaughter, felonious assault and discharging a firearm on or near

a prohibited premises, all with one-and three-year firearm specifications. He was also

indicted in the second case for drug trafficking with a schoolyard specification and

tampering with evidence.

{¶4} On August 5, 2013, Owens pleaded guilty in both cases. In

CR-13-571326, Owens pleaded guilty to one count each for drug possession and

possession of criminal tools. In CR-13-572136-A, he pleaded guilty to one count each

for involuntary manslaughter with the accompanying one- and three-year firearm

specifications, and tampering with evidence. He also pleaded guilty to one count of drug

trafficking with the accompanying schoolyard specification. {¶5} On August 15, 2013, the trial court sentenced Owens in CR-13-571326 to

two years in prison for drug possession and 12 months for the possession of criminal tools

to be served concurrently. In CR-13-572136-A, the trial court sentenced Owens to seven

years for the involuntary manslaughter with an additional three years for the firearm

specification. He was sentenced to 12 months each on the tampering with evidence and

drug trafficking charges. With the exception of the firearm specification, the convictions

were ordered served concurrently with each other and concurrently with the sentence in

CR-13-571326. Thus, the trial court sentenced him to a total of ten years in prison.

Guilty Plea

{¶6} In his sole assigned error, Owens argues that his guilty plea was not

voluntarily, knowingly, or intelligently entered because the trial court failed to explain to

him the maximum penalty. Specifically, he argues that the trial court failed to explain

the amount of time he could serve on the firearm specifications, that the firearm

specifications carried a mandatory prison time, and that the specifications had to be

served consecutively.

{¶7} Under Crim.R. 11(C)(2), before accepting a guilty plea, a trial court must

address the defendant personally and determine that he is making the plea voluntarily

“with understanding of the nature of the charges and the maximum penalty involved.” A

trial court must strictly comply with the Crim.R. 11(C)(2) requirements regarding the

waiver of constitutional rights. State v. Veney,

,

,

. Regarding the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and 11(C)(2)(b), substantial compliance is sufficient. State v. Stewart,

,

(1977). Advising a defendant of the maximum

sentence has been determined to be a nonconstitutional right. State v. McKissic, 8th Dist.

Cuyahoga Nos. 92332 and 92333,

, ¶ 13, citing State v. Stewart,

,

(1977). We, therefore, review the matter for substantial

compliance.

{¶8} “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). “[I]f it

appears from the record that the defendant appreciated the effect of his plea and his

waiver of rights in spite of the trial court’s error, there is still substantial compliance.”

State v. Caplinger,

,

(4th Dist. 1995).

{¶9} In the instant case, the trial court failed to advise Owens regarding the terms

that would be imposed for the firearm specifications. However, prior to the court taking

the plea, the prosecutor outlined the plea deal and stated as follows regarding the

involuntary manslaughter count with the firearm specifications:

On this case, your Honor, count 2, the involuntary manslaughter is a felony of the first degree. It carries with it a possible prison sentence of 3 to 11 years in yearly increments. The firearm specifications that are attached to it, the one-and three-year firearm specifications, obviously one-year will merge into three-year. That three-year firearm specification must be served prior to and consecutive with any underlying sentence that this Court gives this defendant. So basically, your Honor, that makes this count 2 a minimum sentence of six to 12 years, up to a maximum of 14 years. Tr. 166-167. After the prosecutor finished explaining the plea deal, Owens and his

counsel both stated that the prosecutor explained the plea and sentence correctly.

COURT: Thank you. Mr. Morgan, on behalf of your client, has the prosecutor correctly stated all of the terms and conditions of the pleas in these two cases?

MR. MORGAN: Yes, Judge.

THE COURT: Mr. Owens, you've heard from the prosecutor, you’ve heard from your attorney. Do you understand the plea that’s being proposed here today?

DEFENDANT: Yes, I do.

Tr. 173.

{¶10} Although it is better practice for the trial court to advise the defendant of the

maximum sentence, we have found substantial compliance when the prosecutor has done

so instead. See State v. McKissic, 8th Dist. Cuyahoga Nos. 92332 and 92333,

, ¶ 17; State v. Sims, 8th Dist. Cuyahoga No. 95979,

; State v. Chaney, 8th Dist. Cuyahoga No. 97872,

. Here, although

the trial court failed to include the firearm specifications when discussing the maximum

sentence, the prosecutor set forth the correct maximum sentence, including the firearm

specifications. Owen’s attorney stated that the prosecutor correctly set forth the terms

and conditions of the plea, and Owen stated he understood the plea as explained by the

prosecutor and his attorney. Reviewing the matter under the totality of the

circumstances, as we are required to do, we conclude that Owen subjectively understood

the terms and conditions of his plea. {¶11} Owens cites to this court’s decisions in State v. Douglas, 8th Dist. Cuyahoga

No. 87952,

, and State v. Williams,

,

(8th Dist. 1989), to support his argument that the trial court’s failure to advise on the

firearm specifications invalidated his plea. However, in those cases, there is no evidence

that the prosecutor explained the firearm specifications on the record. Therefore, the

firearm specifications were never explained to the defendant. Additionally, unlike the

defendants in Douglas and Williams, Owens stated on the record that he understood the

plea as set forth by the prosecutor, which explanation included the firearm specifications.

{¶12} Further, a defendant must show prejudice before a plea will be vacated for a

trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of

the plea colloquy are at issue. Veney at ¶ 17. The test for prejudice is whether the plea

would have otherwise been made. State v. Clark,

,

,

. Here, the trial court informed Owens that the maximum sentence

on the manslaughter charge would be 11 years instead of the correct sentence of 14 years.

However, even including the three-year firearm specification, Owens was sentenced to

10 years in prison, which is less than the maximum that was incorrectly stated by the trial

court and less than the correct maximum time of 14 years. Thus, Owens was not

prejudiced by the trial court’s failure to include the firearm specification in discussing the

maximum sentence for the involuntary manslaughter charge. Accordingly, Owens’s sole

assigned error is overruled.

{¶13} Judgment is affirmed. It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. Case remanded to the Cuyahoga County Common Pleas Court for execution

of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, P.J., and MARY EILEEN KILBANE, J., CONCUR