[Cite as State v. Gibson,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. CT2017-0094 GREGORY L. GIBSON, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0288

JUDGMENT: Vacated and Remanded

DATE OF JUDGMENT ENTRY: October 1, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX ERIC J. ALLEN Prosecuting Attorney The Law Offices of Eric J. Allen, Ltd. Muskingum County, Ohio 4605 Morse Rd., Suite 201 Gahanna, Ohio 43230 By: GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2017-0094 2

Hoffman, P.J.

{¶1} Defendant-appellant Gregory L. Gibson appeals his conviction and

sentence entered by the Muskingum County Court of Common Pleas, on one count of

permitting drug abuse with a forfeiture specification, in violation of R.C. 2925.13(A) and

2941.1417, a felony of the fifth degree, after the trial court found him guilty following its

acceptance of his no contest plea. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} A confidential informant working with detectives from the Central Ohio Drug

Enforcement Task Force made a number of controlled buys from an individual by the

name of Gregory Butcher and his organization. On August 29, 2016, the confidential

informant arranged a controlled buy of a quarter-ounce of cocaine from Butcher. The

confidential informant approached the driver’s side of a 2002 Cadillac Escalade, which

was titled in Appellant’s name, and completed a hand-to-hand transaction with Butcher.

Appellant was one of three passengers in the Escalade at the time of the transaction.

{¶3} The confidential informant made additional controlled buys from Butcher as

well as other individuals. These transactions were made from Appellant’s Escalade.

Many of the transactions were conducted close to Appellant’s residence. On August 31,

2016, immediately prior to one of the controlled buys, detectives observed Butcher pull

up in the Escalade in front of Appellant’s residence. Appellant was on the porch and

Butcher spoke to him through the driver’s window. After the conversation, Butcher drove

away in the Escalade and conducted a transaction with the confidential informant.

{¶4} Jayana Pantaleo, Butcher’s former girlfriend, advised detectives Butcher

used the Escalade in his drug trade. Butcher had previously titled the vehicle in another Muskingum County, Case No. CT2017-0094 3

girlfriend’s name as well as in the name of the girlfriend of a member of his organization.

The Escalade was subsequently titled in Appellant’s name. Butcher had asked Pantaleo

to put the title in her name, but she refused to do so.

{¶5} On August 23, 2017, the Muskingum County Grand Jury indicted Appellant

on one count of permitting drug abuse with a forfeiture specification, in violation of R.C.

2925.13(A) and 2941.1417, a felony of the fifth degree.1 Appellant appeared before the

trial court for arraignment on September 1, 2017, and entered a plea of not guilty to the

Indictment. On September 19, 2017, Appellant withdrew his former plea of not guilty and

entered a plea of no contest to the charge. The trial court accepted Appellant’s no contest

plea and found him guilty as charged. The trial court ordered a pre-sentence

investigation. On November 6, 2017, the trial court sentenced Appellant to one year of

community control. The trial court also ordered the 2002 Cadillac Escalade be forfeited.

{¶6} Appellant raises the following assignment of error:

I. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE

COURT ACCEPTED A PLEA OF NO CONTEST WITHOUT INFORMING

THE DEFENDANT CONCERNING THE EFFECT OF A PLEAS [SIC] OF

NO CONTEST.

I.

1Two prior indictments were dismissed, one due to a technical error and the other in an effort to protect a confidential informant. Muskingum County, Case No. CT2017-0094 4

{¶7} Crim.R. 11(B) explains the effect of a no contest plea and provides, in

relevant part:

With reference to the offense or offenses to which the plea is entered:

***

(2) The plea of no contest is not an admission of defendant's guilt,

but is an admission of the truth of the facts alleged in the indictment,

information, or complaint, and the plea or admission shall not be used

against the defendant in any subsequent civil or criminal proceeding.

{¶8} Pursuant to Crim. R. 11, a trial court must follow distinct procedures in

accepting a plea, with the procedures varying based upon whether the offense involved

is a misdemeanor that is a petty offense, a misdemeanor that is a serious offense, or a

felony. State v. Jones,

,

,

, ¶ 11.

Appellant pled no contest to a fifth degree felony. Accordingly, the trial court was required

to follow the procedure set forth in Crim. R. 11(C)(2), which provides:

In felony cases the court may refuse to accept a plea of guilty or a

plea of no contest, and shall not accept a plea of guilty or no contest 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 Muskingum County, Case No. CT2017-0094 5

involved, and if applicable, that the defendant is not eligible for probation or

for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state to

prove the defendant's guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

{¶9} “Pursuant to Crim. R. 11(C), felony defendants are entitled to be informed

of various constitutional and non-constitutional rights, prior to entering a plea.” State v.

Griggs,

, 2004–Ohio–4415,

, ¶ 6. Among the non-

constitutional rights, Crim. R. 11(C)(2)(b) requires the trial court to inform the defendant

of the effect of his guilty or no-contest plea and to determine whether he understands that

effect. State v.

;

at ¶ 10–12.

{¶10} Before accepting Appellant's guilty plea, the trial court engaged in the

following colloquy with him: Muskingum County, Case No. CT2017-0094 6

THE COURT: You understand you’re offering to plead guilty to one

count, that count is permitting drug abuse, and that’s a felony of the fifth

degree?

THE DEFENDANT: Say –

THE COURT: You’re pleading no contest.

THE DEFENDANT: Yes, sir.

THE COURT: I will – I will make that mistake again. Just correct me

when I do it.

THE DEFENDANT: That’s fine.

THE COURT: And you understand that offense, being a felony of the

fifth degree, carries a possible penalty of six to 12 months of imprisonment

in one-month increments, and a fine of up to $2500?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand there’s a forfeiture specification

in regards to the vehicle contained in the indictment?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand that in addition to any type of jail

or prison sentence, the Court can impose what are known as financial

sanctions against you, and that can include court costs, fines, restitution,

that sort of thing?

THE DEFENDANT: Yes, sir.

*** Muskingum County, Case No. CT2017-0094 7

THE COURT: You understand that if you went to prison in this matter

it’s optional, but upon your release from prison the Adult Parole Authority

could place you upon what is known as post-release control, and that could

be for a period of up to three years?

THE DEFENDANT: Yes, sir.

THE COURT: You understand that while on post-release control, you

would be subject to a variety of rules and regulations? Should you fail to

follow those rules and regulations, you could be sent back to prison for a

period of up to nine months for each rule violation you may commit. Total

amount of time you could be sent back to prison would be equal to one-half

of your original prison sentence?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand that if you commit a new felony

while on post-release control, in addition to any sentence you receive for

that new felony, additional time could be added to that sentence in the form

of the time you have left on post-release control, or one year, whichever’s

greater?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand the Court could place you upon

what is known as community control, and that could be for a period of up to

five years?

THE DEFENDANT: Yes, sir. Muskingum County, Case No. CT2017-0094 8

THE COURT: You understand that while on community control,

you’d be subject to a variety of rules and regulations. Should you fail to

follow those rules and regulations, the Court could place you upon more

severe sanctions of community control or could send you to prison for any

period of time it could have originally?

THE DEFENDANT: Yes, sir.

THE COURT: You understand what you’ve been charged with and

any possible defenses you may have to those charges?

THE DEFENDANT: Yes.

***

THE COURT: You understand that by pleading no contest you are

giving up your right to a jury trial?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand that you are giving up your right

to a trial to the Court without a jury; be a Bench trial?

THE DEFENDANT: Yes.

THE COURT: You also understand you are giving up your right to

confront and have your attorney cross-examine anybody who testifies

against you?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand you are giving up your right to

use the power of the Court to subpoena and compel anybody you wanted

to be here * * * and testify on your behalf? Muskingum County, Case No. CT2017-0094 9

THE DEFENDANT: Yes, sir.

THE COURT: And do you also understand that you are giving up

your right at that trial not to take the witness stand, and the fact that you do

not testify could not be used against you in any way?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand you are giving up your right to

require the Prosecutor to prove your guilt beyond a reasonable doubt of

every element of the offense against you?

THE DEFENDANT: Yes, sir.

THE COURT: You also understand you have a right to appeal your

case within 30 days of sentencing, but by pleading no contest you severely

limit the chances of any appeal being successful?

THE DEFENDANT: Yes, sir.

Transcript of September 19, 2017 Change of Plea Hearing at 13-18.

{¶11} As revealed through the exchange during the Crim. R. 11 colloquy, the trial

court advised Appellant of his constitutional rights, the potential penalties for the offense,

and the possibility of post-release control. The record demonstrates the trial court had a

meaningful dialogue with Appellant, fully apprising him of the constitutional rights he was

waiving. However, as Appellant asserts, the trial court completely failed to advise him of

the effect of a no contest plea, as required by Crim. R. 11(C)(2)(b).

{¶12} The right to be informed a no contest plea is a not an admission of guilt, but

is an admission of the truth of the facts alleged in the indictment is non-constitutional; Muskingum County, Case No. CT2017-0094 10

therefore, the trial court’s failure to inform a defendant of the effect of a no contest plea is

subject to review under a standard of substantial compliance. See, State v. Nero,

,

. While the failure to adequately inform a defendant of

his constitutional rights would invalidate a no contest plea under a presumption it was

entered involuntarily and unknowingly, the failure to substantially comply with non-

constitutional rights will not invalidate a plea unless the defendant thereby suffered

prejudice. See,

The test for prejudice is “whether the plea would have otherwise been

made.”

{¶13} We find not only did the trial court fail to substantially comply with Crim. R.

11(C)(2)(b), but the trial court also failed to comply at all with the rule. The trial court did

not inform Appellant of the effect of his no contest plea. We find a trial court is required

to substantially comply with all three subsections of Crim. R. 11(C)(2). Because the trial

court’s failure to do so invalidates Appellant’s plea, we need not reach the issue of

whether Appellant suffered prejudice.

{¶14} Appellant’s sole assignment of error is sustained. Muskingum County, Case No. CT2017-0094 11

{¶15} Appellant’s conviction and sentence are vacated and the matter remanded

for further proceedings consistent with the law and this Opinion.

By: Hoffman, P.J.

Baldwin, J. and

Wise, Earle, J. concur Muskingum County, Case No. CT2017-0094 12