[Cite as State v. Terrell,
2021-Ohio-1840.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-24
:
v. : Trial Court Case Nos. 2019-CR-523
:
MARC TERRELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of May, 2021.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 46 ½ North Sandusky Street, Delaware,
Ohio 43015
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Marc Terrell, appeals from his conviction in the Clark
County Court of Common Pleas after he pled guilty to aggravated vehicular homicide,
aggravated vehicular assault, and operating a vehicle under the influence of alcohol
(“OVI”). In support of his appeal, Terrell contends that his guilty pleas to aggravated
vehicular homicide and aggravated vehicular assault were not knowingly, intelligently,
and voluntarily entered and should be vacated. Terrell also claims that his trial counsel
provided ineffective assistance during his plea proceedings and that the trial court erred
by imposing maximum, consecutive prison sentences. For the reasons outlined below,
Terrell’s judgment of conviction will be reversed and the matter will be remanded to the
trial court for further proceedings.
Facts and Course of Proceedings
{¶ 2} On August 20, 2019, Terrell was indicted for one count of aggravated
vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a felony of the second degree;
two counts of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), felonies
of the third degree; one count of OVI in violation of R.C. 4511.19(A)(1)(i), a misdemeanor
of the first degree; and one count of tampering with evidence in violation of R.C.
2921.12(A)(1), a felony of the third degree. The charges stemmed from Terrell’s colliding
with an oncoming vehicle while he was driving under the influence of alcohol. As a result
of the collision, one of the three occupants inside the other vehicle was killed and another
occupant was seriously injured. When law enforcement arrived at the scene of the
accident, one of the officers observed Terrell attempting to hide a case of beer that was
inside his vehicle.
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{¶ 3} Following plea negotiations, Terrell agreed to plead guilty to aggravated
vehicular homicide, OVI, and one of the two counts of aggravated vehicular assault. In
exchange for Terrell’s guilty plea, the State agreed to dismiss the remaining charges
against him. The State also agreed to have a presentence investigation (“PSI”)
completed for purposes of sentencing.
{¶ 4} At the plea hearing, the trial court engaged in a plea colloquy with Terrell.
During the plea colloquy, the trial court advised Terrell of the possible penalty he faced
for aggravated vehicular homicide and stated the following:
The aggravated vehicular homicide offense is a felony of the second
degree. The sentencing range for that offense would be anywhere
from community control sanctions also known as probation up to a
maximum penalty of twelve years in the Ohio State Penitentiary.
Typically for a second degree felony, the sentencing range, if prison is
imposed, is anywhere between two and eight years. The law has recently
changed. And whatever amount of time the court would impose, if it
imposed a prison sentence, that would be the minimum term; and then
the maximum term would be adding 50% to that minimum term. So
essentially, the maximum prison term for this offense would be an eight-
year prison term, but it would be an indefinite prison term and adding 50%
to the eight, which is four, and it would make it eight to twelve as an
indefinite sentence.
(Emphasis added.) Plea Hearing Trans., p. 6-7.
{¶ 5} After Terrell indicated that he understood the aforementioned statements, the
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trial court advised Terrell about the possible penalty for aggravated vehicular assault and
stated the following: “For the aggravated vehicular assault offense, that’s a felony of the
third degree. The sentencing range for that offense would be anywhere from
community control sanctions up to a maximum penalty of five years in the Ohio
State Penitentiary.” (Emphasis added.) Id. at 7.
{¶ 6} Terrell once again indicated that he understood the trial court’s statements.
Thereafter, the trial court advised Terrell about the penalty for OVI and stated the
following: “The OVI offense is a first degree misdemeanor. The sentencing range for
that offense would be anywhere from three days of incarceration, which would be
mandatory, up to a maximum penalty of six months incarceration.” (Emphasis added.)
Id. at 7-8.
{¶ 7} Shortly after Terrell indicated that he understood the trial court’s statements
regarding the OVI offense, the trial court once again indicated that Terrell was eligible for
community control sanctions and stated the following: “If you were placed on
community control, conditions of it could include time in the county jail, fines, and
restitution. If you’re sentenced to prison, then upon your release you will be placed
on a mandatory post-release control.” (Emphasis added.) Plea Hearing Trans., p. 9.
{¶ 8} Following its plea colloquy, the trial court accepted Terrell’s guilty pleas as
knowingly, intelligently, and involuntarily entered. The trial court then ordered a PSI and
scheduled the matter for a sentencing hearing. At the sentencing hearing, the trial court
imposed the maximum possible prison sentence for each of the three offenses and
ordered the sentences to be served consecutively for a total, aggregate term of 13.5 years
to 17.5 years in prison.
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{¶ 9} Terrell now appeals from his conviction, raising three assignments of error
for review.
First Assignment of Error
{¶ 10} Under his first assignment of error, Terrell contends that his guilty pleas to
aggravated vehicular homicide and aggravated vehicular assault were not knowingly,
intelligently, and voluntarily entered. In support of this claim, Terrell asserts that the trial
court failed to inform him at the plea hearing that by pleading guilty, he would be subject
to mandatory prison terms for those offenses. Terrell also claims that the trial court
incorrectly advised him that he was eligible for community control sanctions. Terrell
further argues that the plea form provided by the trial court incorrectly stated that prison
terms were not mandatory for the aggravated vehicular homicide and aggravated
vehicular assault offenses. As a result of this misinformation, Terrell asserts that the trial
court completely failed to comply with Crim.R. 11(C)(2)(a), which necessitates the
vacation of his guilty pleas and the reversal of his conviction.
{¶ 11} Generally speaking, “a defendant is not entitled to have his plea vacated
unless he demonstrates he was prejudiced by a failure of the trial court to comply with the
provisions of Crim.R. 11(C).” State v. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765,
164
N.E.3d 286, ¶ 16, citing State v. Nero,
56 Ohio St.3d 106, 108,
564 N.E.2d 474 (1990).
“The test for prejudice is ‘whether the plea would have otherwise been made.’ ”
Id.,
quoting
Nero at 108. There are, however, two exceptions to this rule. Id. at ¶ 14-16.
{¶ 12} The first exception is that the trial court must comply strictly with Crim.R.
11(C)(2)(c) as it pertains to the waiver of federal constitutional rights. Id. at ¶ 14. “When
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a trial court fails to explain the constitutional rights that a defendant waives by pleading
guilty or no contest, we presume that the plea was entered involuntarily and unknowingly,
and no showing of prejudice is required.” Id., citing State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748,
893 N.E.2d 462, ¶ 31.
{¶ 13} The second exception is that “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, citing State v. Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509,
881 N.E.2d 1224, ¶ 22.
However, a defendant still must show prejudice if the trial court partially complied with
Crim.R. 11(C) in regard to a non-constitutional right. State v. Bishop,
156 Ohio St.3d
156,
2018-Ohio-5132,
124 N.E.3d 766, ¶ 19.
{¶ 14} Pursuant to Crim.R. 11(C)(2)(a), before accepting a guilty plea, the trial
court must personally address the defendant and determine “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 at the sentencing hearing.” Because this
is a non-constitutional advisement, the trial court must completely fail to comply with a
portion of this advisement in order for a plea to be vacated without a demonstration of
prejudice.
{¶ 15} With regard to mandatory prison sentences, we have explained that:
“ ‘When a defendant on whom a mandatory prison sentence must be imposed enters a
plea of guilty or no contest, the court must, before accepting the plea, determine the
defendant’s understanding that the defendant is subject to a mandatory sentence and
that the mandatory sentence renders the defendant ineligible for probation or community
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control sanctions.’ ” State v. Morgan, 2018-Ohio-319,
104 N.E.3d 941, ¶ 15 (2d Dist.),
quoting State v. Balidbid, 2d Dist. Montgomery No. 24511,
2012-Ohio-1406, ¶ 10.
{¶ 16} In this case, the parties do not dispute that pursuant to R.C.
2903.06(B)(2)(a) and R.C. 2903.08(D)(1), a mandatory prison term was required for
Terrell’s conviction for aggravated vehicular homicide and aggravated vehicular assault.
The parties also do not dispute that the trial court failed to advise Terrell of that fact at the
plea hearing. The parties further do not dispute that the trial court made statements at
the plea hearing incorrectly indicating that Terrell was eligible for community control
sanctions. There is additionally no dispute that the plea form signed by Terrell incorrectly
indicated that prison terms were not mandatory for the aforementioned offenses. The
only issue in dispute is whether the trial court’s misinformation constitutes partial
compliance with Crim.R. 11(C)(2)(a), which would require a showing of prejudice in order
to vacate Terrell’s guilty pleas, or a complete failure to comply with the rule, which would
not require a showing of prejudice.
{¶ 17} In State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, we
recently discussed what constitutes a complete failure to comply with Crim.R. 11(C)(2)(a)
by citing the following excerpt from State v. Rogers,
2020-Ohio-4102,
157 N.E.3d 142,
¶ 14-26 (12th Dist.):
“ ‘[A] trial court's total failure to inform a defendant of a distinct
component of the maximum penalty during a plea colloquy constitutes a
complete failure to comply with Crim.R. 11(C)(2)(a), thereby requiring the
vacation of the defendant’s guilty or no contest plea.’ [State v. Fabian, 12th
Dist. Warren No. CA2019-10-119, 2020-Ohio-3926, ¶ 20]. ‘Or stated
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differently, a complete failure to comply with Crim.R. 11(C)(2)(a)
involves a trial court’s complete omission in advising about a distinct
component of the maximum penalty. By contrast, a trial court’s
mention of a component of the maximum penalty during a plea
colloquy, albeit incomplete or perhaps inaccurate, does not constitute
a complete failure to comply with Crim.R. 11(C)(2)(a).’ ” Id.
(Emphasis added.) Harris at ¶ 22, quoting
Rogers at ¶ 19.
{¶ 18} In an effort to establish that the trial court completely failed to comply with
Crim.R. 11(C)(2)(a), Terrell relies on this court’s decision in Morgan, 2018-Ohio-319,
104
N.E.3d 941. In Morgan, the trial court failed to inform the defendant that he was subject
to a mandatory prison term before the trial court accepted the defendant’s guilty plea to
rape. Id. at ¶ 16. The trial court also failed to inform the defendant that he was ineligible
for community control sanctions in lieu of prison. Id. The plea form signed by the
defendant in Morgan also incorrectly stated that a mandatory prison term was “not
applicable” to his conviction for rape. Id. Under these circumstances, we found that
“the trial court failed to substantially comply with Crim.R. 11(C)(2)(a) and an additional
analysis of prejudice is unnecessary.” Id. at ¶ 17. Therefore, we held in Morgan that
the defendant’s guilty plea was not made knowingly, intelligently, and voluntarily. Id.
{¶ 19} Although Morgan applied the pre-Dangler substantial compliance analysis,
we nevertheless find it instructive on the issue presented herein. In our view, Morgan is
an example of when a trial court completely failed to comply with a component of Crim.R.
11(C)(2)(a), a situation in which no showing of prejudice was required to vacate the
defendant’s guilty plea. That said, we find the present case is distinguishable from
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Morgan. Unlike the present case, in Morgan, “the trial court did not even mention the
possibility or impossibility of community control at the plea hearing.” Id. at ¶ 14. In the
instant case, however, the trial court told Terrell multiple times that community control
sanctions were possible for Terrell’s aggravated vehicular homicide and aggravated
vehicular assault offenses.
{¶ 20} In addition, the trial court specifically advised Terrell that his OVI offense
carried a mandatory term of incarceration while providing no similar advisement for the
other two offenses. By omitting a similar advisement for aggravated vehicular homicide
and aggravated vehicular assault, and by indicating that community control sanctions
were possible for those offenses, the trial court effectively indicated that prison terms were
not mandatory for those offenses when they, in fact, were. This incorrect information
was also provided in the plea form. Therefore, instead of completely omitting
information, the trial court simply provided inaccurate information regarding Terrell’s
eligibility for community control sanctions. For this reason, rather than a complete
failure, we find that the trial court partially failed to comply with a component of Crim.R.
11(C)(2)(a).
{¶ 21} Because the trial court partially failed to comply with Crim.R. 11(C)(2)(a),
Terrell must establish that he was prejudiced by the trial court’s misinformation in order
to have his guilty pleas vacated, i.e., that he would not have pled guilty had he known that
prison was mandatory for the aggravated vehicular homicide and aggravated vehicular
assault offenses. Although Terrell’s primary argument on appeal is that no showing of
prejudice is required to vacate his guilty pleas due to the trial court’s completely failing to
comply with Crim.R.11(C)(2)(a), Terrell also claims that he was prejudiced by the
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misinformation, and we conclude that he would not have pled guilty had he known
community control sanctions were an impossibility.
{¶ 22} “Clearly, the prospect of probation would be a factor weighing heavily in
favor of a plea. That probation is statutorily precluded could affect a person’s decision
to enter a plea of no contest or guilty.” State v. May, 64 Ohio App.3d 456, 460,
581
N.E.2d 1154 (9th Dist.1989). Therefore, “[w]here the trial court erroneously informs an
accused who enters a guilty plea and who is ineligible for probation on the offense to
which he/she is pleading guilty that the accused is eligible for probation and the accused
does not believe otherwise, the plea cannot be viewed as either voluntary or knowing
since ‘the prospect of probation would be a factor weighing heavily in favor of a plea.’ ”
State v. Floyd, 4th Dist. Scioto No. 92CA2102,
1993 WL 415287, *6 (Oct. 13, 1993),
quoting
May at 460. In other words “[t]he prejudice to a defendant is apparent when the
court informs him/her that he/she is eligible for probation although it is actually
unavailable. In such case, a defendant might be coerced into pleading guilty because of
the possibility of probation.”
Id. See also State v. Rand, 10th Dist. Franklin No. 03AP-
745,
2004-Ohio-5838, ¶ 22-23 (finding prejudicial error existed where the trial court
incorrectly advised the defendant at the plea hearing that a prison sentence was not
mandatory for his offense); State v. Smith, 5th Dist. Licking No. 13-CA-44, 2014-Ohio-
2990, ¶ 11-13 (finding prejudicial error existed where the defendant was unaware of the
amount of mandatory prison time and of the fact that he would be ineligible for judicial
release or community control sanctions).
{¶ 23} In an attempt to show that Terrell was not prejudiced by the trial court’s
misinformation, the State directs this court’s attention the Supreme Court of Ohio’s
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decision in State v. Straley, 159 Ohio St.3d 82,
2019-Ohio-5206,
147 N.E.3d 623.
Straley involved an appeal from a decision denying a post-sentence motion to withdraw
a guilty plea. The plea withdrawal motion in Straley was based on the trial court’s
incorrectly stating at the plea hearing that prison sentences for the defendant’s three
counts of sexual battery were not mandatory and that the imposition of community control
sanctions was “legally possible.” Id. at ¶ 3-4. Although the trial court mistakenly told
the defendant that it was “legally possible” for the court to order community control, the
trial court subsequently told the defendant that: “it's not going to happen in this case,”
which the defendant confirmed he understood. Id. at ¶ 4 and ¶ 17. Under these
circumstances, the Supreme Court determined that the trial court “did not wholly fail to
comply with Crim.R. 11” and found that the defendant was not prejudiced by the trial
court’s misinformation. Id. at ¶ 19-22.
{¶ 24} The Supreme Court reached this conclusion, in part, because the
defendant’s motion to withdraw his guilty plea was filed eight years after the defendant
filed a direct appeal in which the defendant never challenged the validity of his guilty plea.
Id. at ¶ 21. The Supreme Court found that “Straley’s eight-year delay in moving to
withdraw his plea … *undercuts his assertion that he would not have pled guilty if he knew
part of his sentence would be mandatory.” Id. The Supreme Court also found that,
because the defendant pled guilty in exchange for an agreed sentence of 35 years and
10 months in prison, the defendant “could not have reasonably expected to serve any
less than [the agreed] sentence.” Id. at ¶ 18.
{¶ 25} Straley is clearly distinguishable from the present case. Unlike Straley, the
present case involves a direct appeal in which Terrell is challenging the validity of his
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guilty plea. In addition, the present case does not involve an agreed sentence to a prison
term. Furthermore, the trial court in Straley notified the defendant at the plea hearing
that he would not be receiving community control sanctions, thereby negating any
possible prejudice arising from the trial court incorrectly stating that community control
sanctions were “legally possible.” In this case, no similar notification was provided by
the trial court at the plea hearing or in the plea form. There is, in fact, nothing in the
record of the plea proceedings to indicate that Terrell knew or should have known that
community control sanctions could not or would not be imposed for his aggravated
vehicular homicide and aggravated vehicular assault offenses.
{¶ 26} Although it is clear that Terrell knew that he was going to be incarcerated
for the OVI offense, as the trial court properly advised Terrell that he could serve up to
180 days in jail with at least three days being mandatory, that term was significantly less
than the prison terms that Terrell faced for aggravated vehicular homicide and aggravated
vehicular assault. Being a first-time offender with no criminal history, Terrell may very
well have based his decision to plead guilty on his belief that community control sanctions
were possible for one or both of those offenses. Therefore, given the foregoing, we find
that prejudice is apparent from the trial court’s misinformation in this case, thereby
requiring this court to conclude that Terrell’s guilty plea was not knowingly, intelligently,
and voluntarily entered.
{¶ 27} Terrell’s first assignment of error is sustained.
Second and Third Assignments of Error
{¶ 28} Under his second assignment of error, Terrell contends that his conviction
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should be reversed based on several allegations of ineffective assistance of trial counsel.
Under his third assignment of error, Terrell challenges the trial court’s decision to impose
maximum, consecutive prison sentences. Our resolution of Terrell’s first assignment of
error renders both of these issues moot since Terrell’s conviction must be reversed as a
result of his guilty plea not having been knowingly, intelligently, and voluntarily entered.
Therefore, for the reasons outlined above, we overrule Terrell’s second and third
assignments of error as moot.
Conclusion
{¶ 29} Having sustained Terrell’s first assignment of error, Terrell’s conviction will
be reversed and the matter will be remanded to the trial court for further proceedings.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Andrew P. Pickering
April F. Campbell
Hon. Douglas M. Rastatter
