[Cite as State v. Driffin,
2021-Ohio-2264.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109870
v. :
JAMES DRIFFIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 1, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-643877-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Warren W. Griffin, Assistant Prosecuting
Attorney, for appellee.
Allison S. Breneman, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant James Driffin (“Driffin”) appeals his convictions
after entering guilty pleas. For the reasons set forth below, we affirm.
Factual and Procedural History
In October 2019, a grand jury returned a 23-count indictment against
Driffin and his two codefendants. For his part, the grand jury indicted Driffin on
three counts of aggravated robbery, with 1-year, 18-month, 3-year, and 54-month
firearm specifications, plus a repeat violent offender specification. In addition, the
grand jury indicted Driffin on one count each of felonious assault, abduction, having
weapons while under disability, and grand theft, with 1-year, 18-month, 3-year, and
54-month firearm specifications attached to each count. At his arraignment, Driffin
pled not guilty to the indictment.
In November 2019, after several pretrial conferences had been
conducted, the trial court referred Driffin to the Court Psychiatric Clinic (“the
Clinic”) for an evaluation to determine his competency to stand trial and his
eligibility for the mental health docket. In January 2020, the Clinic requested that
the trial court send Driffin to the North Coast Behavioral Health Care Center for a
minimum 20-day in-patient competency evaluation. In a report dated
January 28, 2020, the clinician concluded that Driffin was competent to stand trial,
that he was malingering and feigning his deficiency. The parties stipulated to these
findings, and the trial court adopted the clinician’s findings and continued the trial
date to March 30, 2020.
On June 24, 2020, after several continuances, Driffin appeared
virtually, via Zoom video conferencing, because of the COVID-19 Pandemic.
Initially, the hearing was beset by sound difficulties that were later overcome. The
trial court informed Driffin that ten and one-half years would be the minimum
sentence, and that he would impose that sentence if Driffin were to presently enter
a plea. Driffin indicated that he could not do ten and one-half years, offered to serve
eight years, and expressed his desire to go to trial. The trial court set a trial date for
August 17, 2020.
On July 13, 2020, Driffin appeared again, via Zoom video
conferencing, and indicated that he was inclined to enter a guilty plea because he
had been in jail almost a year and had contracted COVID-19. The state of Ohio
detailed a plea offer, focusing on two counts of aggravated robbery, with Driffin
serving ten and one-half years, comprised of the 3-year and 54-month firearm
specifications being served consecutively to each other, and prior to the three years
on the two underlying charges that would be served concurrently.
After the trial court advised Driffin that he would be sentenced under
the Reagan Tokes Law and that he could get a maximum of 15 percent good-time
credit if he behaved in prison, the following exchange took place:
THE DEFENDANT: If I was to cop out and take the ten and a half, I
wouldn’t necessarily be getting ten and a half then. You all would still
charge me first, right?
THE COURT: You would get the ten and a half years. One year credit
already, so you’re looking at another nine and a half, and you have a
potential, if you behave in prison, of knocking off another year and a
half which would take it down to eight years. Potentially, eight years.
THE DEFENDANT: Can you repeat that please, sir?
THE COURT: You could, right now if you take a plea, you got another
nine and a half years. If you behave in prison, they can knock another
year and a half which would reduce it to eight years.
THE DEFENDANT: Okay. But I’ll cop out to two agg robs. He said - -
THE COURT: I would run them concurrent minimum.
THE DEFENDANT: So where do the gun specs come?
THE COURT: Each one has a 54-month gun spec. The other one a 36-
month gun specification. By law those gun specifications have to run
consecutive to each other. So you have 90 months of gun specs.
THE DEFENDANT: So, basically, I have seven and a half years of gun
specs, and basically three years for whatever.
THE COURT: Right. You got that right. Correct.
THE DEFENDANT: So how long - - I - - when we come back?
THE COURT: August 17th we’ll set the trial. Do you want to think about
it for a week and come back?
THE DEFENDANT: Yes, sir.
THE COURT: Let’s set it for a pretrial a week from today.
Tr. 27-29.
On July 29, 2020, pursuant to the aforementioned plea agreement,
Driffin pled guilty, and on August 3, 2020, the trial court imposed the prison
sentence of ten and-a-half years.
Driffin now appeals, assigning the following error for review:
Assignment of Error
Defendant’s plea was not voluntary due to substantial participation by the
trial court in the plea and incorrect information provided.
Law and Analysis
In the sole assignment of error, Driffin argues his guilty plea was not
made knowingly, voluntarily, and intelligently and, thus, should be vacated because
of the trial court’s substantial participation in the plea and in providing incorrect
information.
Due process requires that a defendant’s plea be made knowingly,
intelligently, and voluntarily; otherwise, the defendant’s plea is invalid. State v.
Bishop, 156 Ohio St.3d 156,
2018-Ohio-5132,
124 N.E.3d 766, ¶ 10, citing State v.
Clark,
119 Ohio St.3d 239,
2008-Ohio-3748,
893 N.E.2d 462, ¶ 25; see also State v.
Engle,
74 Ohio St.3d 525, 527,
660 N.E.2d 450 (1996) (“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.”).
Crim.R. 11(C) prescribes the process a trial court must follow before
accepting a guilty plea to a felony. Bishop at ¶ 11, citing State v. Veney,
120 Ohio
St.3d 176,
2008-Ohio-5200,
897 N.E.2d 621, ¶ 8. Under Crim.R. 11(C)(2), a trial
court shall not accept a guilty plea in a felony case without personally addressing the
defendant 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 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.
Id.
The purpose of Crim.R. 11(C) is “‘to convey to the defendant certain
information so that he [or she] can make a voluntary and intelligent decision
whether to plead guilty.’” State v. Duncan, 8th Dist. Cuyahoga No. 109310, 2020-
Ohio-6740, ¶ 11, citing State v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-
Ohio-294, ¶ 12, quoting State v. Ballard, 66 Ohio St.2d 473, 479-480,
423 N.E.2d
115 (1981).
In State v. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765,
164 N.E.3d
286, the Ohio Supreme Court addressed a trial court’s compliance with Crim.R.
11(C) and how best to review a trial court’s plea colloquy to ensure that a defendant’s
plea is knowingly and voluntarily entered. As a general matter, “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),” i.e., that
“the plea would not have otherwise been made.” Id. at ¶ 16. There are, however,
two exceptions to this rule: (1) when the trial court “fails to explain the
constitutional rights [set forth in Crim.R. 11(C)(2)(c)] that a defendant waives by
pleading guilty or no contest,” and (2) “a trial court’s complete failure to comply with
a portion of Crim.R. 11(C).” Id. at ¶ 15. Under either exception, the defendant is not
required to show prejudice.
Importantly, the Supreme Court set forth the following inquiry for
courts to employ in examining a challenge to a plea:
Properly understood, the questions to be answered are simply: (1) has
the trial court complied with the relevant provisions of the rule? (2) if
the trial 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?
Id. at ¶ 17.
At the plea hearing, in the instant matter, the trial court incorrectly
stated that Driffin could get up to 25 percent of earned reduction of minimum prison
term (“ERMPT”) or “good-time” credit under the Reagan Tokes Law, if he behaved
in prison. Driffin now claims, this misstatement by the trial court has rendered his
plea involuntary. As such, Driffin’s implicates Crim.R. 11(C)(2)(a), that requires the
trial court to “[d]etermin[e] that the defendant is making the plea voluntarily, with
understanding of the … maximum penalty involved.”
However, the maximum-penalty advisement is not a constitutional
requirement. Consequently, neither of the two exceptions to the prejudice
requirement apply, and Driffin can prevail only by establishing that he would not
have pled guilty but for the trial court’s misstatement regarding the amount of
good-time credit. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765,
164 N.E.3d 286, at
¶ 22-23. See also, State v. Brown, 8th Dist. Cuyahoga No. 109007, 2020-Ohio-
4474,
158 N.E.3d 972, ¶ 34 (“If the trial judge partially complied, e.g., by mentioning
mandatory postrelease control without explaining it, the plea may be vacated only if
the defendant demonstrates a prejudicial effect.”), quoting Clark,
119 Ohio St.3d
239,
2008-Ohio-3748,
893 N.E.2d 462, at ¶ 32.
Our review reveals that Driffin’s objective was to strike an agreement
whereby he would serve no more than eight years. As previously stated, the trial
court stated that he would impose a sentence of ten and one-half years, and there
was significant discussion that, with the almost one year that Driffin had been in jail,
along with the 15 percent good-time credit, he would reach that objective if he
behaved well. The record also reveals that the trial court stated several times that
the good-time credit was 15 percent or equivalent to a reduction of one and one-half
years of the ten and one-half-year sentence.
In addition, immediately preceding the trial court’s misstatement,
Driffin’s defense counsel reiterated that it would amount to a reduction of one-half
years. The court then misstated the good-time credit percentage, and the discussion
continued as follows:
THE DEFENDANT: Okay. So how much mandatory time do I have or
would I have?
THE COURT: Right now as it stands, you would have nine and-a-half
years left. But that - -
THE DEFENDANT: Mandatory. That would be mandatory?
THE COURT: The mandatory time would be the - -
MR. PAGANO: Seven and-a-half years.
THE COURT: - - seven and-a-half years on the gun specifications and
three and-a-half - - yeah, so that would all be mandatory time. The ten
and-a-half is mandatory.
MR. GRIFFIN: Not taking into account the one year that he’s already
--
THE COURT: But right now, you have nine and-a-half left. Okay?
THE DEFENDANT: But I can get out at eight, though, if I do good?
THE COURT: Yes, yes. That’s true.
Tr. 32-33.
Here, even after the trial court’s misstatement, Driffin understood
that he could get out of prison after serving eight years. As previously stated,
Driffin’s objective was to serve eight years. The plea agreement struck with the state
and the sentence the trial court imposed allowed Driffin to achieve his stated
objective of serving eight years.
On this record, we find that Driffin is unable to establish any
prejudice by the trial court’s misstatement. “Prejudice must be established ‘on the
face of the record.’” Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765,
164 N.E.3d 286, 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. Without any evidence that the plea would
not have otherwise been made, appellant has not established prejudice, and he is
not entitled to have his guilty plea vacated for a failure to comply with Crim.R.
11(C)(2)(a). Brown, 8th Dist. Cuyahoga No. 109007,
2020-Ohio-4474,
158 N.E.3d
972, at ¶ 35.
Although we find that Driffin is unable to establish any prejudice by
the trial court’s misstatement, we recognize that the 15 percent reduction is not
guaranteed and arguably should not be heavily factored, if at all, into plea
negotiations. The parties should be especially mindful in situations, like the present,
involving mandatory sentences, because of the attached firearm specifications,
wherein the potential for ERMPT is not applicable. However, despite the
misstatement regarding the ERMPT, the trial court did advise Driffin of the
mandatory prison terms, and the record demonstrates that Driffin understood that
he had nine and one-half years left upon entering the plea.
Nonetheless, Driffin argues that the trial court’s substantial
participation in the plea rendered it involuntary.
Although the Supreme Court of Ohio discourages the trial court’s
participation in the plea-bargaining process, a plea is not presumptively invalid
merely because of such involvement. State v. Korecky, 8th Dist. Cuyahoga No.
10838, 2020-Ohio-797, ¶ 8, citing State v. Bush, 8th Dist. Cuyahoga No. 106392,
2018-Ohio-4213, ¶ 4, citing State v. Byrd,
63 Ohio St.2d 288, 293,
407 N.E.2d 1384
(1980). Instead, an appellate court reviews the entire record to determine if the trial
court’s conduct could lead a defendant to believe he could not get a fair trial
“‘because the [trial court] thinks that a trial is a futile exercise or that the [trial court]
would be biased against him at trial.’”
Id., citing Bush at ¶ 4, quoting Byrd at 293-
294.
Having reviewed the record, we see nothing to support Driffin’s
assertion and nothing by which we could conclude the trial court placed any undue
pressure on Driffin. To the contrary, the record reveals the trial court continued
Driffin’s trial date several times. Of note, when Driffin indicated that he was inclined
to enter a plea, the trial court asked if he wanted time to consider; Driffin indicated
he needed time, and the trial court scheduled another hearing for a week later.
After a week to consider his choices, Driffin entered a knowing and
voluntary plea. As such, we find nothing in the record to support his assertion.
Accordingly, we overrule the sole assigned error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court to carry this judgment into execution. The
defendant’s convictions having been affirmed; any bail pending is terminated. Case
remanded to the trial 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.
______________________________
EMANUELLA D. GROVES, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
