[Cite as State v. Byas, 2021-Ohio-3924.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 110157 v. :
DEONTAY BYAS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED RELEASED AND JOURNALIZED: November 4, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-639419-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James S. Gallagher, Assistant Prosecuting Attorney, for appellee.
Milton A. Kramer Law Clinic Center, Case Western Reserve University School of Law, Andrew S. Pollis and Joseph Shell, Supervising Attorneys, Caroline Ford, Nadia Haile, and David Codispoti, Certified Legal Interns, for appellant.
FRANK D. CELEBREZZE, JR., P.J.:
Defendant-appellant Deonte Byas brings this appeal challenging his
convictions for drug trafficking, drug possession, and possessing criminal tools. Byas argues that the trial court erred in coercing an involuntary no-contest plea and
that the trial court failed to comply with Crim.R. 11(C)(2). After a thorough review
of the record and law, this court vacates Byas’s plea and sentence, and remands the
matter for further proceedings consistent with this opinion.
I. Factual and Procedural History
On April 22, 2019, Cleveland police officers were patrolling Lorain
Avenue for prostitution and drug-related activity. Officers observed a female enter
a vehicle in the area they were patrolling. The vehicle was also involved in multiple
suspected drug transactions. As a result, the officers initiated a traffic stop.
Byas was driving the vehicle that the officers pulled over. The female
passenger was in the back seat, and she informed the officers that Byas threw a scale
and a bag of heroin into the back seat. Officers also recovered a bag containing
cocaine in the vehicle’s center console. Byas was arrested for his involvement in the
drug-related activity.
In Cuyahoga C.P. No. CR-19-639419-A (hereinafter “CR-19-639419” or
“new case”), Byas was charged in a five-count indictment on June 24, 2019, with
(1) drug trafficking (heroin), (2) drug possession (heroin), (3) drug trafficking
(cocaine), (4) drug possession (cocaine), and (5) possessing criminal tools. All five
counts contained forfeiture specifications.
Byas was arraigned on September 27, 2019. He pled not guilty to the
indictment. The parties appeared in court on December 3, 2019, for a scheduled
pretrial hearing in the new case. During the December 3, 2019 hearing, the trial
court, not the prosecution, offered a “resolution” or “a plea” to Byas under which
Byas would receive an aggregate two-year prison sentence for the drug-related
charges in the new case and Byas’s community control violations,1 and the trial court
would waive fines, fees, and costs. (Tr. 3-4.) The trial court explained the possible
penalties that Byas was facing on the drug-related charges in the new case and the
penalties he would receive for violating community control.
Byas inquired whether he would be eligible for judicial release if he
accepted the trial court’s resolution. The trial court advised Byas that he would not
be eligible for judicial release and that he would “do [his] time.”
The trial court confirmed that Byas did not have any other questions.
Thereafter, the trial court asked Byas whether he wanted to “enter a plea on the new
case,” or whether he wanted “to go forward with the probation violation?” (Tr. 6.)
One of Byas’s defense attorneys requested an opportunity to confer with Byas, and
the trial court granted counsel’s request.
Byas’s originally assigned attorney advised the trial court that Byas no
longer wanted him to represent him. Following this advisement, the trial court
stated:
1 Although the trial court indicated that it placed Byas on community control in 2017 in four separate criminal cases, the trial court’s online docket reflects that Byas allegedly violated community control in the following six criminal cases: (1) CR-17- 623241-A, (2) CR-17-620712-A, (3) CR-17-616251-A, (4) CR-17-615823-A, (5) CR-17- 615790-A, and (6) CR-17-615615-A. The Court: * * * Mr. Byas, let me explain something to you, and I have been considerate to your family. I’ve put more people on probation than any other judge in the State of Ohio.
***
The county jail is in crisis. I cannot permit people to just languish in the county jail. You either are going to resolve [the new case] this case today with two years, or you’re going to be, in two minutes, a probation violator, and you’re going to be sent down for three years on the first probation violation.
This has nothing to do with [Byas’s originally assigned counsel]. And your disrespectful behavior to [originally assigned counsel] is offensive to my Court.
I have treated you with decency and respect. For you to pretend that this is about [originally assigned counsel], who is one of the finest attorneys in Cuyahoga County, is disgraceful. It’s flipping the script and blaming somebody else. You’re not going to get a new attorney. But what you’re going to get is a consecutive period of incarceration if you’re probation violated, and then eventually convicted of the new case; okay?
Do not come into my courtroom and attempt to blame your attorney or the system. It’s not about us. We’re here because of your behavior.
Now, you have reached the very limit of my patience. I don’t have to have this conversation with you. I, right now, could sentence you to six years in a state penal institution and recuse myself from the new case, and send it to a different judge who could give you an additional six years.
(Tr. 8-9.)
Immediately following the trial court’s statement, Byas stated, without
being prompted, “I plead guilty, your Honor.” (Emphasis added.) (Tr. 9.) However,
Byas appeared to opine a two- or three-year sentence was not warranted because he
did not “do anything violent to anyone, or hurt anyone[.]” (Tr. 10.) The trial court explained that Byas did not have to plead guilty and that
it did not make any difference to the court how Byas pled. Once again, the trial court
asked Byas how he wanted to proceed. Byas indicated, again, that he wanted to
“plead guilty.” (Emphasis added.) (Tr. 11.)
At the trial court’s request, Byas’s originally assigned attorney orally
moved to withdraw from the representation during plea discussions. The trial court
permitted Byas to proceed with a new attorney that was representing Byas in
relation to a potential federal criminal matter.
Byas’s new attorney confirmed that Byas “does want to take the two
years.” (Tr. 11.) However, counsel expressed concern about the potential charges
Byas may face in federal court. Following a discussion between the trial court and
Byas’s new attorney about the potential federal charges, the trial court inquired
again whether Byas wanted to enter a plea. Byas responded in the affirmative,
“[y]es, sir.” (Tr. 14.)
The trial court confirmed with the prosecutor that the case file had not
“been marked,” such that Byas “can plead no contest to the indictment[.]”
(Emphasis added.) (Tr. 14.) Following these plea discussions between the trial
court, Byas, defense counsel, and the prosecutor, the trial court went “on the record”
and proceeded to formally take Byas’s plea.
The trial court explained Byas’s constitutional rights to him. The trial
court advised Byas that he does not “have to plead guilty” and that he can try the
case to a jury. (Emphasis added.) (Tr. 17.) The trial court explained the constitutional rights Byas would have if he elected to try the case. The trial court
stated that Byas would be “waiving all the rights that I just said.” (Tr. 20.)
The trial court explained that even if Byas was found not guilty on the
drug-related charges in the new case, he still faced the probation violations, which
only required a finding of probable cause rather than proof beyond a reasonable
doubt. The trial court advised Byas of the potential penalty, a prison term of two
years, that he would receive under the plea bargain proposed by the trial court. The
trial court advised Byas of the penalties he faced on the fourth- and fifth-degree
felonies charged in the new case.
Following the court’s advisements, the court asked whether Byas had
any questions. Byas indicated that he did not. The trial court inquired whether Byas
would be entering the plea “freely, knowledgeably, and voluntarily[.]” (Tr. 21.) Byas
responded affirmatively. Other than what was placed on the record during the
December 3, 2019 hearing, Byas confirmed that no threats or promises had been
made to him. Byas confirmed that he was satisfied with the representation provided
by his attorney.
Following the Crim.R. 11 colloquy, the trial court formally took Byas’s
plea: “How do you plead? You’re going to plead no contest. Remember that. How
do you plead to [Counts 1-5 in CR-19-639419]?” (Emphasis added.) (Tr. 22.) Byas
pled no contest to all five counts. (Tr. 22.)
The prosecutor placed the factual basis for the charges to which Byas
pled no contest on the record. (Tr. 23.) Based on the prosecutor’s factual rendition, the trial court found Byas guilty on all five counts. The trial court proceeded
immediately to sentencing.
The trial court imposed a prison term of two years: one year on
Count 1, one year on Count 2, one year on Count 3, one year on Count 4, and one
year on Count 5. The trial court ordered Counts 1 and 3 to run consecutively to one
another and concurrently with Counts 2, 4, and 5. The trial court failed to
incorporate its consecutive-sentence findings into the December 9, 2019 sentencing
journal entry.
On December 14, 2020, Byas, acting pro se, filed a notice of appeal and
a motion for a delayed appeal. Byas argued that he was never advised that he had a
right to appeal. This court granted Byas’s motion for delayed appeal on January 11,
2021, and appointed counsel to represent appellant in this appeal.
Byas assigns two errors for review:
I. The trial court erred in coercing an involuntary plea.
II. The trial court erred in accepting a plea without complying with Crim.R. 11(C)(2).
II. Law and Analysis
A. No Contest Plea
Byas’s assignments of error both pertain to his no contest plea.
1. Coercion
In his first assignment of error, Byas argues that the trial court coerced
him into pleading no contest and that the plea was not entered voluntarily.
Specifically, Byas contends, [t]he trial judge coerced [Byas] into pleading no contest by creating the plea offer, pressuring [Byas] into accepting it immediately, and repeatedly interjecting comments reflecting bias against [Byas]. The bias was reflected in suggestions that the judge had already determined that [Byas] was guilty of both the new charges [in CR-19-639419] and probation violations. It was also reflected in comments about [Byas’s] demographic. These tactics resulted in an involuntary plea.
Appellant’s brief at 12.
A defendant’s plea must be made knowingly, intelligently, and
voluntarily. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). The
enforcement of a plea that is not made knowingly, voluntarily, and intelligently is
unconstitutional under both the United States and Ohio Constitutions. Id.
In regards to a trial court’s participation in plea negotiations, the Ohio
Supreme Court has cautioned that “the judge’s position in the criminal justice
system presents a great potential for coerced guilty pleas and can easily compromise
the impartial position a trial judge should assume.” State v. Byrd, 63 Ohio St.2d
288, 293, 407 N.E.2d 1384 (1980). Although judicial participation is strongly
discouraged, it does not render a plea per se involuntary. Rather, the ultimate
inquiry is whether the trial court’s active conduct could have led the defendant to
believe he or she could not get a fair trial, including a fair sentence after trial, and
whether the judicial participation undermined the voluntariness of the plea. State
v. Sawyer, 183 Ohio App.3d 65, 2009-Ohio-3097, 915 N.E.2d 715, ¶ 54 (1st Dist.),
citing Byrd at 293. In determining the voluntariness of a defendant’s plea, this court
considers the record in its entirety. State v. Jabbaar, 2013-Ohio-1655, 991 N.E.2d
290, ¶ 29 (8th Dist.). In the instant matter, Byas directs this court to State v. Heard, 2017-
Ohio-8310, 87 N.E.3d 245 (8th Dist.),2 in which this court held that the defendant
did not enter a voluntary plea due to the trial judge’s coercion in the plea bargaining
process. The state argues that Heard is distinguishable because the trial court did
not force Byas to enter the plea, and the trial court specifically informed Byas that
he did not need to enter a plea.
In Heard, the parties appeared in court for trial. Defense counsel
requested a continuance, explaining that the defendant “‘denied responsibility and
claimed his innocence to this since the time [counsel] met him,’ and that only half
an hour earlier, had told counsel he had been ‘covering up for the real shooter’ and
then given counsel the shooter’s name.” Id. at ¶ 4. The state objected to defense
counsel’s request for a continuance. The trial court opined that the new information
about the shooter was just a “ploy to get another continuance.” The trial court
informed the defendant that “if we don’t plead the case, we’re going to trial right
now.” Id. at ¶ 6.
The trial court advised the defendant that the court would likely reject
any plea authorized by the state because “I think if you plead out to a case like this,
you need to do somewhere between 13 and 15 years in the state penal institution.”
Id. at ¶ 7. Furthermore, the trial court explained that if the defendant was convicted
at trial, he would receive “at least double, perhaps triple or more time[.]” Id. at ¶ 8.
2 The appeal before this court and Heard involve the same trial judge. The trial court offered his own plea deal to the defendant:
What I’m suggesting is that you can plead no contest to the indictment and the court will sentence you. My only promise is I won’t consecutively sentence you. If you no contest the indictment, I will sentence you on a concurrent period of incarceration, but you’re looking at approximately 14 years in the state penal institution, 3 for the gun and 11 years on the underlying offense, and I would run the other time concurrent.
If you take the case to trial and are convicted, you will do multiples of 14 years, because if you’re convicted of these charges, that’s what you deserve. You deserve to spend what could be the rest of your life in the state penal institution.
Heard, 2017-Ohio-8310, 87 N.E.3d 245, at ¶ 9.
The trial court reminded the defendant that the matter would not be
continued and that trial would commence immediately if the defendant did not
enter a plea. Then, the trial court asked the defendant what he wanted to do.
The defendant asked whether he would be sentenced to more than ten
years if he pled guilty right then. The trial court stated that the defendant would be
sentenced to 14 years in prison. The defendant advised the trial court that he wanted
to go to trial.
After more discussion, the defendant asked the trial court whether, if
he pled guilty, he could see his daughter before going to prison. The trial court stated
that the defendant could not see his daughter.
The trial court asked the defendant again how he wanted to proceed.
The defendant responded, “I didn’t do it[.]” Heard, 2017-Ohio-8310, 87 N.E.3d 245,
at ¶ 13. The trial court asserted, “‘we’re either going to bring a jury up now and try
this case or you’re going to enter a plea.’ After a brief pause, the judge stated, ‘All right, let’s bring the jury up.’ He then told [the defendant], ‘the jury is on its way. If
they walk into this room, my deal with you is off.’” Id. At this point, the defendant
stated he would take the deal.
On appeal, the defendant argued that his plea was not made
voluntarily and that it was coerced by the trial judge. This court vacated the
defendant’s plea, concluding that it was not made voluntarily. This court explained
that (1) the defendant could have believed, based on the judge’s participation in the
plea process, that he could not get a fair trial or fair sentence after trial; (2) the judge
did more than actively participate in the plea process, the judge created and
presented the plea offer; (3) the state did not participate in the plea process at all,
and the plea offer came only from the judge; (4) although the judge told the
defendant he would get a fair trial, the judge’s comments clearly conveyed to the
defendant that the judge had already decided the defendant was guilty; and
(5) based on the judge’s comments about sentencing, the defendant could only have
concluded that he would not receive a fair sentence if he was convicted at trial. This
court also noted that the judge never gave the defendant time to adequately consider
the plea offer. Although the judge permitted the defendant to speak with his mother,
the defendant did not have an opportunity to confer with his attorney about the plea
offer. When the defendant briefly hesitated about how he wanted to proceed, the
judge told the defendant “the jury is on its way. If they walk into this room, my deal
with you is off.” Id. at ¶ 22. This court held that the trial court’s “ultimatum can
only be considered coercion.” Id. In the instant matter, after reviewing the record, we find that Byas’s
plea was not voluntarily entered. Here, like Heard, the plea offer came from the trial
court, not the prosecutor. The state concedes that the trial court “participated in
plea negotiation[.]” The record reflects that the state did not participate in the plea
process at all, except to confirm that the case file had not been marked, that Byas
could plead no contest to the indictment, and to indicate that the state had been
informed that Byas “intends to plead to the indictment[.]” (Tr. 14-15.)
Here, the trial court offered an ultimatum to Byas with respect to the
new case — accept the trial court’s plea offer and resolve the new case today, or the
trial court would find him in violation of his community control and impose a prison
sentence of three or six years on the violations. Like Heard, 2017-Ohio-8310, 87
N.E.3d 245, the trial court’s ultimatum in this case can only be considered coercion.
The alleged community control violations were entirely unrelated to
the drug-related charges in the new case. Byas appeared in court on December 3,
2019, for a pretrial hearing in the new case. During this pretrial hearing, the trial
court indicated that if Byas did not accept the court’s proposed resolution, it would
proceed immediately with a violation hearing and the imposition of sentence on the
alleged community control violations.
Byas did not receive advanced notice that he would be facing a hearing
on the alleged community control violations. During oral arguments, the state
conceded that Byas was not given adequate notice prior to the December 3, 2019
hearing regarding the alleged community control violations. The trial court’s coercion — accept the trial court’s plea in the new case or be sentenced to prison that
day on the unrelated violations — left Byas without a meaningful opportunity to
enter a knowing, intelligent, and voluntary plea in the new case.
Byas could have believed that he would not have received a fair
probation violation hearing or a fair sentence on the violations if he did not accept
the trial court’s plea in the new case. Although the trial court suggested that it still
had to make a determination regarding whether there was probable cause that Byas
violated probation, the judge’s comments during plea discussions clearly conveyed
that the judge had already determined that Byas violated probation. The coercion
was compounded by the trial court’s assertion that “picking up the new case while
on probation to the Court is a, per se, probation violation,” and that “[e]ven if
somehow [Byas was found not guilty] on the new case, [he still is] a probation
violater on the other four cases.” (Tr. 5.) This statement is not accurate as a matter
of law.
Courts have repeatedly determined that merely being charged with a crime is not sufficient to establish a probation violation. See, e.g., Toledo v. Nova, 6th Dist. Lucas No. L-12-1229, 2013-Ohio-1094; State v. Wagner, 179 Ohio App.3d 165, 2008-Ohio-5765, 900 N.E.2d 1089, ¶ 42 (2d Dist.) (stating that the fact that a criminal charge was filed, by itself, is not sufficient to prove that the defendant committed the criminal act); State v. Craig, 130 Ohio App.3d 639, 642, 720 N.E.2d 966 (1st Dist.1998) (stating that the mere fact of an arrest cannot constitute a violation of community control sanctions); State v. Kidwell, 10th Dist. Franklin No. 94APA06-883, 1995 Ohio App. LEXIS 564 (Feb. 16, 1995) (revocation of probation predicated solely upon arrest, without additional evidence, is reversible error); State v. Moine, 72 Ohio App.3d 584, 589, 595 N.E.2d 524 (9th Dist.1991) (stating that an arrest does not constitute a violation of probation). Rather, the violation must be based on some inquiry into the facts supporting the charge, or some examination into the evidence underlying the offender’s arrest. Toledo at ¶ 7, citing Craig at 642.
State v. Washington, 8th Dist. Cuyahoga Nos. 101157 and 101170, 2015-Ohio-305,
¶ 36.
The trial court advised Byas, “[y]ou either are going to resolve this case
[CR-19-639419] today with two years, or you’re going to be, in two minutes, a
probation violator, and you’re going to be sent down for three years on the first
probation violation.” (Emphasis added.) (Tr. 8.) This statement, made during plea
discussions in the new case, and before there was any factual inquiry into the new
charges or any evidence on the new charges was presented, indicated that the trial
court had already made up its mind regarding the probation violation. Accordingly,
any hearing on the alleged probation violations would be perfunctory at best. See
State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, ¶ 9, citing Gagnon
v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and State v.
Miller, 42 Ohio St.2d 102, 326 N.E.2d 259 (1975), syllabus (because a trial court’s
judgment revoking community control can result in a serious loss of liberty, a
defendant-probationer “must be accorded due process at the revocation hearing”);
State v. Cox, 8th Dist. Cuyahoga No. 105932, 2018-Ohio-748, ¶ 15, citing State v.
Roberts, 2017-Ohio-481, 84 N.E.3d 339, ¶ 18 (2d Dist.), and Gagnon (a defendant
is entitled to a preliminary hearing to determine whether probable cause exists to
believe that he or she violated probation, and due process requires a subsequent
revocation hearing to determine whether probation should, in fact, be revoked); State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126, ¶ 26, citing Gagnon
at 786 (“[Gagnon] required the trial court to provide [the defendant]: 1) written
notice of the claimed violations; 2) disclosure of evidence against him [or her];
3) opportunity to be heard and to present witnesses and documentary evidence; 4)
the right to confront and cross-examine adverse witnesses; 5) a ‘neutral and
detached’ hearing body; and 6) a written statement by the factfinder of the evidence
relied upon and reasons for revocation.”).
The trial court again advised Byas that “I, right now, could sentence
you to six years in a state penal institution[.]” (Emphasis added.) (Tr. 9.) Although
Byas had an opportunity to confer with counsel during plea discussions, it is
questionable whether Byas had enough time to adequately consider the offer based
on the trial court’s statements about sending Byas to prison “in two minutes” and
“right now.” See Heard, 2017-Ohio-8310, 87 N.E.3d 245, at ¶ 20.
Based on the trial court’s statements during plea discussions, Byas
could have believed that he would not have received a fair trial or a fair sentence
after trial in the new case. The trial court advised Byas, before any evidence was
presented on the charges in the new case, that “[e]ven if somehow you get a not
guilty on the new case, you still are a probation violater on the other four cases.”
(Tr. 5.) (Emphasis added.) The trial court’s statement implied that it was unlikely
that Byas would be found not guilty at trial on the new case.
The trial court stated that if Byas was found to be in violation of
probation and also convicted in the new case, the sentences would be run consecutively: “[W]hat you’re going to get is a consecutive period of incarceration if
you’re probation violated, and then eventually convicted of the new case; okay?”
(Tr. 9.) The trial court’s statements indicate that the judge had predetermined the
imposition of consecutive sentences without considering the consecutive-sentence
findings set forth in R.C. 2929.14(C)(4).
For all of the foregoing reasons, we find that Byas’s plea was not made
voluntarily. See Heard, 2017-Ohio-8310, 87 N.E.3d 245, at ¶ 23. Byas’s plea is void
and must be vacated.
Byas’s first assignment of error is sustained.
2. Effect of No Contest Plea
In his second assignment of error, Byas argues that the trial court
erred in accepting his no contest plea because the trial court failed to comply with
Crim.R. 11(C)(2).
Pursuant to Crim.R. 11(C)(2), a trial court shall not accept a guilty or
no contest plea in a felony case 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 involved * * *.
(b) Informing the defendant of and determining that the defendant understands the effects of the plea * * *, 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.
The purpose of Crim.R. 11(C) is to convey specific information to a
defendant so that he or she can make a voluntary and intelligent decision regarding
whether to enter a guilty or no contest plea. State v. Schmick, 8th Dist. Cuyahoga
No. 95210, 2011-Ohio-2263, ¶ 5. This court reviews the issue of whether a trial court
accepted a plea in conformance with Crim.R. 11(C) under a de novo standard of
review. State v. Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 22.
“When a criminal defendant seeks to have his [or her] conviction
reversed on appeal, the traditional rule is that he [or she] must establish that an
error occurred in the trial-court proceedings and that he [or she] was prejudiced by
that error.” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286,
¶ 13. “The test for prejudice is ‘whether the plea would have otherwise been made.’”
Id. at ¶ 16, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). A
defendant must establish prejudice “‘on the face of the record’” and not solely by
virtue of challenging the plea on appeal. Id. at ¶ 24, quoting Hayward v. Summa
Health Sys., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26.
The traditional rule is subject to two limited exceptions. Id. at ¶ 14-16.
Under these two exceptions, a defendant is not required to demonstrate prejudice
(1) when a 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) when a
trial court has completely failed to comply with a portion of Crim.R. 11(C). Id. at ¶ 14-15, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
¶ 31; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
“Aside from these two exceptions, the traditional rule continues to apply: a
defendant is not entitled to have his [or her] plea vacated unless he [or she]
demonstrates he [or she] was prejudiced by a failure of the trial court to comply with
the provisions of Crim.R. 11(C).” Dangler at ¶ 16, citing Nero at 108.
This court no longer focuses on strict, substantial, or partial
compliance when reviewing a trial court’s compliance with Crim.R. 11. State v.
Kauffman, 2021-Ohio-1584, 170 N.E.3d 952, ¶ 12 (8th Dist.). In Dangler, the Ohio
Supreme Court recently recognized that prior caselaw had “muddled [the] analysis
by suggesting different tiers of compliance with the rule” and “those formulations
have served only to unduly complicate what should be a fairly straightforward
inquiry.” Id. at ¶ 17. Dangler identified the following three questions to be
answered:
(1) has the trial court complied with the relevant provision of the rule? (2) if the 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.
In the instant matter, in challenging the validity of his plea, Byas
contends that the trial court did not explain the effect of a no contest plea, as
required by Crim.R. 11(C)(2), and as a result, completely failed to comply with
Crim.R. 11(C)(2). Crim.R. 11(B)(2) governs the specific instruction that a trial court
must provide a defendant when informing the defendant of the effect of a no contest
plea. E. Cleveland v. Brown, 8th Dist. Cuyahoga No. 97878, 2012-Ohio-4722, ¶ 9.
Crim.R. 11(B)(2) provides, “[t]he 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[s].”
Accordingly, before accepting Byas’s no contest plea, the trial court was required to
advise Byas — either orally or in writing — of the effect of his plea, as set forth in
Crim.R. 11(B)(2). State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d
677, ¶ 23 (“[F]or a no contest plea, a defendant must be informed that the plea of no
contest is not an admission of guilt but is an admission of the truth of the facts
alleged in the complaint, and that the plea or admission shall not be used against the
defendant in any subsequent civil or criminal proceeding.”).
In the instant matter, the trial court completely failed to comply with
Crim.R. 11(C). The record reflects that the trial court gave no explanation
whatsoever to Byas regarding the effect of his no contest plea. During plea
discussions, Byas appeared to be under the impression that he would be pleading
guilty, rather than no contest: “I plead guilty, your Honor.” (Tr. 9.) The first time
a plea of no contest was mentioned was during a discussion between the trial court
and the prosecutor, during which the trial court confirmed that the case file had not
been “marked.” Although Byas previously expressed a desire to plead guilty, the trial court told Byas to plead no contest when formally accepting Byas’s plea on the
record: “How do you plead? You’re going to plead no contest. Remember that.”
(Tr. 22.) The trial court did not advise Byas of the effect of his no contest plea —
either before or after instructing Byas to plead no contest.
“Without any explanation of the effect of his no contest plea, [the
defendant’s] plea was not knowingly, voluntarily, and intelligently made.” Heard,
2017-Ohio-8310, 87 N.E.3d 245, at ¶ 31. In this case, like Heard, the record reflects
that the trial court failed to provide any explanation of the effect of Byas’s no contest
plea. Furthermore, Byas appeared to be confused as to whether he was pleading
guilty or no contest, and Byas only pled no contest after the trial court instructed
him to do so when Byas was formally tendering his plea. (Tr. 22.) Because the trial
court completely failed to comply with Crim.R. 11(C), Byas was not required to
demonstrate that he was prejudiced by the trial court’s error. Dangler, 162 Ohio
St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 15; State v. Reyes, 8th Dist. Cuyahoga
No. 110126, 2021-Ohio-3599, ¶ 16.
For all of the foregoing reasons, Byas’s second assignment of error is
sustained. Because the trial court failed to provide any explanation to Byas
regarding the effect of his no contest plea, the trial court completely failed to comply
with Crim.R. 11(C). Without an explanation of the effect of his no contest plea,
Byas’s plea was not knowingly, voluntarily, and intelligently made. As a result,
Byas’s plea must be vacated.
Byas’s second assignment of error is sustained. III. Conclusion
After thoroughly reviewing the record, we find that Byas’s no contest
plea was not knowingly, voluntarily, and intelligently made. Accordingly, Byas’s no
contest plea must be vacated.
This cause is vacated and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and LISA B. FORBES, J., CONCUR