[Cite as State v. Dorsey, 2016-Ohio-740.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1174 L-15-1175 Appellee L-15-1176 L-15-1177 v. Trial Court Nos. CR0201301949 Joseph Dorsey, Jr. CR0201403026 CR0201403045 Appellant CR0201501104
DECISION AND JUDGMENT
Decided: February 26, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Joseph J. Urenovitch, for appellant.
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Joseph Dorsey, appeals the judgment of the Lucas County Court
of Common Pleas, sentencing him to 33 months in prison following its acceptance of appellant’s no contest plea to one count of receiving stolen property, one count of attempt
to commit receiving stolen property, and one count of grand theft of a motor vehicle.
Appellant was also ordered to serve an additional 900 days in prison for violating the
terms of his postrelease control. For the reasons that follow, we affirm.
A. Facts and Procedural Background
{¶ 2} This consolidated appeal stems from several theft offenses committed by
appellant while he was on postrelease control from a 2013 conviction for failure to
comply with an order or signal of a police officer. Beginning in November 2014, certain
local auto dealerships began noticing that temporary and permanent license plates had
gone missing. On November 20, 2014, a stolen vehicle driven by appellant was stopped
by law enforcement officers. Thereafter, on December 12, 2014, appellant was pulled
over by police and found to be in possession of stolen license plates that belonged to one
of the local dealerships, Dixie Auto Leasing, Inc. One week later, appellant was found in
possession of an automobile and several license plates that were reported stolen by
another dealership, Max Auto World.
{¶ 3} As a result of these incidents, appellant was indicted in three separate cases.
In total, appellant was charged with two counts of receiving stolen property in violation
of R.C. 2913.51, felonies of the fourth degree, two counts of grand theft of a motor
vehicle in violation of R.C. 2913.02(A)(1) and (B)(5), felonies of the fourth degree, one
count of breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth
2. degree, and two counts of receiving stolen property in violation of R.C. 2913.51 and
2913.71(C), felonies of the fifth degree.
{¶ 4} Appellant initially entered pleas of not guilty to all charges, and the matter
proceeded through pretrial proceedings and plea negotiations. On May 13, 2015,
appellant appeared before the trial court for a plea hearing. At the plea hearing, appellant
agreed to enter pleas of no contest to one count of grand theft of a motor vehicle in
violation of R.C. 2913.02(A)(1) and (B)(5), a felony of the fourth degree, one count of
attempt to commit receiving stolen property in violation of R.C. 2923.02 and 2913.51, a
felony of the fifth degree, and one count of receiving stolen property in violation of R.C.
2913.51 and 2913.71, a felony of the fifth degree. In exchange for appellant’s no contest
pleas, the state agreed to dismiss the remaining charges. After a thorough Crim.R. 11
colloquy, the trial court accepted appellant’s no contest pleas and found him guilty of the
charges to which he pleaded no contest. The trial court continued the matter for
sentencing pending completion of a presentence investigation report.
{¶ 5} Two weeks later, appellant’s sentencing hearing was held, at which time the
trial court imposed a sentence of 11 months on each of the three counts. The trial court
ordered the sentences be served consecutively, for a total prison term of 33 months.
Additionally, the trial court found that appellant was in violation of the terms of his
postrelease control. Consequently, appellant received an additional consecutive prison
sentence of 900 days.
3. B. Assignment of Error
{¶ 6} Appellant has now timely appealed his convictions, assigning the following
error for our review:
Appellant’s no-contest pleas were not knowingly, intelligently, and
voluntarily [entered] because the trial court failed to inform appellant of the
maximum penalty for each plea.
II. Analysis
{¶ 7} In appellant’s sole assignment of error, he argues that his pleas were not
knowingly, intelligently, and voluntarily entered because the trial court did not inform
him of the maximum prison sentence applicable to the charges to which he pleaded.
Appellant cites Crim.R. 11(C) as support for his argument.
{¶ 8} Crim.R. 11(C) provides, in relevant part:
(C) Pleas of guilty and no contest in felony cases
***
(2) 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 involved, and if applicable, that the defendant is not eligible for
4. probation or for the imposition of community control sanctions at the
sentencing hearing.
{¶ 9} Appellant acknowledges that his right to be informed of the maximum
penalty under Crim.R. 11(C)(2)(a) is a non-constitutional right. See State v. Abuhashish,
6th Dist. Wood No. WD-07-048, 2008-Ohio-3849, ¶ 33 (stating that “informing the
defendant of the maximum penalty [he] faced because of the plea he would enter was a
non-constitutional right”). The Supreme Court of Ohio has held that courts need only
substantially comply with the non-constitutional notifications required by Crim.R.
11(C)(2)(a). State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977).
“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, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Furthermore, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently, and
voluntarily made must show a prejudicial effect.” Id. “The test is whether the plea
would have otherwise been made.” Id. We have previously stated that “[t]he key is
whether the defendant had actual notice of the maximum sentence involved.”
Abuhashish at ¶ 35, citing State v. Reed, 6th Dist. Lucas No. L-06-1130, 2007-Ohio-
4087, ¶ 26, and State v. Bach, 6th Dist. No. L-04-1326, 2005-Ohio-4173, ¶ 14.
{¶ 10} In this case, it is clear from the record that appellant had actual notice of
the maximum sentence involved. While appellant is correct in his assertion that the trial
court did not personally inform him of the maximum sentence at the plea hearing, the
5. hearing transcript demonstrates that appellant was provided with a copy of his written
plea agreement, which clearly states the maximum prison sentence for each of the three
counts to which appellant pleaded no contest. Prior to accepting appellant’s pleas, the
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[Cite as State v. Dorsey, 2016-Ohio-740.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1174 L-15-1175 Appellee L-15-1176 L-15-1177 v. Trial Court Nos. CR0201301949 Joseph Dorsey, Jr. CR0201403026 CR0201403045 Appellant CR0201501104
DECISION AND JUDGMENT
Decided: February 26, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Joseph J. Urenovitch, for appellant.
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Joseph Dorsey, appeals the judgment of the Lucas County Court
of Common Pleas, sentencing him to 33 months in prison following its acceptance of appellant’s no contest plea to one count of receiving stolen property, one count of attempt
to commit receiving stolen property, and one count of grand theft of a motor vehicle.
Appellant was also ordered to serve an additional 900 days in prison for violating the
terms of his postrelease control. For the reasons that follow, we affirm.
A. Facts and Procedural Background
{¶ 2} This consolidated appeal stems from several theft offenses committed by
appellant while he was on postrelease control from a 2013 conviction for failure to
comply with an order or signal of a police officer. Beginning in November 2014, certain
local auto dealerships began noticing that temporary and permanent license plates had
gone missing. On November 20, 2014, a stolen vehicle driven by appellant was stopped
by law enforcement officers. Thereafter, on December 12, 2014, appellant was pulled
over by police and found to be in possession of stolen license plates that belonged to one
of the local dealerships, Dixie Auto Leasing, Inc. One week later, appellant was found in
possession of an automobile and several license plates that were reported stolen by
another dealership, Max Auto World.
{¶ 3} As a result of these incidents, appellant was indicted in three separate cases.
In total, appellant was charged with two counts of receiving stolen property in violation
of R.C. 2913.51, felonies of the fourth degree, two counts of grand theft of a motor
vehicle in violation of R.C. 2913.02(A)(1) and (B)(5), felonies of the fourth degree, one
count of breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth
2. degree, and two counts of receiving stolen property in violation of R.C. 2913.51 and
2913.71(C), felonies of the fifth degree.
{¶ 4} Appellant initially entered pleas of not guilty to all charges, and the matter
proceeded through pretrial proceedings and plea negotiations. On May 13, 2015,
appellant appeared before the trial court for a plea hearing. At the plea hearing, appellant
agreed to enter pleas of no contest to one count of grand theft of a motor vehicle in
violation of R.C. 2913.02(A)(1) and (B)(5), a felony of the fourth degree, one count of
attempt to commit receiving stolen property in violation of R.C. 2923.02 and 2913.51, a
felony of the fifth degree, and one count of receiving stolen property in violation of R.C.
2913.51 and 2913.71, a felony of the fifth degree. In exchange for appellant’s no contest
pleas, the state agreed to dismiss the remaining charges. After a thorough Crim.R. 11
colloquy, the trial court accepted appellant’s no contest pleas and found him guilty of the
charges to which he pleaded no contest. The trial court continued the matter for
sentencing pending completion of a presentence investigation report.
{¶ 5} Two weeks later, appellant’s sentencing hearing was held, at which time the
trial court imposed a sentence of 11 months on each of the three counts. The trial court
ordered the sentences be served consecutively, for a total prison term of 33 months.
Additionally, the trial court found that appellant was in violation of the terms of his
postrelease control. Consequently, appellant received an additional consecutive prison
sentence of 900 days.
3. B. Assignment of Error
{¶ 6} Appellant has now timely appealed his convictions, assigning the following
error for our review:
Appellant’s no-contest pleas were not knowingly, intelligently, and
voluntarily [entered] because the trial court failed to inform appellant of the
maximum penalty for each plea.
II. Analysis
{¶ 7} In appellant’s sole assignment of error, he argues that his pleas were not
knowingly, intelligently, and voluntarily entered because the trial court did not inform
him of the maximum prison sentence applicable to the charges to which he pleaded.
Appellant cites Crim.R. 11(C) as support for his argument.
{¶ 8} Crim.R. 11(C) provides, in relevant part:
(C) Pleas of guilty and no contest in felony cases
***
(2) 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 involved, and if applicable, that the defendant is not eligible for
4. probation or for the imposition of community control sanctions at the
sentencing hearing.
{¶ 9} Appellant acknowledges that his right to be informed of the maximum
penalty under Crim.R. 11(C)(2)(a) is a non-constitutional right. See State v. Abuhashish,
6th Dist. Wood No. WD-07-048, 2008-Ohio-3849, ¶ 33 (stating that “informing the
defendant of the maximum penalty [he] faced because of the plea he would enter was a
non-constitutional right”). The Supreme Court of Ohio has held that courts need only
substantially comply with the non-constitutional notifications required by Crim.R.
11(C)(2)(a). State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977).
“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, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Furthermore, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently, and
voluntarily made must show a prejudicial effect.” Id. “The test is whether the plea
would have otherwise been made.” Id. We have previously stated that “[t]he key is
whether the defendant had actual notice of the maximum sentence involved.”
Abuhashish at ¶ 35, citing State v. Reed, 6th Dist. Lucas No. L-06-1130, 2007-Ohio-
4087, ¶ 26, and State v. Bach, 6th Dist. No. L-04-1326, 2005-Ohio-4173, ¶ 14.
{¶ 10} In this case, it is clear from the record that appellant had actual notice of
the maximum sentence involved. While appellant is correct in his assertion that the trial
court did not personally inform him of the maximum sentence at the plea hearing, the
5. hearing transcript demonstrates that appellant was provided with a copy of his written
plea agreement, which clearly states the maximum prison sentence for each of the three
counts to which appellant pleaded no contest. Prior to accepting appellant’s pleas, the
trial court asked appellant it he had an opportunity to “read and review” the plea forms
with his attorney. Appellant responded in the affirmative. The court then asked appellant
if he had any questions about “anything contained in the plea forms.” Appellant stated
that he did not have any such questions.
{¶ 11} Given appellant’s review of the written plea forms in this case, which
specified the potential prison sentences for each count to which appellant pleaded no
contest, we find that appellant had actual notice of the maximum sentence involved. See
Abuhashish at ¶ 36 (finding that the trial court substantially complied with Crim.R.
11(C)(2)(a) where the court did not expressly inform the defendant of the maximum
penalty involved but the written plea agreement set forth the maximum penalty and the
court ensured that the defendant understood the terms contained therein). We are not
persuaded otherwise by the cases cited by appellant in his brief.
{¶ 12} For example, in State v. Wicks, 8th Dist. Cuyahoga No. 98236, 2013-Ohio-
1340, the defendant’s plea was vacated by the appellate court because the trial court
failed to inform the defendant of the maximum penalty on one of the two counts to which
the defendant pleaded guilty. Notably, there is no indication that the defendant reviewed
a detailed plea form setting forth the maximum penalty prior to entering the plea, as was
the case in the present action.
6. {¶ 13} In State v. Calvillo, 76 Ohio App.3d 714, 603 N.E.2d 325 (8th Dist.1991),
another case cited by appellant, the trial court notified the defendant about the maximum
penalty involved, but overstated the potential prison sentence by ten years. As a result,
the court of appeals vacated the defendant’s plea. Once again, there is no indication that
the defendant in Calvillo was provided with a detailed plea form that outlined the
necessary information. Further, appellant makes no allegation that he was misinformed
by the trial court in this case, and our review of the record has revealed no such
misinformation. Thus, Calvillo is inapposite.
{¶ 14} Having found that appellant received actual notice of the maximum
sentence involved, we find that the trial court substantially complied with the mandates of
Crim.R. 11(C)(2)(a). Consequently, appellant’s no contest plea was knowingly,
intelligently, and voluntarily entered, and appellant’s sole assignment of error is not well-
taken.
III. Conclusion
{¶ 15} In light of the foregoing, we affirm the judgment of the Lucas County
Court of Common Pleas. Costs are hereby assessed to appellant in accordance with
App.R. 24.
Judgment affirmed.
7. State v. Dorsey C.A. No. L-15-1174 L-15-1175 L-15-1176 L-15-1177
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
8.