[Cite as State v. Tutt, 2016-Ohio-3259.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103181
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
KHALID TUTT DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-589749-A
BEFORE: E.T. Gallagher, P.J., Stewart, J., and Boyle, J.
RELEASED AND JOURNALIZED: June 2, 2016 ATTORNEY FOR APPELLANT
P. Andrew Baker Buckeye Law Office 11510 Buckeye Road Cleveland, Ohio 44104
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Gregory J. Ochocki Marc D. Bullard Assistant Prosecuting Attorneys The Justice Center, 8th and 9th Floors 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Khalid Tutt (“Tutt”), appeals his convictions and raises
the following three assigned errors:
1. The trial court erred when it accepted defendant-appellant’s plea when it was not made knowingly, intelligently, and voluntarily.
2. The trial court erred in depriving the defendant-appellant of effective assistance of counsel.
3. The trial court erred in improperly imposing consecutive sentences and defendant-appellant must receive a new sentencing hearing.
{¶2} We find merit to the appeal and reverse.
I. Facts and Procedural History
{¶3} Tutt was indicted on several drug-related charges in Cuyahoga C.P. No.
CR-14-589749-A. He pleaded guilty to (1) trafficking in violation of R.C.
2925.03(A)(2), (2) defacing identification marks on a firearm in violation of R.C.
2923.201(A)(2), (3) tampering with evidence in violation of R.C. 2921.12(A)(1), and (4)
having a weapon while under disability in violation of R.C. 2923.13(A)(2).
{¶4} Following a presentence investigation, the court sentenced Tutt to a five-year
prison term on the drug trafficking charge, plus a consecutive mandatory one year for the
attendant gun specification for an aggregate six-year term. With respect to the other
charges, the court sentenced Tutt to six months on the defacing identification marks on a
firearm charge, one year on the tampering with evidence charge, and one year on the having a weapon while under disability charge, to be served concurrently with the
six-year term on the trafficking conviction.
{¶5} As a result of Tutt’s convictions in this case, the court found him in violation
of the terms of his community control sanctions in Cuyahoga C.P. No. CR-09-528423-A
and sentenced him to one year in prison for the violation to be served consecutive to his
six-year sentence in Case No. CR-589749-A. Tutt now appeals his convictions and
consecutive sentence.
II. Law and Analysis
{¶6} In the first assignment of error, Tutt argues the trial court erred in finding that
he knowingly, intelligently, and voluntarily pleaded guilty in Case No. CR-589749-A.
He contends the court failed to comply with the requirements of Crim.R. 11(C)(2)(a).
{¶7} To be constitutionally valid, the criminal defendant must enter a guilty plea to
a felony charge knowingly, intelligently, and voluntarily. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. Crim.R. 11(C) outlines the constitutional
and procedural safeguards the trial court must follow when accepting a guilty plea.
Pursuant to Crim.R. 11(C), the trial court must personally address the defendant and
inform him of the constitutional rights he is waiving by virtue of his plea. The court
must also advise the defendant of several nonconstitutionally based rights, including
knowledge of the “nature of the charges,” the “maximum penalty” involved, and if
applicable, that the defendant is ineligible for community control sanctions. Crim.R.
11(C)(2). “When a trial judge fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c),” the guilty plea is invalid “under a presumption that it was entered
involuntarily and unknowingly.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 31. Therefore, the trial court must strictly comply with the mandates
of Crim.R. 11(C)(2) regarding the waiver of constitutional rights. Veney at ¶ 27.
{¶8} If the trial judge fails to perfectly explain the defendant’s nonconstitutional
rights, “substantial compliance” is sufficient. Clark at ¶ 31. Under this standard, a slight
deviation from the text of the rule is permissible so long as the totality of the
circumstances indicates “the defendant subjectively understands the implications of his
plea and the rights he is waiving.” Id.
{¶9} Further, where the trial judge partially complied with the rule with respect to
nonconstitutional rights, the plea may only be vacated if the defendant demonstrates a
prejudicial effect. Veney at ¶ 17. The test for prejudice is “‘whether the plea would
have otherwise been made.’” Clark at ¶ 32, quoting State v. Nero, 56 Ohio St.3d 106,
107, 564 N.E.2d 474 (1990).
{¶10} Tutt argues the trial court did not advise him of the maximum penalty
involved because the court failed to explain the mandatory nature of the sentence he
would receive on the trafficking charge, which was a first-degree felony. He relies on
State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 10, to support his
argument.
{¶11} In Ware, the Ohio Supreme Court held that trial courts have no authority to
divide a singular “mandatory prison term” into “a hybrid of mandatory and discretionary sub-terms,” thus making it impossible for a defendant to obtain judicial release after
serving the mandatory portion of the sentence. Ware at ¶ 17. Therefore, Tutt argues,
the trial court should have explained that Tutt would be ineligible for judicial release after
serving the mandatory portion of his prison sentence.
{¶12} Tutt pleaded guilty to drug trafficking in violation of R.C. 2925.03(A)(2), a
first-degree felony. R.C. 2925.03(A)(2)(e) provides the sentence for this offense and
states that “the court shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.” R.C. 2929.14, which governs basic prison
terms, provides that “[f]or a felony of the first degree, the prison term shall be three, four,
five, six, seven, eight, nine, ten, or eleven years.” Therefore, whatever prison term the
court imposes pursuant to R.C. 2929.14 for first-degree felony trafficking offenses in
violation of R.C. 2925.03(A)(2) is a mandatory term.
{¶13} During the colloquy, the court explained the statutory penalties for each
offense to which Tutt would be pleading guilty, and Tutt asked, “Is this going to be
mandatory time?” Initially the court indicated that only part of the prison term was
mandatory, but quickly corrected itself and stated:
THE COURT: Oh, it is mandatory. What am I thinking? In other words, it’s a minimum mandatory of three years on the felony 1 drugs and mandatory one year on the firearm specification.
THE DEFENDANT: Do those run together or do three and one?
THE COURT: You’ve got to do at least three and one. That’s four. Four is the minimum mandatory here.
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[Cite as State v. Tutt, 2016-Ohio-3259.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103181
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
KHALID TUTT DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-589749-A
BEFORE: E.T. Gallagher, P.J., Stewart, J., and Boyle, J.
RELEASED AND JOURNALIZED: June 2, 2016 ATTORNEY FOR APPELLANT
P. Andrew Baker Buckeye Law Office 11510 Buckeye Road Cleveland, Ohio 44104
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Gregory J. Ochocki Marc D. Bullard Assistant Prosecuting Attorneys The Justice Center, 8th and 9th Floors 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Khalid Tutt (“Tutt”), appeals his convictions and raises
the following three assigned errors:
1. The trial court erred when it accepted defendant-appellant’s plea when it was not made knowingly, intelligently, and voluntarily.
2. The trial court erred in depriving the defendant-appellant of effective assistance of counsel.
3. The trial court erred in improperly imposing consecutive sentences and defendant-appellant must receive a new sentencing hearing.
{¶2} We find merit to the appeal and reverse.
I. Facts and Procedural History
{¶3} Tutt was indicted on several drug-related charges in Cuyahoga C.P. No.
CR-14-589749-A. He pleaded guilty to (1) trafficking in violation of R.C.
2925.03(A)(2), (2) defacing identification marks on a firearm in violation of R.C.
2923.201(A)(2), (3) tampering with evidence in violation of R.C. 2921.12(A)(1), and (4)
having a weapon while under disability in violation of R.C. 2923.13(A)(2).
{¶4} Following a presentence investigation, the court sentenced Tutt to a five-year
prison term on the drug trafficking charge, plus a consecutive mandatory one year for the
attendant gun specification for an aggregate six-year term. With respect to the other
charges, the court sentenced Tutt to six months on the defacing identification marks on a
firearm charge, one year on the tampering with evidence charge, and one year on the having a weapon while under disability charge, to be served concurrently with the
six-year term on the trafficking conviction.
{¶5} As a result of Tutt’s convictions in this case, the court found him in violation
of the terms of his community control sanctions in Cuyahoga C.P. No. CR-09-528423-A
and sentenced him to one year in prison for the violation to be served consecutive to his
six-year sentence in Case No. CR-589749-A. Tutt now appeals his convictions and
consecutive sentence.
II. Law and Analysis
{¶6} In the first assignment of error, Tutt argues the trial court erred in finding that
he knowingly, intelligently, and voluntarily pleaded guilty in Case No. CR-589749-A.
He contends the court failed to comply with the requirements of Crim.R. 11(C)(2)(a).
{¶7} To be constitutionally valid, the criminal defendant must enter a guilty plea to
a felony charge knowingly, intelligently, and voluntarily. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. Crim.R. 11(C) outlines the constitutional
and procedural safeguards the trial court must follow when accepting a guilty plea.
Pursuant to Crim.R. 11(C), the trial court must personally address the defendant and
inform him of the constitutional rights he is waiving by virtue of his plea. The court
must also advise the defendant of several nonconstitutionally based rights, including
knowledge of the “nature of the charges,” the “maximum penalty” involved, and if
applicable, that the defendant is ineligible for community control sanctions. Crim.R.
11(C)(2). “When a trial judge fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c),” the guilty plea is invalid “under a presumption that it was entered
involuntarily and unknowingly.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 31. Therefore, the trial court must strictly comply with the mandates
of Crim.R. 11(C)(2) regarding the waiver of constitutional rights. Veney at ¶ 27.
{¶8} If the trial judge fails to perfectly explain the defendant’s nonconstitutional
rights, “substantial compliance” is sufficient. Clark at ¶ 31. Under this standard, a slight
deviation from the text of the rule is permissible so long as the totality of the
circumstances indicates “the defendant subjectively understands the implications of his
plea and the rights he is waiving.” Id.
{¶9} Further, where the trial judge partially complied with the rule with respect to
nonconstitutional rights, the plea may only be vacated if the defendant demonstrates a
prejudicial effect. Veney at ¶ 17. The test for prejudice is “‘whether the plea would
have otherwise been made.’” Clark at ¶ 32, quoting State v. Nero, 56 Ohio St.3d 106,
107, 564 N.E.2d 474 (1990).
{¶10} Tutt argues the trial court did not advise him of the maximum penalty
involved because the court failed to explain the mandatory nature of the sentence he
would receive on the trafficking charge, which was a first-degree felony. He relies on
State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 10, to support his
argument.
{¶11} In Ware, the Ohio Supreme Court held that trial courts have no authority to
divide a singular “mandatory prison term” into “a hybrid of mandatory and discretionary sub-terms,” thus making it impossible for a defendant to obtain judicial release after
serving the mandatory portion of the sentence. Ware at ¶ 17. Therefore, Tutt argues,
the trial court should have explained that Tutt would be ineligible for judicial release after
serving the mandatory portion of his prison sentence.
{¶12} Tutt pleaded guilty to drug trafficking in violation of R.C. 2925.03(A)(2), a
first-degree felony. R.C. 2925.03(A)(2)(e) provides the sentence for this offense and
states that “the court shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.” R.C. 2929.14, which governs basic prison
terms, provides that “[f]or a felony of the first degree, the prison term shall be three, four,
five, six, seven, eight, nine, ten, or eleven years.” Therefore, whatever prison term the
court imposes pursuant to R.C. 2929.14 for first-degree felony trafficking offenses in
violation of R.C. 2925.03(A)(2) is a mandatory term.
{¶13} During the colloquy, the court explained the statutory penalties for each
offense to which Tutt would be pleading guilty, and Tutt asked, “Is this going to be
mandatory time?” Initially the court indicated that only part of the prison term was
mandatory, but quickly corrected itself and stated:
THE COURT: Oh, it is mandatory. What am I thinking? In other words, it’s a minimum mandatory of three years on the felony 1 drugs and mandatory one year on the firearm specification.
THE DEFENDANT: Do those run together or do three and one?
THE COURT: You’ve got to do at least three and one. That’s four. Four is the minimum mandatory here. I’m not representing to you I’m giving you four years by any stretch of the imagination. You understand that, don’t you. THE DEFENDANT: Yes, sir.
(Tr. 9-10.)
{¶14} With respect to Tutt’s trafficking charge, the court explained:
A felony of the first degree carries anywhere from three to 11 years in prison in yearly increments and/or fine up to $20,000. The one-year firearm specification must be served prior to and consecutive to the base penalty of three to 11 years.
(Tr. 6.) Thus, the court explained the maximum prison term Tutt could receive for
trafficking.
{¶15} However, questions remained regarding the mandatory nature of the
potential prison term. Tutt asked the court if there were any programs available that
would allow him to be released from prison early. In response to this question, the court
answered: “Once you are down there, they control your destiny, I don’t.”
{¶16} The court’s response suggested that the prison might have programs that
would permit early release from prison. Thus, the court’s response was misleading and
inaccurate because the statute expressly states that service of the entire prison term is
mandatory. The court did not inform Tutt the truth of the matter, which was that any
prison term imposed for Tutt’s trafficking conviction was mandatory, regardless of its
length. There could be no programs available that would have allowed Tutt to be
released from prison before the end of the mandatory term. Therefore, because Tutt’s
plea was made on the basis of inaccurate information, it could not have been knowingly,
intelligently, or voluntarily. {¶17} Therefore, the first assignment of error is sustained.
{¶18} Having determined that Tutt’s plea was not made knowingly, intelligently,
or voluntarily and must be vacated, the remaining assignments of error, which relate to
sentencing and the effectiveness of trial counsel are moot.
{¶19} Judgment reversed. Tutt’s plea is vacated and the case is remanded to the
trial court for further proceedings.
It is ordered that appellant recover from appellee the 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., and MARY J. BOYLE, J., CONCUR