The STATE of Ohio, Appellee, v. JONES, Appellant, 181 Ohio App. 3d 47

Mary Eileen Kilbane, Judge. {¶ 1} Defendant Jamaull Jones (“appellant”) appeals the court’s accepting his guilty plea to preparation of drugs for sale. After reviewing the facts of the case and pertinent law, we reverse and remand. I {¶ 2} On January 6, 2000, appellant was indicted for possession of drugs, with a major-drug-offender specification,, and possession of criminal tools, based on his participation in an attempted controlled delivery of approximately one kilogram of powder cocaine.

On March 15, 2000, appellant pleaded guilty to preparation of drugs for sale, in violation of former R.C. 2925.07, a fourth-degree felony. The major-drug-offender specification was deleted, and the state nolled the possession-of-criminal-tools charge. This guilty plea was in exchange for appellant’s testimony against his co-defendant in the case, Scott Stockwell. Appellant was sentenced to 17 months in prison, which was suspended, two years of community-control sanctions, and a $250 fine.

Appellant did not file a direct appeal. {¶ 3} On August 29, 2000, the court held a hearing and found appellant to be in violation of his probation. The court reinstated appellant’s suspended sentence of 17 months in prison. {¶ 4} On February 13, 2008, appellant filed a notice of appeal, arguing that his March 15, 2000 plea should be vacated because it was not knowingly, voluntarily, and intelligently made.

II {¶ 5} In appellant’s sole assignment of error, he argues that his “due process rights were violated when a guilty plea was taken to amended count 1, which is not a lesser included offense of indicted count 1 and which the court failed to inquire as to whether he understood the charge.” {¶ 6} The underlying purpose of Crim.R. 11(

C) is for the court to give enough information to a defendant to allow him to make an intelligent, voluntary, and knowing decision of whether to plead guilty. See State v. Ballard (1981), 66 Ohio St.2d 473, 20 O.O.3d 397, 423 N.E.2d 115. Courts have divided Crim.R. 11 rights into constitutional and nonconstitutional rights. Concerning the constitutional rights, courts must strictly comply with Crim.R. 11 mandates; for the nonconstitutional rights, the standard is substantial compliance. State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163.

Substantial compliance means that “if under the totality of the circumstances it is apparent the defendant subjectively understood the implications of his plea, the plea should not be vacated.” State v. Scruggs, Cuyahoga App.

No. 83863, 2004-Ohio-3732, 2004 WL 1575253. {¶ 7} In the instant case, appellant argues that the court did not comply with Crim.R. 11(C)(2)(a), in that the court accepted his plea without “[djetermining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved.” This is a nonconstitutional right and is subject to the substantial-compliance standard on review. See State v. Holder (1994), 97 Ohio App.3d 486, 646 N.E.2d 1173. In addition, in State v. Mancini (Jan. 7, 1993), Cuyahoga App.

No. 63892, 1993 WL 4721, this court held the following: “The acceptance of a guilty plea violates due process where three conditions are met: (1) the defendant pleads to an offense which is not a lesser included offense of the charged crime; (2) there is a failure to explain the additional elements of the offense to which the defendant will plead; and (3) under the facts of the indictment, the defendant could not have committed nor been convicted of the offense.” {¶ 8} A review of the record in the instant case shows that appellant was initially charged with drug possession in violation of R.C. 2925.11.

However, this charge was amended, and appellant pleaded guilty to preparation of drugs for sale in violation of former R.C. 2925.07. First, we look at whether preparation of drugs for sale was a lesser included offense of drug possession.

Drug possession, pursuant to R.C. 2925.11(A), is defined as “[n]o person shall knowingly obtain, possess, or use a controlled substance.” Former R.C. 2925.07 defines preparation of drugs for sale as follows: “No person shall knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance * * * when the person knows or has reasonable cause to believe that another person intends to sell or resell the controlled substance.” Thus, preparation of drugs for sale is not a lesser included offense of drug possession. See, e.g., State v.

Boone (Dec. 28, 2001), Stark App. No. 2001CA00167, 2001 WL 1672559 (noting that drug possession is, in fact, a lesser included offense of preparation of drugs for sale). {¶ 9} Second, we look at the record to see whether there is a failure to explain the additional elements of preparation of drugs for sale. A review of the record shows that the court, at the March 15, 2000 plea hearing, did not define or even name the offense to which appellant pleaded guilty.

Rather, the prosecutor put the following onto the record: “The State of Ohio respectfully requests] this Court amend Count 1 of the indictment to read violation of 2925.07; that is, preparation of drugs for sale or resale.” The court then asked appellant whether he understood that he was pleading guilty to a fourth-degree felony, punishable by six to 18 months of incarceration. Next, the court explained to appellant the community-control sanctions he would be subject to, and what penalties he might incur if he violated them. The court substantially complied with the portion of Crim.R. 11(C)(2)(

a) that mandates understanding of the maximum penalties involved. However, we must now determine whether, given the record before us, the appellant understood “the nature of the charge” to which he pleaded guilty. (¶ 10} There is nothing in the record to indicate that appellant understood the nature of the charge to which he pleaded guilty, other than that it was a fourth-degree felony. Under the Mancini test, the court failed to explain any elements of preparation of drugs for sale or drug possession.

Specifically, the record is silent on the additional element of preparing a controlled substance for shipment with reasonable belief that another person intends to sell it. {¶ 11} Third, we look at the indictment to see whether, given the facts, appellant could have been convicted of preparation of drugs for sale. According to the indictment, appellant possessed cocaine in an amount greater than 1,000 grams. In addition, the criminal tool that he was charged with possessing was a 1993 Chevrolet Tahoe.

Under this set of facts, appellant could not have been convicted of preparation of drugs for sale. {¶ 12} While we are mindful that substantial compliance is the standard by which we review the trial court’s action in the instant case, a review of the record shows that but for the state’s request to amend the indictment to read that appellant violated R.C. 2925.07, it would be unclear which offense appellant pleaded guilty to.

We find this to be a unique situation and conclude that, specifically under Mancini, the court failed to determine that appellant understood the nature of the charge of preparation of drugs for sale. {¶ 13} Appellant’s assignment of error is sustained, and this case is reversed and remanded to the lower court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Boyle, J., concurs. Cooney, A.J., dissents.