[Cite as State v. Beamer, 2011-Ohio-639.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2010 AP 01 0005 DEBBIE L. BEAMER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2009 CR 07 0168
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 10, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER E. MARIE SEIBER PROSECUTING ATTORNEY 431 Center Street ROBERT C. URBAN, JR. Post Office Box 108 ASSISTANT PROSECUTOR Dennison, Ohio 44621 125 East High Avenue New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2010 AP 01 0005 2
Wise, J.
{¶1} Appellant Debbie L. Beamer appeals the decisions of the Court of
Common Pleas, Tuscarawas County, which found her guilty of felony theft following a
no contest plea and subsequently denied her motion to withdraw said plea. The relevant
facts leading to this appeal are as follows.
{¶2} On July 8, 2009, the Tuscarawas County Grand Jury indicted appellant on
one count of theft, a felony of the fifth degree. Appellant initially entered a plea of not
guilty, and the matter proceeded to a pretrial on or about September 11, 2009.
{¶3} On November 17, 2009, appellant appeared before the trial court with her
counsel, Attorney Gary Greig, and entered a plea of no contest. There was no written
confession or document signed by appellant stating that she understood the nature of
the charges, the potential penalties, or the effect of her plea. Following a brief colloquy,
the trial court found appellant guilty and set the matter of sentencing for a hearing on
December 30, 2009. The court issued an entry on January 4, 2010, sentencing
appellant, in pertinent part, to twelve months in prison, with said time “reserved for
imposition.” Sentencing Entry at 2. The court also imposed community control
sanctions. Id.
{¶4} On January 28, 2010, appellant filed a motion to withdraw plea, a motion
for stay of execution of sentence, and a notice of appeal.
{¶5} On February 9, 2010, following a hearing, the trial court issued a judgment
entry overruling appellant’s motion to withdraw plea. Furthermore, appellant was
appointed new counsel for appeal.
{¶6} Appellant herein raises the following four Assignments of Error: Tuscarawas County, Case No. 2010 AP 01 0005 3
{¶7} “I. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEA
OF NO CONTEST WITHOUT FIRST SUFFICIENTLY INFORMING HER OF THE
INFORMATION REQUIRED BY CRIM.R. 11(C).
{¶8} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST
TO APPOINT NEW COUNSEL REGARDING THE MOTION TO WITHDRAW HER
PLEA.
{¶9} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO WITHDRAW HER PLEA OF NO CONTEST, PURSUANT TO CRIM.R. 32.1.
{¶10} “IV. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL BY MAKING ERRORS SO SERIOUS THAT HE DID NOT FUNCTION AS
COUNSEL AS GUARANTEED BY THE UNITED STATES CONSTITUTION, 6TH AND
14TH AMENDMENTS AND THE OHIO CONSTITUTION, ARTICLE 1 SEC. 10.”
I.
{¶11} In her First Assignment of Error, appellant contends the trial court erred in
accepting her no contest plea in light of the requirements of Crim.R. 11. We agree.
{¶12} The pertinent rule, Crim.R. 11(C)(2), reads as follows:
{¶13} “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:
{¶14} “(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. Tuscarawas County, Case No. 2010 AP 01 0005 4
{¶15} “(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.
{¶16} “(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.”
{¶17} Generally, in accepting a guilty plea, a trial court must substantially comply
with Crim.R. 11(C), which we review based on the totality of the circumstances. See
State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474; State v. Carter (1979),
60 Ohio St.2d 34, 38, 396 N.E.2d 757.
{¶18} However, in regard to the specific constitutional rights referenced in
Crim.R. 11(C)(2)(c), the Ohio Supreme Court has set forth the following rule of law: “A
trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant
before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the
right to confront one's accusers, (3) the right to compulsory process to obtain witnesses,
(4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the
privilege against compulsory self-incrimination. When a trial court fails to strictly comply
with this duty, the defendant's plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 897
N.E.2d 621, 2008-Ohio-5200, syllabus. The Court further mandated: “Thus, pursuant to
the strict-compliance standard set forth in [State v. Ballard (1981), 66 Ohio St.2d 473], Tuscarawas County, Case No. 2010 AP 01 0005 5
the trial court must orally inform the defendant of the rights set forth in Crim.R.
11(C)(2)(c) during the plea colloquy for the plea to be valid. Although the trial court may
vary slightly from the literal wording of the rule in the colloquy, the court cannot simply
rely on other sources to convey these rights to the defendant. ***.” Veney at ¶ 29,
emphasis added.
{¶19} In the case sub judice, on November 17, 2009, just prior to appellant’s
plea, the trial court took an unrelated plea from Julia M. Davis in a felony-5 drug
possession matter, Case No. 2009CR070172. After engaging in colloquy with Davis,1
the trial court judge inquired if appellant was present in the courtroom, and then stated
he would “see [her] in a minute.” Davis Transcript at 19-20. The judge thereafter
engaged in the following colloquy with appellant:
{¶20} “THE COURT: Okay. Well let me talk now. Here’s what’s going to
happen. If you plead no contest today I’ll find you guilty and the sentence is going to be
two years of good behavior. You understand? Good behavior. And you’ll be required
to spend some time in jail. And you’ll then be reporting to a probation office periodically
to make sure that you are behaving. And then if you’re successful in behaving you
won’t have to worry about any more jail time. But if you make violations or if you
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[Cite as State v. Beamer, 2011-Ohio-639.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2010 AP 01 0005 DEBBIE L. BEAMER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2009 CR 07 0168
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 10, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER E. MARIE SEIBER PROSECUTING ATTORNEY 431 Center Street ROBERT C. URBAN, JR. Post Office Box 108 ASSISTANT PROSECUTOR Dennison, Ohio 44621 125 East High Avenue New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2010 AP 01 0005 2
Wise, J.
{¶1} Appellant Debbie L. Beamer appeals the decisions of the Court of
Common Pleas, Tuscarawas County, which found her guilty of felony theft following a
no contest plea and subsequently denied her motion to withdraw said plea. The relevant
facts leading to this appeal are as follows.
{¶2} On July 8, 2009, the Tuscarawas County Grand Jury indicted appellant on
one count of theft, a felony of the fifth degree. Appellant initially entered a plea of not
guilty, and the matter proceeded to a pretrial on or about September 11, 2009.
{¶3} On November 17, 2009, appellant appeared before the trial court with her
counsel, Attorney Gary Greig, and entered a plea of no contest. There was no written
confession or document signed by appellant stating that she understood the nature of
the charges, the potential penalties, or the effect of her plea. Following a brief colloquy,
the trial court found appellant guilty and set the matter of sentencing for a hearing on
December 30, 2009. The court issued an entry on January 4, 2010, sentencing
appellant, in pertinent part, to twelve months in prison, with said time “reserved for
imposition.” Sentencing Entry at 2. The court also imposed community control
sanctions. Id.
{¶4} On January 28, 2010, appellant filed a motion to withdraw plea, a motion
for stay of execution of sentence, and a notice of appeal.
{¶5} On February 9, 2010, following a hearing, the trial court issued a judgment
entry overruling appellant’s motion to withdraw plea. Furthermore, appellant was
appointed new counsel for appeal.
{¶6} Appellant herein raises the following four Assignments of Error: Tuscarawas County, Case No. 2010 AP 01 0005 3
{¶7} “I. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEA
OF NO CONTEST WITHOUT FIRST SUFFICIENTLY INFORMING HER OF THE
INFORMATION REQUIRED BY CRIM.R. 11(C).
{¶8} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST
TO APPOINT NEW COUNSEL REGARDING THE MOTION TO WITHDRAW HER
PLEA.
{¶9} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO WITHDRAW HER PLEA OF NO CONTEST, PURSUANT TO CRIM.R. 32.1.
{¶10} “IV. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL BY MAKING ERRORS SO SERIOUS THAT HE DID NOT FUNCTION AS
COUNSEL AS GUARANTEED BY THE UNITED STATES CONSTITUTION, 6TH AND
14TH AMENDMENTS AND THE OHIO CONSTITUTION, ARTICLE 1 SEC. 10.”
I.
{¶11} In her First Assignment of Error, appellant contends the trial court erred in
accepting her no contest plea in light of the requirements of Crim.R. 11. We agree.
{¶12} The pertinent rule, Crim.R. 11(C)(2), reads as follows:
{¶13} “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:
{¶14} “(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. Tuscarawas County, Case No. 2010 AP 01 0005 4
{¶15} “(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.
{¶16} “(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.”
{¶17} Generally, in accepting a guilty plea, a trial court must substantially comply
with Crim.R. 11(C), which we review based on the totality of the circumstances. See
State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474; State v. Carter (1979),
60 Ohio St.2d 34, 38, 396 N.E.2d 757.
{¶18} However, in regard to the specific constitutional rights referenced in
Crim.R. 11(C)(2)(c), the Ohio Supreme Court has set forth the following rule of law: “A
trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant
before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the
right to confront one's accusers, (3) the right to compulsory process to obtain witnesses,
(4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the
privilege against compulsory self-incrimination. When a trial court fails to strictly comply
with this duty, the defendant's plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 897
N.E.2d 621, 2008-Ohio-5200, syllabus. The Court further mandated: “Thus, pursuant to
the strict-compliance standard set forth in [State v. Ballard (1981), 66 Ohio St.2d 473], Tuscarawas County, Case No. 2010 AP 01 0005 5
the trial court must orally inform the defendant of the rights set forth in Crim.R.
11(C)(2)(c) during the plea colloquy for the plea to be valid. Although the trial court may
vary slightly from the literal wording of the rule in the colloquy, the court cannot simply
rely on other sources to convey these rights to the defendant. ***.” Veney at ¶ 29,
emphasis added.
{¶19} In the case sub judice, on November 17, 2009, just prior to appellant’s
plea, the trial court took an unrelated plea from Julia M. Davis in a felony-5 drug
possession matter, Case No. 2009CR070172. After engaging in colloquy with Davis,1
the trial court judge inquired if appellant was present in the courtroom, and then stated
he would “see [her] in a minute.” Davis Transcript at 19-20. The judge thereafter
engaged in the following colloquy with appellant:
{¶20} “THE COURT: Okay. Well let me talk now. Here’s what’s going to
happen. If you plead no contest today I’ll find you guilty and the sentence is going to be
two years of good behavior. You understand? Good behavior. And you’ll be required
to spend some time in jail. And you’ll then be reporting to a probation office periodically
to make sure that you are behaving. And then if you’re successful in behaving you
won’t have to worry about any more jail time. But if you make violations or if you
commit violations of the court orders then you could be punished more severely.
Understood?
{¶21} “THE DEFENDANT: Yeah.
{¶22} “THE COURT: Debbie, you were here. Did you listen to me when I talked
to that previous lady?
1 The transcript portion of the plea hearing for Davis, which runs twenty pages, is included in the present record. Tuscarawas County, Case No. 2010 AP 01 0005 6
{¶23} “THE DEFENDANT: Yes.
{¶24} “THE COURT: Do you understand what I said?
{¶25} “THE DEFENDANT: Yes.
{¶26} “THE COURT: All of that applies to you. So if you’re prepared to plead no
contest today I’ll accept your plea.
{¶27} “THE DEFENDANT: I am.
{¶28} “THE COURT: And then I’m going to - -
{¶29} “THE DEFENDANT: I’m guilty, Your Honor. * * *” Beamer Change of
Plea Tr. at 5-6.
{¶30} In its response brief, the State directs us to Ballard, supra, wherein the
Ohio Supreme Court held that “rote recitation” of the exact language of Crim.R. 11(C) is
not demanded during the plea hearing. In the case sub judice, however, the record
demonstrates that the trial court attempted to incorporate its prior colloquy with Davis
into its colloquy with appellant, which in effect was an attempt to utilize another source
to convey the rights set forth in 11(C)(2)(c). Furthermore, it is not apparent at which
point in time appellant had entered the courtroom during the Davis hearing, nor can we
be confident that a layperson would have understood the significance of the court’s
comprehensive statement of “all of that applies to you.” In regard to appellant’s
11(C)(2)(c) rights, the trial court had a duty to engage in “meaningful dialogue” with her
that would explain the pertinent constitutional rights ‘in a manner reasonably intelligible
to [the] defendant.’ ” See State v. Thomas, Cuyahoga App.No. 94788, 2011-Ohio-214, ¶
12, citing Ballard, supra, at paragraph two of the syllabus. Under the circumstances
presented, we find the trial court failed to fulfill such duty, resulting in reversible error. Tuscarawas County, Case No. 2010 AP 01 0005 7
{¶31} Accordingly, appellant's First Assignment of Error is sustained.
II., III., IV.
{¶32} In light of our redress of appellant’s first assigned error, we find the
remaining Assignments of Error to be moot.
{¶33} For the foregoing reasons, the judgment of the Court of Common Pleas,
Tuscarawas County, Ohio, is hereby reversed and remanded for a new plea hearing.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
___________________________________
JUDGES JWW/d 0126 Tuscarawas County, Case No. 2010 AP 01 0005 8
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DEBBIE L. BEAMER : : Defendant-Appellant : Case No. 2010 AP 01 0005
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is reversed and
remanded for further proceedings consistent with this opinion.
Costs assessed to Appellee State of Ohio.
JUDGES