State v. Bettis

2024 Ohio 5226

• Court: Ohio Court of Appeals
• Decided: October 31, 2024
• Docket: 2024 CA 00023
• Status: Published

Opinion

[Cite as State v. Bettis, 2024-Ohio-5226.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin., J. -vs- : : MERVIN G. BETTIS, : Case No. 2024 CA 00023 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 2023 CR 00784

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 31, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNY WELLS BRIAN A. SMITH Licking County Prosecuting Attorney 123 S. Miller Rd., Suite 250 Akron, Ohio 44333 By: Kenneth W. Oswalt Assistant Prosecuting Attorney 20 S. Second Street, 4th Floor Newark, Ohio 43055 Licking County, Case No. 2024 CA 00023 2

Baldwin, J.

{¶1} The appellant appeals his conviction and sentence on the charge of first-

degree misdemeanor theft. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On or about October 25, 2023, the appellant broke into a parked vehicle.

The owner caught and confronted him, at which time he fled. Officers from the Pataskala

Police Department located the appellant in his vehicle fleeing the scene. The appellant’s

vehicle did not display a license plate, and a traffic stop was initiated.

{¶3} The appellant initially denied being involved in the vehicle break-in.

However, the victim’s wallet, multiple credit cards, and phone were found in the

appellant’s vehicle, after which he admitted that he stole the items.

{¶4} The appellant was subsequently charged with the following: Count One,

Breaking and Entering in violation of R.C. 2911.13(B), a fifth degree felony; Count Two,

Theft in violation of R.C. 2913.02(A)(1), a fifth-degree felony; and, Count Three, Theft in

violation of R.C. 2913.02(A)(1), a first-degree misdemeanor. The appellant was arraigned

and pleaded not guilty.

{¶5} The appellant thereafter entered into an agreement with the appellee. An

“Admission of Guilt/No Contest” form was completed and filed on January 17, 2024, which

referenced only the felonies with which the appellant had been charged in Counts One

and Two. It did not reference the first-degree misdemeanor theft charge contained in

Count Three. The form set forth the parties’ jointly recommended sentence of twelve (12)

months in prison, with eighty-four (84) days of jail credit. Licking County, Case No. 2024 CA 00023 3

{¶6} A change of plea hearing took place on January 17, 2024, following

completion of the form. The trial court engaged in the requisite colloquy, explaining to the

appellant the constitutional rights he was waiving by pleading no contest to all the charges

against him. The following exchange took place during the hearing:

THE COURT: Mr. Wick, would you please present the facts of the

State’s case against the Defendant?

MR. WICK: Yes, Your Honor. On October 25, 2023, the Defendant

broke into a vehicle parked at an address on Morse Road, Pataskala,

Licking County, Ohio. The vehicle owner caught him breaking into the

vehicle, confronted him; he fled. The officers from the Pataskala Police

Department located the Defendant in his vehicle fleeing the scene.

Sergeant Smith called for additional units. A Mazda, which was being driven

by the Defendant, did not have a license plate. A traffic stop was initiated.

Contact was made. Defendant indicated that the license plate kept falling

off, and he kept it in the vehicle somewhere. The Defendant initially denied

being involved in the matter; however, once a wallet belonging to the victim,

[N.B.], was located along with multiple credit cards and a phone, Defendant

admitted to having stolen the items. As a result, the State of Ohio believes

that the Defendant is guilty of breaking and entering, theft as a felony of the

fifth agree [sic] for his theft of credit cards, theft as a misdemeanor for the

theft of the phone.

Thank you, Your Honor.

THE COURT: Thank you, Mr. Wick. Licking County, Case No. 2024 CA 00023 4

BY THE COURT:

Q: Mr. Bettis, do you agree with those facts that have been set forth by

the State?

A: Yes, sir.

* * *

Q: Do you understand, Mr. Bettis, that should the Court permit you to

change your plea here today, should the Court then enter guilty findings,

generally all that would remain to be done is to proceed with sentencing,

and the maximum sentence on these three counts would consist of a term

of two years at a state penitentiary, a fine of $6,000, possibly some

restitution, and up to two years of post-release control?

Do you understand that?

THE COURT: Now, Mr. Bettis, the Court finds your no contest pleas

to be freely, voluntarily, and understandingly made. The Court finds the

Defendant to be satisfied with services of counsel. The Court permits the

Defendant to withdraw his earlier made pleas of not guilty, and I’ll accept

your no contest pleas. The Court further finds there’s been a factual basis

presented, that the Defendant agrees with those facts that have been

presented, and the Court finds the Defendant to be guilty as charged as set

forth in the three counts of the indictment. Licking County, Case No. 2024 CA 00023 5

Ms. See, is there anything you’d like to say on behalf of Mr. Bettis

before the Court might impose any sentence here today?

MS. SEE: Just briefly, Your Honor. We had prepared for trial

today; however, Mr. Bettis has decided to plead no contest to the charges

in order to avoid that process and resolve this case. Mr. Bettis is prepared

to accept the sentence of the Court in this matter. With that being said, Mr.

Bettis was not under any type of supervision when this case occurred, and

while he does have some criminal history, he has not had any felony

convictions since I believe 2011. We would just ask the Court to consider

the 12 months discussed prior as a resolution in this matter, Your Honor.

Thank you.

THE COURT: Thank you.

Mr. Bettis, is there anything you’d like to say on your own behalf before the

Court imposes any sentence here?

DEFENDANT: There isn’t. No, sir.

{¶7} The language utilized throughout the hearing addressed all three counts

with which the appellant had been charged, including the Count Three misdemeanor

charge. Neither the appellant nor his trial counsel objected to or otherwise commented

on the numerous references to all three counts during the hearing, despite the fact that

both were asked if they had anything to say regarding the proceedings and the appellant’s

pleas of no contest.

{¶8} The trial court proceeded to sentence the appellant at the conclusion of the

hearing, imposing “a term of one year in the state penitentiary on Count No. 1, one year Licking County, Case No. 2024 CA 00023 6

in the state penitentiary on Count No. 2, six months on Count No. 3 to run concurrently

with each other for a one year prison term.” Further, the trial court granted the appellant

“84 days of jail time credit towards that 12 month sentence.” This is precisely the sentence

jointly recommended by the parties in the “Admission of Guilt/No Contest” form.

{¶9} The trial court filed a Judgment Entry on January 17, 2024, following the

hearing, documenting the appellant’s appearance at the hearing on three charges and

his request for leave of court to waive his right to a jury trial and enter pleas of no contest

to the charges against him. The Judgment Entry further documented the court’s

acceptance of the no contest pleas, and the appellant’s sentence to “an aggregate term

of one (1) year in the state penitentiary” with 84 days of jail credit.

{¶10} The appellant filed a timely Notice of Appeal in which he sets forth the

following sole assignment of error:

{¶11} “I. APPELLANT’S CONVICTION AND SENTENCE ON COUNT THREE OF

THE INDICTMENT, THEFT, A FIRST-DEGREE MISDEMEANOR, WAS CONTRARY TO

LAW, BECAUSE APPELLANT DID NOT ENTER A NO CONTEST PLEA TO COUNT

THREE OF THE INDICTMENT, IN VIOLATION OF APPELLANT’S RIGHTS TO TRIAL

AND TO DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 5 AND 16 OF THE

OHIO CONSTITUTION.”

{¶12} The appellant submits that he did not enter a no contest plea to the Count

Three misdemeanor charge, and as a result his conviction on said charge must be

vacated. We disagree. Licking County, Case No. 2024 CA 00023 7

STANDARD OF REVIEW

“When a criminal defendant seeks to have his conviction reversed

on appeal, the traditional rule is that he must establish that an error occurred

in the trial-court proceedings and that he was prejudiced by that error.” State

v. Dangler, 2020-Ohio-2765, ¶ 13, citing State v. Perry, 2004-Ohio-297, ¶

14-15; State v. Stewart, 51 Ohio St.2d 86, 93 (1977); Crim.R. 52. However,

the Supreme Court has recognized two exceptions to the “prejudice

component of that rule in the criminal plea context.” Id. at ¶ 14. The first one

applies when a court “fails to explain the constitutional rights that a

defendant waives by pleading guilty or no contest, we presume that the plea

was entered involuntarily and unknowingly, and no showing of prejudice is

required.” Id. The second is “a trial court's complete failure to comply with a

portion of Crim.R.11(C) eliminates the defendant's burden to show

prejudice.” Id. at ¶ 15, citing State v. Sarkozy, 2008-Ohio-509, ¶ 22.

“Aside from these two exceptions, the traditional rule continues to

apply: a defendant is not entitled to have his plea vacated unless he

demonstrates he was prejudiced by a failure of the trial court to comply with

the provisions of Crim.R. 11(C).” Dangler at ¶ 16, citing Nero, 56 Ohio St.3d

106, 108, (1990). “The test for prejudice is ‘whether the plea would have

otherwise been made.’ ” Id.

State v. Peterson, 2024-Ohio-3276, ¶¶ 27-28. The trial court herein explained to the

appellant the constitutional rights he was foregoing in pleading no contest to the charges

against him, and otherwise complied with the provisions of Crim.R. 11(C). Thus, he is not Licking County, Case No. 2024 CA 00023 8

entitled to have his no contest plea to Count Three vacated unless he satisfies his burden

to show prejudice.

ANALYSIS

{¶13} Crim.R. 11 addresses pleas and rights upon pleas, and states in pertinent

part:

(A) Pleas. A defendant may plead not guilty, not guilty by reason

of insanity, guilty or, with the consent of the court, no contest. A plea of not

guilty by reason of insanity shall be made in writing by either the defendant

or the defendant's attorney. All other pleas may be made orally either in-

person or by remote contemporaneous video in conformity with Crim.R.

43(A)….

(B) Effect of Guilty or No Contest Pleas. With reference to the

offense or offenses to which the plea is entered:

(1) The plea of guilty is a complete admission of the defendant's

guilt.

(2) The 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.

(3) When a plea of guilty or no contest is accepted pursuant to

this rule, the court, except as provided in divisions (C)(3) and (4) of this rule,

shall proceed with sentencing under Crim. R. 32.

(C) Pleas of Guilty and No Contest in Felony Cases. Licking County, Case No. 2024 CA 00023 9

(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 either in-person or by

remote contemporaneous video in conformity with Crim.R. 43(A) 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 probation or

for the imposition of community control sanctions at the sentencing hearing.

(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.

(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.

If the indictment contains no specification, and a plea of guilty or no

contest to the charge is accepted, the court shall impose the sentence

provided by law. Licking County, Case No. 2024 CA 00023 10

(4) With respect to all other cases the court need not take testimony

upon a plea of guilty or no contest.

(D) Misdemeanor Cases Involving Serious Offenses. In

misdemeanor cases involving serious offenses the court may refuse to

accept a plea of guilty or no contest, and shall not accept such plea without

first addressing the defendant personally and informing the defendant of the

effect of the pleas of guilty, no contest, and not guilty and determining that

the defendant is making the plea voluntarily….

(F) Negotiated Plea Cases. When a negotiated plea of guilty or no

contest to one or more offenses charged or to one or more other or lesser

offenses is offered, the underlying agreement upon which the plea is based

shall be stated on the record in open court. To the extent required by Article

I, Section 10a of the Ohio Constitution or by the Revised Code, before

accepting the plea, the trial court shall allow an alleged victim of the crime

to raise any objection to the terms of the plea agreement.

{¶14} The trial court engaged in the requisite colloquy with the appellant in

compliance with Crim.R. 11(C). Thus, the pertinent question is whether the appellant has

been prejudiced by some failure on the part of the trial court.

{¶15} The facts in Peterson, supra, are analogous to the facts herein. In Peterson,

the defendant initially pleaded not guilty to several charges, but thereafter changed his

plea. During the change of plea hearing the trial court addressed the counts to which the Licking County, Case No. 2024 CA 00023 11

defendant was pleading guilty, and also discussed the defendant’s agreement to forfeit

$1,032. The defendant was found guilty of the charges for which he changed his plea,

and his sentence included forfeiture of $1,032. The defendant appealed, arguing, inter

alia, that forfeiture was improper because there was no reference to forfeiture in the

written plea agreement, and that the court of appeals should “defer to the written plea and

determine that forfeiture was not part of any agreement.” Id. at ¶38. The court of appeals

disagreed, stating:

Peterson claims that the State failed to comply with the requirements

in the forfeiture statutes in executing the forfeitures. “Questions of the

application and interpretation of a statute present a question of law we

review de novo.” Bandaru v. State, 2024-Ohio-1490, ¶ 8 (10th Dist.), citing

Turner v. Certainteed Corp., 2018-Ohio-3869, ¶ 11. However, Peterson

never objected to any such alleged failures during his change-of-plea

hearing, which means we employ a plain error analysis. State v. West,

2022-Ohio-1556, ¶ 22, citing State v. Rogers, 2015-Ohio-2459, ¶ 21-22.

Under a plain error analysis, “the defendant bears the burden of ‘showing

that but for a plain or obvious error, the outcome of the proceeding would

have been otherwise, and reversal must be necessary to correct a manifest

miscarriage of justice.’ ” Id., quoting State v. Quarterman, 2014-Ohio-4034,

¶ 16. “An appellate court has discretion to notice plain error and therefore

‘is not required to correct it.’ ” Id., citing Rogers at ¶ 23.

Id. at ¶44. Licking County, Case No. 2024 CA 00023 12

{¶16} Neither the appellant nor his trial counsel objected to the trial court’s

repeated references during the change of plea hearing to all three counts, including the

first-degree misdemeanor count. Thus, the appellant must show that but for a plain or

obvious error, the outcome of the proceedings would have been different, and reversal is

necessary to correct a manifest miscarriage of justice. The appellant has failed to meet

this burden, particularly in light of the numerous references to all three counts during the

hearing and the fact that neither the appellant nor his trial counsel sought to correct the

same.

{¶17} The Peterson court went on the state:

. . . Rather, critical in determining whether the forfeiture is permissible is

whether there is evidence that the forfeiture was part of the defendant's plea

agreement. . . . Consequently, even absent an indication in a written plea

agreement that forfeiture is part of the plea, if other evidence shows that the

forfeiture was part of the plea, compliance with statutory requirements for

forfeiture is unnecessary. Therefore, the trial court did not err, let alone

commit plain error, in finding that Peterson's plea included forfeiture of the

$1,032 even though it was not reflected in a written plea agreement.

Written documents aside, Peterson also asserts that there is no

evidence in the record that forfeiture of the $1,032 was part of his guilty

plea. In addition to counts 4 and 5, Peterson also pleaded guilty to counts

9 and 10. Each of those counts included a specification indicating that

Peterson would forfeit $1,032. Moreover, during the change-of-plea

hearing, the court several times alluded to the fact that Peterson's plea Licking County, Case No. 2024 CA 00023 13

agreement included the forfeiture of $1,032 that was confiscated as

contraband when he was arrested. Peterson never objected to the

forfeiture. In fact, in its initial discussion about the forfeiture being part of

Peterson's guilty plea, the court mistakenly stated that the amount of the

forfeiture was $132, which resulted in the following exchange: Defense

counsel: “Is it a $1,032 or $132?” Peterson: “Thousand.” Court: “No, I am

sorry it is $1,032.”

If Peterson did not believe that his plea included a forfeiture of

$1,032, then he had ample opportunity to object but neither he nor his

attorney did so. Therefore, we find the record supports that Peterson

understood that forfeiture of the $1,032 was part of his plea agreement.

Accordingly, we reject his argument that his guilty plea did not include

forfeiture of $1,032.

Id. at ¶48-50.

{¶18} Similarly, the appellant and his attorney had ample opportunity to correct

the trial court regarding his no contest plea to Count Three during the change of plea

hearing. Neither did so. Thus, we may employ a plain error analysis. Under this analysis,

the appellant bears the burden of showing that but for a plain or obvious error the outcome

of the proceeding would have been otherwise, and reversal is necessary to correct a

manifest miscarriage of justice.

{¶19} In this case, even absent a reference to Count Three in the “Admission of

Guilt/No Contest” form, there is sufficient evidence on the record during the January 17,

2024, hearing that the appellant intended to plead to Count Three. The appellant has Licking County, Case No. 2024 CA 00023 14

failed to establish that the outcome of the proceedings would have been different, or that

reversal is necessary to correct a manifest miscarriage of justice. The trial court did not

err, let alone commit plain error, in finding that the appellant’s no contest plea included

Count Three even though it was not reflected in a written form, particularly since the

outcome of the proceeding would not have differed, as the appellant was sentenced to

an aggregate term of one year in prison with 84 days of jail time credit towards that 12

month sentence - precisely the sentence that was jointly recommended by the parties in

the written form and referenced by appellant’s counsel during the change of plea hearing.

CONCLUSION

{¶20} Based upon the foregoing, the appellant’s sole assignment of error is

overruled, and the decision of the Licking County Court of Common Pleas is hereby

affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.