State v. Depina

• Court: Ohio Court of Appeals
• Decided: May 27, 2026
• Docket: 31644
• Status: Published

Opinion

[Cite as State v. Depina, 2026-Ohio-1941.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 31644

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DWAYNE DEPINA COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2023-07-2415

DECISION AND JOURNAL ENTRY

Dated: May 27, 2026

CARR, Presiding Judge.

{¶1} Appellant, Dwayne Depina, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands for further proceedings.

I.

{¶2} On July 21, 2023, the Summit County Grand Jury returned a secret indictment

charging Depina with one count of rape and one count of kidnapping in connection to events that

occurred in September 2007. Depina pleaded not guilty to the charges at arraignment. Depina

filed a motion to dismiss on the basis of preindictment delay. After holding a hearing, the trial

court issued a journal denying the motion.

{¶3} Shortly thereafter, Depina reached a plea agreement with the State. Depina entered

a guilty plea to the amended charges of gross sexual imposition and abduction under the protocols

set forth in North Carolina v. Alford, 400 U.S. 25 (1970). Depina also pleaded guilty to community

control violations in two separate cases. 2

{¶4} The trial court imposed an 18-month prison sentence on each of the amended counts

and ordered that those sentences were to be served consecutively, for a total prison sentence of

three years. Depina was also adjudicated a sexually-oriented offender. The trial court further

ordered that Depina’s prison sentence in this case was to be served concurrently with the sentences

for the community control violations in Case. No. CR-2021-06-2003 and Case. No. CR-2023-04-

1319.

{¶5} On appeal, Depina raises four assignments of error.

II.

ASSIGNMENT OF ERROR I

THE APPELLANT’S PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE WHEN HE WAS NOT ADVISED THAT A GUILTY PLEA, PURSUANT TO [NORTH CAROLINA] V. ALFORD [], WAIVED HIS RIGHT TO APPEAL PRETRIAL MOTIONS.

ASSIGNMENT OF ERROR II

THE APPELLANT’S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE WHERE HE WAS NOT ADVISED HE WAS WAIVING HIS RIGHT TO PURSUE HIS PRETRIAL MOTIONS ON APPEAL.

{¶6} In his first and second assignments of error, Depina argues that his Alford plea was

not knowing, intelligent, and voluntary because he was not notified that he would be waiving his

appellate rights in regard to pretrial motions. This Court disagrees.

Background

{¶7} Depina was initially charged with one count of rape and one count of kidnapping,

both charges being felonies of the first degree. As noted above, Depina filed a motion to dismiss

on the basis of preindictment delay. The trial court held an evidentiary hearing on the motion and

then issued a journal entry denying it. 3

{¶8} The parties subsequently reached a plea agreement where Depina agreed to plead

guilty to the amended charges of gross sexual imposition, a felony of the fourth degree, and

abduction, a felony of the third degree. When the parties appeared for the plea hearing, Depina

indicated that he wished to plead under the Alford protocols. The parties acknowledged that an

Alford plea had been agreed upon during the plea negotiation process.

{¶9} During the plea colloquy, the trial court advised Depina of the constitutional rights

that he would be waiving upon entering a guilty plea. Near the end of that exchange, the trial court

further inquired, “And you’ll give up the right to an appeal. Do you understand that?” Depina

responded, “Yes.” The trial court subsequently asked defense counsel if Depina’s desire to enter

an Alford plea was related to appellate rights or issues relating to the trial court’s pretrial rulings.

Defense counsel responded in the negative. Pursuant to the plea agreement, Depina also pleaded

guilty to community control violations in two separate cases, Case. No. CR-2021-06-2003 and

Case. No. CR-2023-04-1319.

Discussion

{¶10} In support of his first assignment of error, Depina argues that the trial court failed

to advise him that his plea would result in the waiver of his right to appeal his pretrial motions.

Depina points to the Fourth District’s decision in State v. Buggs, 2021-Ohio-39 (4th Dist.), where

the court held that an Alford plea is not knowing and intelligent when it is predicated on incorrect

information about appellate rights. Id. at ¶ 1. In his second assignment of error, Depina contends

that while the failure to advise regarding appellate rights amounts to a non-constitutional defect,

there was material prejudice in this case because he had made strong arguments regarding

preindictment delay. 4

{¶11} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”

State v. Veney, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996).

Crim.R. 11(C) requires the trial court to engage in a plea colloquy to ensure that the defendant’s

plea is knowing, intelligent, and voluntary.

{¶12} Under Crim.R. 11(C)(2), a trial court may not accept a guilty plea without first

addressing the defendant personally and:

(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 . . . 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.

{¶13} Generally speaking, a guilty plea represents a break in the chain of events that

preceded it during the course of a criminal prosecution. State v. Gegia, 2004-Ohio-2124, ¶ 18 (9th

Dist.). This Court has held that the failure to specifically address the waiver of appellate rights

with respect to pretrial motions does not render a plea invalid under Crim.R. 11(C). See State v.

Jordan, 2015-Ohio-4354, ¶ 6 (9th Dist.). A trial court’s duty to advise a defendant of his appellate

rights does not arise until sentencing and, thus, does not impact the validity of a guilty plea. Id.,

quoting State v. Meredith, 2011-Ohio-1517, ¶ 6. 5

{¶14} Under the parameters of an Alford plea, “[a]n individual accused of a crime may

voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even

if he is unwilling or unable to admit his participation in the acts constituting the crime.” North

Carolina v. Alford, 400 U.S. 25, 37 (1970). This Court has recognized “[a]n Alford plea is merely

a species of guilty plea where the trial court accepts the guilty plea of the defendant “despite the

defendant’s protestations of innocence.” (Internal citations and quotations omitted.) State v.

Krieg, 2004-Ohio-5174, ¶ 8-9 (9th Dist.).

{¶15} In this case, Depina has not demonstrated that his plea was not knowing, intelligent,

and voluntary. As an initial matter, the trial court was not obligated to discuss Depina’s appellate

rights regarding his pretrial motions at the plea colloquy. See Jordan at ¶ 6. Notably, however,

the record here reveals that the trial court did notify Depina that he would be waiving his appellate

rights, and Depina indicated that he understood. In fact, the trial court asked a follow-up question

regarding whether Depina’s desire to enter an Alford plea was related to the trial court’s pretrial

rulings, and defense counsel responded in the negative. Furthermore, to the extent that Depina

analogizes this case to the circumstances confronted by the Fourth District in Buggs, 2021-Ohio-

39, we find the two cases to be distinguishable, given that Buggs involved a situation where the

trial court made an incorrect statement of law with respect to the defendant’s appellate rights. Id.

at ¶ 11. Under these circumstances, Depina’s first and second assignments of error are without

merit.

ASSIGNMENT OF ERROR III

TRIAL COUNSEL WAS INEFFECTIVE FOR PERMITTING THE APPELLANT TO PLEAD GUILTY AS OPPOSED TO NO CONTEST. 6

{¶16} In his third assignment of error, Depina argues that trial counsel rendered

ineffective assistance by advising Depina to plead guilty when a plea of no contest would have

allowed him to appeal the trial court’s rulings on his pretrial motions. This Court disagrees.

{¶17} The standard for reviewing an ineffective assistance claim was established in

Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of

counsel, a criminal defendant must show that “counsel’s performance fell below an objective

standard of reasonableness and that prejudice arose from counsel’s performance.” State v.

Reynolds, 80 Ohio St.3d 670, 674 (1998), citing Strickland at 687.

{¶18} “A defendant who pleads guilty waives the right to raise issues related to ineffective

assistance of counsel on appeal unless they resulted in an involuntary plea.” State v. Herman,

2024-Ohio-541, ¶ 4 (9th Dist.).

When the Strickland test is applied to guilty pleas, the defendant must first show that counsel’s performance was deficient. Next, the defendant must show that there is a reasonable probability that but for counsel’s errors, he would not have pleaded guilty. [T]he mere fact that, if not for the alleged ineffective assistance, the defendant would not have entered the guilty plea, is not sufficient to establish the necessary connection between the ineffective assistance and the plea; instead, the ineffective assistance will only be found to have affected the validity of the plea when it precluded the defendant from entering the plea knowingly and voluntarily.

State v. Mills, 2019-Ohio-2205, ¶ 10 (9th Dist.), quoting State v. Bravo, 2017-Ohio-272, ¶ 9 (9th

Dist.), quoting Gegia, 2004-Ohio-2124, ¶ 17 (9th Dist.).

{¶19} Depina’s ineffective assistance claim fails because he has not established that

defense counsel’s performance was deficient. A properly licensed attorney in Ohio is presumed

competent. State v. Gondor, 2006-Ohio-6679, ¶ 62. This case involves a scenario where Depina

was originally charged with two first-degree felonies. Defense counsel significantly limited

Depina’s sentencing exposure by negotiating a plea agreement where Depina pleaded guilty to a

third-degree felony and a fourth-degree felony, while also maintaining his protestations of 7

innocence under the Alford protocols. Although Depina now argues that a no contest plea would

have allowed him to challenge the trial court’s pretrial rulings, the trial court notified Depina at

the plea colloquy that a guilty plea would result in the waiver of his appellate rights. Depina

indicated that he understood. The record is devoid of any other evidence indicating that defense

counsel’s performance was deficient. It follows that Depina’s third assignment of error is without

{¶20} Depina’s third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES.

{¶21} In his fourth assignment of error, Depina argues that the trial court failed to make

the requisite findings at the sentencing hearing in order to impose consecutive sentences.

{¶22} It is well settled that, “[i]n order to impose consecutive terms of imprisonment, a

trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 2014-Ohio-3177, syllabus.

{¶23} We are compelled to sustain Depina’s fourth assignment of error. A review of the

sentencing transcript reveals that the trial court failed to make findings in support of its decision

to impose consecutive sentences. The trial court also made no mention of findings in its sentencing

entry. The State has conceded error on this point. Under these circumstances, where the trial court

failed to make the requisite findings under R.C. 2929.14(C)(4), this matter must be remanded for

the trial court to make the appropriate findings in support of its decision to impose consecutive

sentences. See State v. Weber, 2024-Ohio-5901, ¶ 8-9 (9th Dist.). 8

{¶24} “When this Court concludes that a trial court erred in making the findings required

to impose consecutive sentences . . . the scope of the remand is limited to that issue.” (Internal

citations omitted.) State v. Gales, 2023-Ohio-2753, ¶5 (9th Dist.). Here, the trial court must make

the required findings and then incorporate those findings into its sentencing entry. Depina’s fourth

assignment of error is sustained to the extent discussed above.

III.

{¶25} Depina’s first, second, and third assignments of error are overruled. The fourth

assignment of error is sustained to the extent discussed above. The judgment of the Summit

County Court of Common Pleas is affirmed in part, reversed in part, and the matter is remanded

for further proceedings consistent with this decision.

Judgment affirmed, in part, reversed, in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30. 9

Costs taxed equally to both parties.

DONNA J. CARR FOR THE COURT

HENSAL, J. SUTTON, J. CONCUR.

APPEARANCES:

MARY CATHERINE CORRIGAN, Attorney at Law, for Appellant.

ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee.