[Cite as State v. Hollobaugh, 2012-Ohio-2620.]
COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 11-AP-0006 ERIC HOLLOBAUGH : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Morgan County Court of Common Pleas, Case No. 10-CR- 0007
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: June 11, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK HOWDYSHELL DEBORAH LAMNECK Prosecuting Attorney Gottlieb, Johnston, Beam & Dal Ponte 19 East Main Street 2640 Glenn Circle McConnelsville, OH 43756 Zanesville, OH 43701-9408 [Cite as State v. Hollobaugh, 2012-Ohio-2620.]
Gwin, P.J.
{¶1} Defendant Eric Hollobaugh appeals a judgment of the Court of Common
Pleas of Morgan County, Ohio, which accepted his plea of guilty to three counts of
trafficking in drugs in the vicinity of a juvenile in violation of RC.2925.03. Appellant
assigns a single error to the trial court:
{¶2} I. THE TRIAL COURT ERRED WHEN IT ACCEPTED THE
APPELLANT’S GUILTY PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY,
AND VOLUNTARILY MADE.”
{¶3} At the change of plea hearing, the court engaged in a Crim. R. 11 colloquy
before accepting appellant’s guilty plea. The court reviewed appellant’s constitutional
rights and ascertained appellant had no mental or physical impairments and was not
under the influence of any alcohol or drug. The court explained the charges against
appellant, advising him that “***you could be sentenced to prison for a definite term of
either two, three, four, five, six, seven, or eight years on each count and fined up to
$15,000.00 on each count***”. The court also advised appellant it could order that he
serve his prison sentences consecutively.
{¶4} Appellant signed a written waiver of rights, which stated, among other
things, that he understood the court could impose more than a minimum prison term, it
could impose a maximum term, and it could run the sentences consecutively. The
waiver also stated the court “may” impose a prison term rather than community control.
The court deferred sentencing until a pre-sentence investigation was completed. Morgan County, Case No. 11-AP-0006 3
{¶5} The offenses to which appellant pled guilty carry a mandatory prison term
and appellant was not eligible for probation or early release. The court informed
appellant of this at the sentencing hearing.
{¶6} Crim. R. 11 (C) states in pertinent part:
(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 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.
A defendant’s plea in a criminal case must be made knowingly,
intelligently, and voluntarily, and if it is not, enforcement of the plea is
unconstitutional under both the United States Constitution and the Ohio
Constitution. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d
450.
The court is required to discuss both constitutional and non-
constitutional rights before accepting a guilty plea. A court’s discussion of
constitutional rights must be in strict compliance with the Rule. See, e.g., State v.
Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E. 2d 621, syllabus; State
v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the
syllabus. However, a court must only substantially comply with the Rule in Morgan County, Case No. 11-AP-0006 4
ensuring the defendant understands his or her non-constitutional rights. State v.
Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, citing State v.
Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Substantial compliance
has been defined to mean under the totality of the circumstances the defendant
subjectively understands the implication of his plea and the rights he is waiving.
Nero at 108.
{¶7} Appellant argues the court did not substantially comply with Crim. R. 11
because at the time it accepted his plea, it had misled him into believing he could be
eligible for probation or parole when in fact he faced a mandatory sentence.
{¶8} In State v. Stewart, 51 Ohio St. 2d 86, 364 N.E. 2d 1163 (1977), the
Supreme Court reviewed a case wherein the defendant was charged with two counts of
aggravated murder with specifications, kidnapping, and aggravated robbery. The
defendant pled to the lesser included offense of murder and the other charges were
dismissed. The defendant was not informed he was not eligible for probation, but the
Supreme Court found the defendant subjectively knew he would not be eligible for
probation, and further, he had not demonstrated prejudice.
{¶9} In Nero, supra the Supreme Court of Ohio found substantial compliance
with Crim.R. 11(C)(2)(a) when the record clearly showed defendant knew that he was
going to be incarcerated and even asked for time to straighten out his affairs.
{¶10} In State v. Abuhashish, 6th Dist. No. WD–07–048, 2008–Ohio–3849, the
court found substantial compliance because the prosecution mentioned the mandatory
sentence at the plea hearing when it asked the court to revoke the defendant’s bond,
and because the written guilty plea correctly stated the offense carried a mandatory Morgan County, Case No. 11-AP-0006 5
sentence. Id. ¶35. But see, State v. Wilson, 55 Ohio App. 2d 64, 379 N.E.2d 273, (1st
Dist. 1978) wherein the court of appeals found the Rule requires an oral dialogue
between the court and the defendant, and a written plea is simply not an adequate
substitute.
{¶11} In State v. Fink, 11th Dist. No. 2006-A-0035, 2007-Ohio-5220, the Court of
Appeals for Ashtabula County found substantial compliance although the court
mistakenly advised the defendant he was technically eligible for probation. The court
found the defendant was subjectively aware he would not be sentenced to probation
when the court informed him a waiver of the pre-sentence investigation report precluded
probation. The defendant had been charged with sixty counts of rape, each with the
specification of a victim less than ten years of age, thirty-seven counts of pandering
obscenity involving a minor, fourth degree felonies, thirty-seven counts of pandering
obscenity involving a minor, second degree felonies, and twenty-two counts of
pandering sexually oriented matters involving a minor. We find as in Stewart, supra, the
severity of the charges alone might convince a defendant he was not going to avoid
prison.
{¶12} Here the offenses charged were not as serious as in Stewart, and unlike
Abuhashish, the guilty plea appellant signed does not state the offenses carry a
mandatory sentence.
{¶13} In State v. Howard, 2nd Dist. No. 06–CA–29, 2008–Ohio–419, the Second
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[Cite as State v. Hollobaugh, 2012-Ohio-2620.]
COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 11-AP-0006 ERIC HOLLOBAUGH : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Morgan County Court of Common Pleas, Case No. 10-CR- 0007
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: June 11, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK HOWDYSHELL DEBORAH LAMNECK Prosecuting Attorney Gottlieb, Johnston, Beam & Dal Ponte 19 East Main Street 2640 Glenn Circle McConnelsville, OH 43756 Zanesville, OH 43701-9408 [Cite as State v. Hollobaugh, 2012-Ohio-2620.]
Gwin, P.J.
{¶1} Defendant Eric Hollobaugh appeals a judgment of the Court of Common
Pleas of Morgan County, Ohio, which accepted his plea of guilty to three counts of
trafficking in drugs in the vicinity of a juvenile in violation of RC.2925.03. Appellant
assigns a single error to the trial court:
{¶2} I. THE TRIAL COURT ERRED WHEN IT ACCEPTED THE
APPELLANT’S GUILTY PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY,
AND VOLUNTARILY MADE.”
{¶3} At the change of plea hearing, the court engaged in a Crim. R. 11 colloquy
before accepting appellant’s guilty plea. The court reviewed appellant’s constitutional
rights and ascertained appellant had no mental or physical impairments and was not
under the influence of any alcohol or drug. The court explained the charges against
appellant, advising him that “***you could be sentenced to prison for a definite term of
either two, three, four, five, six, seven, or eight years on each count and fined up to
$15,000.00 on each count***”. The court also advised appellant it could order that he
serve his prison sentences consecutively.
{¶4} Appellant signed a written waiver of rights, which stated, among other
things, that he understood the court could impose more than a minimum prison term, it
could impose a maximum term, and it could run the sentences consecutively. The
waiver also stated the court “may” impose a prison term rather than community control.
The court deferred sentencing until a pre-sentence investigation was completed. Morgan County, Case No. 11-AP-0006 3
{¶5} The offenses to which appellant pled guilty carry a mandatory prison term
and appellant was not eligible for probation or early release. The court informed
appellant of this at the sentencing hearing.
{¶6} Crim. R. 11 (C) states in pertinent part:
(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 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.
A defendant’s plea in a criminal case must be made knowingly,
intelligently, and voluntarily, and if it is not, enforcement of the plea is
unconstitutional under both the United States Constitution and the Ohio
Constitution. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d
450.
The court is required to discuss both constitutional and non-
constitutional rights before accepting a guilty plea. A court’s discussion of
constitutional rights must be in strict compliance with the Rule. See, e.g., State v.
Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E. 2d 621, syllabus; State
v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the
syllabus. However, a court must only substantially comply with the Rule in Morgan County, Case No. 11-AP-0006 4
ensuring the defendant understands his or her non-constitutional rights. State v.
Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, citing State v.
Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Substantial compliance
has been defined to mean under the totality of the circumstances the defendant
subjectively understands the implication of his plea and the rights he is waiving.
Nero at 108.
{¶7} Appellant argues the court did not substantially comply with Crim. R. 11
because at the time it accepted his plea, it had misled him into believing he could be
eligible for probation or parole when in fact he faced a mandatory sentence.
{¶8} In State v. Stewart, 51 Ohio St. 2d 86, 364 N.E. 2d 1163 (1977), the
Supreme Court reviewed a case wherein the defendant was charged with two counts of
aggravated murder with specifications, kidnapping, and aggravated robbery. The
defendant pled to the lesser included offense of murder and the other charges were
dismissed. The defendant was not informed he was not eligible for probation, but the
Supreme Court found the defendant subjectively knew he would not be eligible for
probation, and further, he had not demonstrated prejudice.
{¶9} In Nero, supra the Supreme Court of Ohio found substantial compliance
with Crim.R. 11(C)(2)(a) when the record clearly showed defendant knew that he was
going to be incarcerated and even asked for time to straighten out his affairs.
{¶10} In State v. Abuhashish, 6th Dist. No. WD–07–048, 2008–Ohio–3849, the
court found substantial compliance because the prosecution mentioned the mandatory
sentence at the plea hearing when it asked the court to revoke the defendant’s bond,
and because the written guilty plea correctly stated the offense carried a mandatory Morgan County, Case No. 11-AP-0006 5
sentence. Id. ¶35. But see, State v. Wilson, 55 Ohio App. 2d 64, 379 N.E.2d 273, (1st
Dist. 1978) wherein the court of appeals found the Rule requires an oral dialogue
between the court and the defendant, and a written plea is simply not an adequate
substitute.
{¶11} In State v. Fink, 11th Dist. No. 2006-A-0035, 2007-Ohio-5220, the Court of
Appeals for Ashtabula County found substantial compliance although the court
mistakenly advised the defendant he was technically eligible for probation. The court
found the defendant was subjectively aware he would not be sentenced to probation
when the court informed him a waiver of the pre-sentence investigation report precluded
probation. The defendant had been charged with sixty counts of rape, each with the
specification of a victim less than ten years of age, thirty-seven counts of pandering
obscenity involving a minor, fourth degree felonies, thirty-seven counts of pandering
obscenity involving a minor, second degree felonies, and twenty-two counts of
pandering sexually oriented matters involving a minor. We find as in Stewart, supra, the
severity of the charges alone might convince a defendant he was not going to avoid
prison.
{¶12} Here the offenses charged were not as serious as in Stewart, and unlike
Abuhashish, the guilty plea appellant signed does not state the offenses carry a
mandatory sentence.
{¶13} In State v. Howard, 2nd Dist. No. 06–CA–29, 2008–Ohio–419, the Second
District found the defendant could not have understood the effect of his plea when the
trial court misadvised him he would be eligible for community control. The court
reasoned the Supreme Court deemed ineligibility for community control sanctions to be Morgan County, Case No. 11-AP-0006 6
a sufficiently important factor in choosing to plead guilty or no contest that it was
incorporated in Crim. R. 11(C)(2)(a) as a subject that must be specifically addressed.
Id. ¶ 25.
{¶14} The Twelfth District reached a similar result in State v. Phillips, 12th Dist.
No. CA2008–05–126, 2009–Ohio–1448, finding where the trial court affirmatively
misinformed the defendant about his eligibility for community control, it had completely
failed to comply with the Rule. Id. ¶19. Likewise, in State v. Farley, 1st Dist. No.
C0100478, 2002–Ohio–1142, the appeals court found a trial court has not substantially
complied with the Rule if it misinforms a defendant about his or her eligibility for
community control. The court found the prospect of probation or community control is a
factor weighing heavily in favor of the decision to enter guilty or a no contest plea.
{¶15} The Farley court opined it could not assume the defendant would have
entered his guilty plea if he had been properly advised. Howard did not discuss whether
the record showed actual prejudice, implying the prejudice is implicit. In Phillips, the
court found it did not need to address the issue of prejudice because failure to properly
advise the defendant of his ineligibility for probation constituted a complete failure to
comply with the requirements of the Rule.
{¶16} We find the trial court erred and misled appellant prior to accepting his
guilty plea. We find further there is no indication appellant subjectively knew he faced a
mandatory sentence. We conclude the court did not substantially comply with the
requirements of Crim. R. 11, and should not have accepted the plea of guilty.
{¶17} The assignment of error is sustained. Morgan County, Case No. 11-AP-0006 7
{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of
Morgan County, Ohio, is vacated, and the cause is remanded to the court for further
proceedings in accord with law and consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. JOHN W. WISE
WSG:clw 0522 [Cite as State v. Hollobaugh, 2012-Ohio-2620.]
IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : ERIC HOLLOBAUGH : : : Defendant-Appellant : CASE NO. 11-AP-0006
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Morgan County, Ohio, is vacated, and the cause is
remanded to the court for further proceedings in accord with law and consistent with this
opinion. Costs to appellee.