[Cite as State v. McKenzie, 2023-Ohio-1178.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-22-33
v.
JOHN MCKENZIE, OPINION DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 22-CR-0137
Judgment Affirmed
Date of Decision: April 10, 2023
APPEARANCES:
Christopher Bazeley for Appellant
Thomas Meagher V. for Appellee Case No. 3-22-33
ZIMMERMAN, J.
{¶1} Defendant-appellant, John McKenzie (“McKenzie”), brings this appeal
from the September 7, 2022 judgment of the Crawford County Common Pleas Court
sentencing him to six months in prison after McKenzie pled guilty to, and was
convicted of, Violating a Protection Order. On appeal, McKenzie argues that his
plea was not knowingly or intelligently given, and that the trial court failed to advise
him of his rights pursuant to Crim.R. 5 at arraignment. For the reasons that follow,
we affirm the judgment of the trial court.
Background
{¶2} On July 20, 2022, McKenzie entered into a written, negotiated plea
agreement wherein he agreed to plead guilty to Violating a Protection Order in
violation of R.C. 2919.27(A)(2), a fifth degree felony. In exchange for his guilty
plea, the State agreed to dismiss the Criminal Trespass charge pending against him.
The trial court conducted a Crim.R. 11 dialogue with McKenzie and determined that
he was entering a knowing, intelligent, and voluntary guilty plea. McKenzie’s plea
was accepted and he was found guilty. As a result of his conviction, McKenzie was
sentenced to serve six months in prison. McKenzie now appeals the trial court’s
judgment entry of sentence, asserting the following assignments of error for our
review.
-2- Case No. 3-22-33
Assignment of Error No. 1 McKenzie’s guilty plea was not knowingly or intelligently given.
Assignment of Error No. 2 The trial court erred when it failed to advise McKenzie of his Crim.R. 5 rights at arraignment.
First Assignment of Error
{¶3} In his first assignment of error, McKenzie argues that his plea was not
knowing or intelligent.
Relevant Authority
{¶4} “All guilty pleas must be made knowingly, voluntarily, and
intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-
Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “Failure on any
of those points renders enforcement of the plea unconstitutional under both the
United States Constitution and the Ohio Constitution.” Engle at 527.
{¶5} Criminal Rule 11(C)(2), which governs guilty pleas for felony-level
offenses, provides:
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.
-3- Case No. 3-22-33
(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.
{¶6} 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 the
defendant’s constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, ¶ 31. When a trial court fails to strictly comply with this duty, the defendant’s
plea is invalid. Id. However, a trial court is only required to substantially comply
with the non-constitutional notifications in Crim.R. 11(C)(2)(a) and (b). Id. at ¶ 14-
17.
{¶7} An appellate court reviews the substantial-compliance standard based
upon the totality of the circumstances surrounding the defendant’s plea and
determines whether he subjectively understood the implications of his plea and the
rights he waived. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶
20. “Furthermore, a defendant who challenges his guilty plea on the basis that it was
not knowingly, intelligently, and voluntarily made must show a prejudicial effect. *
-4- Case No. 3-22-33
* * The test is whether the plea would have otherwise been made.” State v. Nero,
56 Ohio St.3d 106, 108 (1990).
Analysis
{¶8} McKenzie argues that his Crim.R. 11 dialogue with the trial court, and
his written plea agreement, failed to inform him that a guilty plea was a complete
admission of guilt pursuant to Crim.R. 11(C)(2)(b). After reviewing the transcript
of the Crim.R. 11 dialogue, we agree that McKenzie was not informed that his guilty
plea was a complete admission of guilt at the plea hearing.1 Nevertheless, there was
language in McKenzie’s written plea agreement regarding the effect of his plea.
However, McKenzie contends that the statement in his written plea agreement was
not sufficient to render his plea knowing and intelligent.
{¶9} In our review of the matter, we continue to emphasize that a trial court’s
“‘[l]iteral compliance with Crim.R. 11, in all respects, remains preferable to inexact
plea hearing recitations.’” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶
29, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 19, fn. 2.
Nevertheless, “literal compliance” is not the standard; rather, the standard for
evaluating whether a defendant was informed of the effect of his plea is “substantial
compliance.” State v. Jones, 3d Dist. Crawford No. 3-19-11, 2020-Ohio-3919, ¶ 11.
1 We note that the Crim.R. 11 hearing transcript is mislabeled in the record as “CONTINUED SENTENCING” on September 7, 2022. According to the record, this is inaccurate, as the “continued plea hearing” was held July 20, 2022.
-5- Case No. 3-22-33
{¶10} Importantly, Crim.R. 11(C)(2)(b)’s requirement to be notified of the
effect of a plea may be satisfied either orally or in writing. Jones at ¶ 14. Here,
McKenzie’s written plea agreement stated, “By pleading, I admit the truth of the
facts and circumstances alleged.”2 (Doc. No. 14). We have previously held that
nearly identical language in a written plea agreement constituted substantial
compliance with Crim.R. 11(C)(2)(b)/(B)(1). Id. (“Specifically, the written-plea
agreement reflects that Jones acknowledged that “[b]y pleading, [he] admit[s] the
truth of the facts and circumstances alleged[.]”).
{¶11} Moreover, even if the trial court failed to substantially comply with
Crim.R. 11(C)(2)(b), McKenzie has to demonstrate prejudice in this matter and he
is entirely unable to do so. See State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415.
McKenzie has presented no evidence that he would not have entered his plea if the
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[Cite as State v. McKenzie, 2023-Ohio-1178.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-22-33
v.
JOHN MCKENZIE, OPINION DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 22-CR-0137
Judgment Affirmed
Date of Decision: April 10, 2023
APPEARANCES:
Christopher Bazeley for Appellant
Thomas Meagher V. for Appellee Case No. 3-22-33
ZIMMERMAN, J.
{¶1} Defendant-appellant, John McKenzie (“McKenzie”), brings this appeal
from the September 7, 2022 judgment of the Crawford County Common Pleas Court
sentencing him to six months in prison after McKenzie pled guilty to, and was
convicted of, Violating a Protection Order. On appeal, McKenzie argues that his
plea was not knowingly or intelligently given, and that the trial court failed to advise
him of his rights pursuant to Crim.R. 5 at arraignment. For the reasons that follow,
we affirm the judgment of the trial court.
Background
{¶2} On July 20, 2022, McKenzie entered into a written, negotiated plea
agreement wherein he agreed to plead guilty to Violating a Protection Order in
violation of R.C. 2919.27(A)(2), a fifth degree felony. In exchange for his guilty
plea, the State agreed to dismiss the Criminal Trespass charge pending against him.
The trial court conducted a Crim.R. 11 dialogue with McKenzie and determined that
he was entering a knowing, intelligent, and voluntary guilty plea. McKenzie’s plea
was accepted and he was found guilty. As a result of his conviction, McKenzie was
sentenced to serve six months in prison. McKenzie now appeals the trial court’s
judgment entry of sentence, asserting the following assignments of error for our
review.
-2- Case No. 3-22-33
Assignment of Error No. 1 McKenzie’s guilty plea was not knowingly or intelligently given.
Assignment of Error No. 2 The trial court erred when it failed to advise McKenzie of his Crim.R. 5 rights at arraignment.
First Assignment of Error
{¶3} In his first assignment of error, McKenzie argues that his plea was not
knowing or intelligent.
Relevant Authority
{¶4} “All guilty pleas must be made knowingly, voluntarily, and
intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-
Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “Failure on any
of those points renders enforcement of the plea unconstitutional under both the
United States Constitution and the Ohio Constitution.” Engle at 527.
{¶5} Criminal Rule 11(C)(2), which governs guilty pleas for felony-level
offenses, provides:
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.
-3- Case No. 3-22-33
(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.
{¶6} 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 the
defendant’s constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, ¶ 31. When a trial court fails to strictly comply with this duty, the defendant’s
plea is invalid. Id. However, a trial court is only required to substantially comply
with the non-constitutional notifications in Crim.R. 11(C)(2)(a) and (b). Id. at ¶ 14-
17.
{¶7} An appellate court reviews the substantial-compliance standard based
upon the totality of the circumstances surrounding the defendant’s plea and
determines whether he subjectively understood the implications of his plea and the
rights he waived. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶
20. “Furthermore, a defendant who challenges his guilty plea on the basis that it was
not knowingly, intelligently, and voluntarily made must show a prejudicial effect. *
-4- Case No. 3-22-33
* * The test is whether the plea would have otherwise been made.” State v. Nero,
56 Ohio St.3d 106, 108 (1990).
Analysis
{¶8} McKenzie argues that his Crim.R. 11 dialogue with the trial court, and
his written plea agreement, failed to inform him that a guilty plea was a complete
admission of guilt pursuant to Crim.R. 11(C)(2)(b). After reviewing the transcript
of the Crim.R. 11 dialogue, we agree that McKenzie was not informed that his guilty
plea was a complete admission of guilt at the plea hearing.1 Nevertheless, there was
language in McKenzie’s written plea agreement regarding the effect of his plea.
However, McKenzie contends that the statement in his written plea agreement was
not sufficient to render his plea knowing and intelligent.
{¶9} In our review of the matter, we continue to emphasize that a trial court’s
“‘[l]iteral compliance with Crim.R. 11, in all respects, remains preferable to inexact
plea hearing recitations.’” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶
29, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 19, fn. 2.
Nevertheless, “literal compliance” is not the standard; rather, the standard for
evaluating whether a defendant was informed of the effect of his plea is “substantial
compliance.” State v. Jones, 3d Dist. Crawford No. 3-19-11, 2020-Ohio-3919, ¶ 11.
1 We note that the Crim.R. 11 hearing transcript is mislabeled in the record as “CONTINUED SENTENCING” on September 7, 2022. According to the record, this is inaccurate, as the “continued plea hearing” was held July 20, 2022.
-5- Case No. 3-22-33
{¶10} Importantly, Crim.R. 11(C)(2)(b)’s requirement to be notified of the
effect of a plea may be satisfied either orally or in writing. Jones at ¶ 14. Here,
McKenzie’s written plea agreement stated, “By pleading, I admit the truth of the
facts and circumstances alleged.”2 (Doc. No. 14). We have previously held that
nearly identical language in a written plea agreement constituted substantial
compliance with Crim.R. 11(C)(2)(b)/(B)(1). Id. (“Specifically, the written-plea
agreement reflects that Jones acknowledged that “[b]y pleading, [he] admit[s] the
truth of the facts and circumstances alleged[.]”).
{¶11} Moreover, even if the trial court failed to substantially comply with
Crim.R. 11(C)(2)(b), McKenzie has to demonstrate prejudice in this matter and he
is entirely unable to do so. See State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415.
McKenzie has presented no evidence that he would not have entered his plea if the
trial court had used the actual language contained in Crim.R. 11 regarding the effect
of his guilty plea. State v. Lindemayer, 5th Dist. Licking No. 08-CA-142, 2009-
Ohio-3982, ¶ 77. Furthermore, McKenzie did not assert a claim of actual innocence
at the plea hearing.
A defendant who has entered a guilty plea without asserting actual innocence is presumed to understand that he has completely admitted his guilt. In such circumstances, a court’s failure to inform the defendant of the effect of his guilty plea as required by Crim.R. 11 is presumed not to be prejudicial.
2 The written plea agreement was signed by McKenzie and his attorney.
-6- Case No. 3-22-33
Griggs, 103 Ohio St.3d 85, at syllabus. McKenzie has shown us nothing in the
record that would overcome the presumption that the failure to orally inform him of
the effect of his plea was prejudicial in this instance.
{¶12} In sum, based on the record before us, we find that McKenzie has not
demonstrated that his plea was anything less than knowing, intelligent, and
voluntary. For all of these reasons, McKenzie’s first assignment of error is
overruled.
Second Assignment of Error
{¶13} In his second assignment of error, McKenzie argues that the trial court
erred by failing to advise him of his rights pursuant to Crim.R. 5 at the arraignment
hearing. However, by pleading guilty, McKenzie “waive[d] all appealable orders
except for a challenge as to whether the defendant made a knowing, intelligent, and
voluntary acceptance of the plea.” State v. Bowers, 3d Dist. Union No. 14-11-12,
2012-Ohio-1585, ¶ 12. This includes any challenges to alleged deficiencies at
arraignment. Id.
{¶14} Given that we have determined that McKenzie’s plea was not invalid,
he has waived his challenge to any purported errors in his arraignment. Id.
Therefore, his second assignment of error is overruled.
-7- Case No. 3-22-33
Conclusion
{¶15} Having found no error prejudicial to McKenzie in the particulars
assigned and argued, we affirm the judgment of the Crawford County Common
Pleas Court.
WILLAMOWSKI and WALDICK, J.J., concur.
-8-