[Cite as State v. Montgomery, 2024-Ohio-2623.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 0072 GREGORY S. MONTGOMERY, II
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Shelby Municipal Court, Case No. 22 CRB 00206
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 10, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN STUDENMUND TODD W. BARSTOW 9 North Mulberry Street 261 West Johnstown Road, Suite 204 Mansfield, Ohio 44902 Columbus, Ohio 43230 Richland County, Case No. 2023 CA 0072 2
Wise, J.
{¶1} Appellant Gregory S. Montgomery, II appeals his conviction and sentence
on one count of Aggravated Menacing, entered in the Shelby Municipal Court following a
plea of no contest.
{¶2} Appellee state of Ohio has not filed a brief in this matter.
STATEMENT OF THE FACTS AND CASE
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} A review of the record reveals that on March 5, 2022, Richland County
sheriff's deputies were dispatched to Superior Street in Shiloh, Richland County, on a
report of a "road rage" incident that had recently occurred. Anthony Hammond told
deputies that he had been driving on Shiloh-Norwalk Road following a blue Toyota RAV4
when that vehicle came to a complete stop in the intersection of Superior Road and Noble
Road. Hammond stated that he exited his vehicle to check on the driver of the Toyota
and that the driver of the Toyota exited his vehicle and pointed a firearm at him, firing one
round into the air. Hammond stated that the Toyota had a temporary tag in the rear
window.
{¶5} Subsequent investigation by the Sheriff's Department revealed that
Appellant Gregory S. Montgomery, II, owned a Toyota matching the description of the
Toyota described by Hammond. Also, Appellant generally matched the physical
description given by Hammond of the driver.
{¶6} On May 6, 2022, Appellant Gregory S. Montgomery, II, was charged by way
of a complaint with Aggravated Menacing, a misdemeanor of the first degree. Richland County, Case No. 2023 CA 0072 3
{¶7} On December 5, 2023, Appellant appeared pro se for trial. After consulting
with standby counsel, Appellant pled no contest to the charge. He stipulated to a finding
of guilt and the trial court found him guilty.
{¶8} The trial court sentenced Appellant to 180 days in jail, with 177 days
suspended, a fine of $400.00, court costs and two years community control.
{¶9} Appellant now appeals, raising the following errors for review:
ASSIGNMENT OF ERROR
{¶10} “I. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEA OF
NO CONTEST TO A FIRST-DEGREE MISDEMEANOR WITHOUT A PROPER
EXPLANATION OF THE CIRCUMSTANCES.”
I.
{¶11} In his sole assignment of error Appellant argues the trial court erred in
accepting his plea without a proper explanation of the circumstances surrounding the
crime. We agree.
{¶12} “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. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996);
see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. To
that end, Crim.R. 11 sets forth certain constitutional and procedural requirements with
which a trial court must comply prior to accepting a guilty or no contest plea.
{¶13} A “trial court is required to inform the defendant only of the effect of the
specific plea being entered,” which, in this case, is a no-contest plea. See State v. Jones, Richland County, Case No. 2023 CA 0072 4
116 Ohio St.3d 211, 2007–Ohio–6093, 877 N.E.2d 677, at ¶ 25. “[T]o satisfy the
requirement of informing a defendant of the effect of a plea, a trial court must inform the
defendant of the appropriate language under Crim.R. 11(B).” Id., paragraph two of the
syllabus. A trial court may advise a defendant of the language of Crim.R. 11(B) “orally or
in writing.” Id. at ¶ 51.
{¶14} Crim.R. 11(B)(2) states that a “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.” Crim.R. 11(B).
{¶15} “A plea of no contest allows the trial court to enter a finding of guilty to the
charged offense following an explanation of the circumstances by the city.” Columbus v.
Gullett, 10th Dist. No. 90AP–2, 1990 WL 98391 (July 12, 1990), citing R.C. § 2937.07.
“Such a plea constitutes an admission of the facts alleged in the complaint.” Id., citing
Crim.R. 11(B)(2).
{¶16} Being an admission of the truth of the facts on which the charges against
him are based, a no-contest plea forecloses a defendant's right to challenge the truth of
those facts in a subsequent appeal from his resulting conviction and sentence. State v.
Bird supra; State v. Evans, Montgomery App. No. 21669, 2007–Ohio–6587 at ¶ 10.
{¶17} An appellate court reviews de novo a trial court's finding of guilt on a no-
contest plea to a misdemeanor. Id. (stating “[o]n appeal, the focus is whether the facts
recited are sufficient to support a conviction of the charged offense”); State v. Erskine,
2015-Ohio-710, 29 N.E.3d 272, ¶ 10. Thus, “[w]e review the explanation of circumstances
to determine if there is sufficient evidence in the record to establish all of the elements of Richland County, Case No. 2023 CA 0072 5
the offense.” Erskine at ¶ 10, citing Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151,
459 N.E.2d 532 (1984) (stating the relevant inquiry is whether the court made the
necessary explanation of circumstances to support a finding of guilty).
{¶18} R.C. §2937.07, the statute governing pleas of no contest in misdemeanor
cases, provides, in pertinent part:
A plea to a misdemeanor offense of “no contest” or words of similar
import shall constitute an admission of the truth of the facts alleged in the
complaint and that the judge or magistrate may make a finding of guilty or
not guilty from the explanation of the circumstances of the offense. If the
offense to which the accused is entering a plea of “no contest” is a minor
misdemeanor, the judge or magistrate is not required to call for an
explanation of the circumstances of the offense, and the judge or magistrate
may base a finding on the facts alleged in the complaint.
{¶19} The Supreme Court of Ohio has clarified that R.C. §2937.07 confers a
substantive right, and “a no contest plea may not be the basis for a finding of guilty without
an explanation of circumstances.” Cuyahoga Falls at 150, 459 N.E.2d 532.
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[Cite as State v. Montgomery, 2024-Ohio-2623.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 0072 GREGORY S. MONTGOMERY, II
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Shelby Municipal Court, Case No. 22 CRB 00206
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 10, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN STUDENMUND TODD W. BARSTOW 9 North Mulberry Street 261 West Johnstown Road, Suite 204 Mansfield, Ohio 44902 Columbus, Ohio 43230 Richland County, Case No. 2023 CA 0072 2
Wise, J.
{¶1} Appellant Gregory S. Montgomery, II appeals his conviction and sentence
on one count of Aggravated Menacing, entered in the Shelby Municipal Court following a
plea of no contest.
{¶2} Appellee state of Ohio has not filed a brief in this matter.
STATEMENT OF THE FACTS AND CASE
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} A review of the record reveals that on March 5, 2022, Richland County
sheriff's deputies were dispatched to Superior Street in Shiloh, Richland County, on a
report of a "road rage" incident that had recently occurred. Anthony Hammond told
deputies that he had been driving on Shiloh-Norwalk Road following a blue Toyota RAV4
when that vehicle came to a complete stop in the intersection of Superior Road and Noble
Road. Hammond stated that he exited his vehicle to check on the driver of the Toyota
and that the driver of the Toyota exited his vehicle and pointed a firearm at him, firing one
round into the air. Hammond stated that the Toyota had a temporary tag in the rear
window.
{¶5} Subsequent investigation by the Sheriff's Department revealed that
Appellant Gregory S. Montgomery, II, owned a Toyota matching the description of the
Toyota described by Hammond. Also, Appellant generally matched the physical
description given by Hammond of the driver.
{¶6} On May 6, 2022, Appellant Gregory S. Montgomery, II, was charged by way
of a complaint with Aggravated Menacing, a misdemeanor of the first degree. Richland County, Case No. 2023 CA 0072 3
{¶7} On December 5, 2023, Appellant appeared pro se for trial. After consulting
with standby counsel, Appellant pled no contest to the charge. He stipulated to a finding
of guilt and the trial court found him guilty.
{¶8} The trial court sentenced Appellant to 180 days in jail, with 177 days
suspended, a fine of $400.00, court costs and two years community control.
{¶9} Appellant now appeals, raising the following errors for review:
ASSIGNMENT OF ERROR
{¶10} “I. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S PLEA OF
NO CONTEST TO A FIRST-DEGREE MISDEMEANOR WITHOUT A PROPER
EXPLANATION OF THE CIRCUMSTANCES.”
I.
{¶11} In his sole assignment of error Appellant argues the trial court erred in
accepting his plea without a proper explanation of the circumstances surrounding the
crime. We agree.
{¶12} “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. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996);
see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. To
that end, Crim.R. 11 sets forth certain constitutional and procedural requirements with
which a trial court must comply prior to accepting a guilty or no contest plea.
{¶13} A “trial court is required to inform the defendant only of the effect of the
specific plea being entered,” which, in this case, is a no-contest plea. See State v. Jones, Richland County, Case No. 2023 CA 0072 4
116 Ohio St.3d 211, 2007–Ohio–6093, 877 N.E.2d 677, at ¶ 25. “[T]o satisfy the
requirement of informing a defendant of the effect of a plea, a trial court must inform the
defendant of the appropriate language under Crim.R. 11(B).” Id., paragraph two of the
syllabus. A trial court may advise a defendant of the language of Crim.R. 11(B) “orally or
in writing.” Id. at ¶ 51.
{¶14} Crim.R. 11(B)(2) states that a “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.” Crim.R. 11(B).
{¶15} “A plea of no contest allows the trial court to enter a finding of guilty to the
charged offense following an explanation of the circumstances by the city.” Columbus v.
Gullett, 10th Dist. No. 90AP–2, 1990 WL 98391 (July 12, 1990), citing R.C. § 2937.07.
“Such a plea constitutes an admission of the facts alleged in the complaint.” Id., citing
Crim.R. 11(B)(2).
{¶16} Being an admission of the truth of the facts on which the charges against
him are based, a no-contest plea forecloses a defendant's right to challenge the truth of
those facts in a subsequent appeal from his resulting conviction and sentence. State v.
Bird supra; State v. Evans, Montgomery App. No. 21669, 2007–Ohio–6587 at ¶ 10.
{¶17} An appellate court reviews de novo a trial court's finding of guilt on a no-
contest plea to a misdemeanor. Id. (stating “[o]n appeal, the focus is whether the facts
recited are sufficient to support a conviction of the charged offense”); State v. Erskine,
2015-Ohio-710, 29 N.E.3d 272, ¶ 10. Thus, “[w]e review the explanation of circumstances
to determine if there is sufficient evidence in the record to establish all of the elements of Richland County, Case No. 2023 CA 0072 5
the offense.” Erskine at ¶ 10, citing Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151,
459 N.E.2d 532 (1984) (stating the relevant inquiry is whether the court made the
necessary explanation of circumstances to support a finding of guilty).
{¶18} R.C. §2937.07, the statute governing pleas of no contest in misdemeanor
cases, provides, in pertinent part:
A plea to a misdemeanor offense of “no contest” or words of similar
import shall constitute an admission of the truth of the facts alleged in the
complaint and that the judge or magistrate may make a finding of guilty or
not guilty from the explanation of the circumstances of the offense. If the
offense to which the accused is entering a plea of “no contest” is a minor
misdemeanor, the judge or magistrate is not required to call for an
explanation of the circumstances of the offense, and the judge or magistrate
may base a finding on the facts alleged in the complaint.
{¶19} The Supreme Court of Ohio has clarified that R.C. §2937.07 confers a
substantive right, and “a no contest plea may not be the basis for a finding of guilty without
an explanation of circumstances.” Cuyahoga Falls at 150, 459 N.E.2d 532.
{¶20} In the case before us, Appellant argues that the trial court accepted his plea
without a sufficient explanation of the facts.
{¶21} Failure to obtain the required explanation of circumstances prior to finding
a defendant guilty was a “procedural error,” and the matter must be remanded to the trial
court to make a finding of guilt or innocence based upon an explanation of circumstances.
Girard v. Giordana, 2018-Ohio-5024.
{¶22} Accordingly, Appellant’s assignment of error is affirmed. Richland County, Case No. 2023 CA 0072 6
{¶23} The judgment of the Shelby Municipal Court, Richland County, Ohio, is
reversed and the matter is remanded for further proceedings consistent with the law and
this opinion.
By: Wise, J.
Gwin, P. J., and
King, J., concur.
JWW/kw 0705