State v. Olmos-Silva

Opinion

[Cite as State v. Olmos-Silva, 2026-Ohio-2682.]

IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT DELAWARE COUNTY, OHIO

STATE OF OHIO, Case No. 25 CAA 12 0116

Plaintiff - Appellee Opinion And Judgment Entry

-vs- Appeal from the Delaware County Court of Common Pleas, Case No. 25 CRI 02 0112 CRISPULO OLMOS-SILVA, Judgment: Affirmed Defendant - Appellant Date of Judgment Entry: July 13, 2026

BEFORE: Andrew J. King; Robert G. Montgomery; Kevin W. Popham, Judges

APPEARANCES: MELISSA A. SCHIFFEL, Delaware County Prosecuting Attorney by KATHERYN L. MUNGER, for Plaintiff-Appellee; JONATHAN W. KLEIN, for Defendant-Appellant.

Montgomery, J.

{¶1} Defendant-Appellant, Crispulo Olmos-Silva, (“Appellant”) appeals from the

judgment of the Delaware County Court of Common Pleas finding him guilty of burglary and

sentencing him to four to six years in prison. For the reasons below, we AFFIRM.

BACKGROUND FACTS

{¶2} On December 2, 2022, a residential burglary occurred in Powell, Ohio,

Delaware County. Appellant broke a window to the home, entered the residence, and took

various items belonging to the homeowners, including a Prada purse valued at approximately $4,500. Thereafter, in a separate case in another jurisdiction, DNA was collected during a

burglary investigation that ultimately matched Appellant’s DNA. The DNA connected

Appellant to the Powell burglary. Based upon that information, Appellant was charged with

burglary, a felony of the second degree, and an additional count that was later dismissed

pursuant to a plea agreement. Appellant initially pled not guilty.

{¶3} Appellant is a citizen of Chile and does not read or write English fluently. A

certified Spanish interpreter was utilized throughout the trial court proceedings and Appellant

was appointed a Spanish speaking attorney. On August 25, 2025, after plea negotiations, an

initial change of plea hearing was held. The State offered a recommended sentence of three

years in prison. In exchange, the State agreed to dismiss Count Two of the indictment and to

remain silent at sentencing, other than provide information regarding Appellant's criminal

history. However, Appellant declined to enter the anticipated guilty plea. Defense counsel

stated that the parties reached a plea agreement but because it was not yet finalized Appellant

would not enter his plea that day. The State informed Appellant and his counsel that any

prior offer was null and void but agreed to hold the current offer open for approximately one

week for Appellant to reconsider. The trial court subsequently scheduled the matter for a jury

trial, and established a deadline of October 6, 2025, to enter any plea.

{¶4} On October 2, 2025, before the plea deadline but well beyond one week after

the initial plea hearing, Appellant decided to plead guilty. On October 14, 2025, the second

change of plea hearing took place. The State stated on the record that the three-year sentence

recommendation was no longer available. The court explained the potential penalties

associated with the offense, including the indefinite sentencing structure applicable to second-

degree felonies. The court clearly informed Appellant that sentencing would be up to the court and if the court did not follow a particular recommendation, that was not a basis to

withdraw his guilty plea. Sent. Tr., at p. 15.

{¶5} Appellant stated he understood and tendered his guilty plea both orally and in

writing. Appellant was provided a Spanish copy of the plea form, he discussed his rights and

the consequences of the plea with his attorney, and the certified Spanish interpreter was

present. Change of Plea 2 Tr., p. 8. Appellant admitted that on the day in question he broke

a window, entered the residence, and placed items into a pillowcase before fleeing from the

home after the alarm system was triggered. The trial court accepted the guilty plea, found

Appellant guilty of burglary, and dismissed Count Two of the indictment.

{¶6} Subsequently, at the sentencing hearing, Appellant personally addressed the

court and apologized to the victims. Appellant and his counsel indicated that they believed

the original joint recommendation for three years in prison was still in effect. The trial court

clarified that the plea agreement only required the State to stand silent at sentencing and that

the ultimate sentence remained entirely within the court's discretion, as was discussed at the

change of plea hearing. The court ultimately sentenced Appellant to 4-6 years in prison with

175 days of jail time credit.

ASSIGNMENTS OF ERROR

{¶7} “I. THE PLEA WAS NOT KNOWINGLY AND INTELLIGENTLY ENTERED BECAUSE THE RECORD DEMONSTRATES CONFUSION AND INCONSISTENCY REGARDING THE PLEA AGREEMENT AND SENTENCING EXPECTATIONS.”

{¶8} “II. THE TRIAL COURT ERRED BY RELYING ON UNPROVEN ALLEGATIONS OF OTHER CRIMINAL CONDUCT WHEN IMPOSING SENTENCE, IN VIOLATION OF THE SENTENCING PRINCIPLES SET FORTH IN R.C. 2929.11 AND R.C. 2929.12.” Crim.R.11 - Guilty Pleas

{¶9} In his first assignment of error, Appellant claims his plea was not knowingly,

intelligently and voluntarily made because Appellant was confused about the sentence he

would receive. We disagree.

{¶10} When reviewing a plea’s compliance with Criminal Rule 11(C), we apply a de

novo standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109 (1990); State v. Lebron, 2020-

Ohio-1507, ¶ 9 (8th Dist.) State v. Groves, 2019-Ohio-5025, ¶ 7 (5th Dist.). This Court has

emphasized:

The entry of a guilty plea is a grave decision by an accused to dispense with a

trial and allow the state to obtain a conviction without following the otherwise

difficult process of proving his guilt beyond a reasonable doubt. See Machibroda

v. United States, 368 U.S. 487 (1962). A plea of guilty constitutes a complete

admission of guilt. Crim.R. 11(B)(1). “By entering a plea of guilty, the accused

is not simply stating that he did the discreet acts described in the indictment; he

is admitting guilt of a substantive crime.”

State v. Hinkle, 2024-Ohio-5499, ¶¶ 24-25 (5th Dist.), appeal not allowed, 2025-

Ohio-857, citing United States v. Broce, 488 U.S. 563, 570 (1989).

As such, guilty pleas must be knowingly, intelligently and voluntarily made otherwise the

plea is invalid. Hinkle, ¶¶ 24-25. Crim. R. 11(C)(2) 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 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.

{¶11} Thus, before accepting a felony plea, the court must orally advise a defendant

that the plea waives: (1) the right to a jury trial; (2) the right to confront one's accusers; (3) the

right to compulsory process to obtain witnesses; (4) the right to require the state to prove guilt

beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination.” State

v. Veney, 2008-Ohio-5200, ¶ 31. When a trial court fails to strictly comply with this duty, a

defendant's plea is invalid. Id.

{¶12} For non-constitutional rights, the trial court must “substantially comply,”

provided no prejudicial effect occurs before a guilty plea is accepted. State v. Stewart, 51 Ohio St.2d 86 (1977); State v. Nero, 56 Ohio St.3d 106 (1990); State v. Schultz, 2013-Ohio-2218 (5th

Dist.). The non-constitutional rights that the defendant must be informed of are: (1) the nature

of the charges; (2) the maximum penalty involved, which includes, if applicable, an

advisement on post-release control; (3) if applicable, that the defendant is not eligible for

probation or the imposition of community control sanctions; and (4) that after entering a

guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing.

Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 2008-Ohio-509, ¶ 19-26 (finding that

defendant’s plea was not knowing and voluntary).

{¶13} Substantial compliance means that, under the totality of the circumstances, a

defendant subjectively understands the implications of his plea and the rights he is waving.

State v. Hendershot, 2017-Ohio-8112, ¶¶ 26-27 (5th Dist.); Hinkle, ¶¶ 24-25 (stating the trial court

need only “substantially comply” with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C), citing State v. Ballard, 66 Ohio St.2d 473, 475 (1981), citing State

v. Stewart, 51 Ohio St.2d 86 (1977).

{¶14} Here, the change of plea hearing transcript reveals the trial court fully complied

with Crim. R. 11(C)(2) and informed Appellant of each constitutional and non-constitutional

right he was waiving by pleading guilty. As stated, Appellant’s counsel was fluent in Spanish,

a certified Spanish interpreter was present throughout the trial court proceedings, and his

waiver form was provided in Spanish. The trial court informed Appellant regarding the

maximum penalties for his offense, even providing examples so Appellant clearly understood

the possible “range,” and expressly stated that it was not required to follow any joint

recommendation by the State. Appellant was present when the prosecutor explained the

substance of the negotiations and offers in open court, Appellant discussed his options with his counsel, and the court discussed the consequences of a plea and guilty verdict, including

that Appellant risked deportation and exclusion from reentry to the United States. The court

fully discussed post-release control and gave Appellant the opportunity to speak to the court.

{¶15} The court asked Appellant “[h]as anybody threatened you to get you to plea?”

Plea Tr., pp. 7, 11. The interpreter replied “No, no, no one, no.” Id. Appellant also executed

a waiver of rights form after his counsel went over the document with him. Id. at 8. Although

Appellant now argues he misunderstood the expected sentence, and said misunderstanding

invalidates his plea, it is clear that Appellant made an informed plea, with full knowledge of

the consequences. See State v. Stumpf, 32 Ohio St.3d 95, 104, (1987). The following exchange

took place at the change of plea hearing:

THE COURT: Okay. So do you understand that when it comes time for

sentence, I'll listen to everybody's recommendations, but, at the end of the day,

sentencing is completely up to me? And as long as I sentence you for what's

available for a felony of the second degree, you cannot withdraw your guilty

plea simply because I did not follow any one person's recommendation; do you

understand that?

THE INTERPRETER: I just hope that you'd be a little bit more understanding

of my case, Your Honor.

THE COURT: Okay. I understand, but you do understand that when it comes

time for sentencing, again, I don't have to follow anybody's recommendation?

THE INTERPRETER: I know, Your Honor.

Plea Tr., p. 15. {¶16} Thus, while Appellant is now disappointed, there was no confusion on the

record at the time of his guilty plea. The following exchange at the subsequent sentencing

hearing provides further evidence that Appellant and his counsel knew the sentence was not

guaranteed:

MS. OSORIO JONES: Thank you, Your Honor.

I think some of the confusion and disappointment on our end, Your Honor, is

because originally we did have a plea agreement where we were making a

recommendation. We did appear that day and were not able to proceed. At that

time, I do believe it was the decision of another colleague to take that

opportunity off the table.

THE COURT: Okay.

MS. OSORIO JONES: And so that's where we are today with the State

remaining silent and having understood of course that the sentence was always

at the Court's discretion, we were never guaranteed those three years.

THE COURT: Right.

Sentencing Tr., p. 17.

{¶17} Moreover, it is well-settled in Ohio that a trial court is not bound by plea

agreements, including a jointly recommended sentence. State v. Elliott, 2021-Ohio-424, ¶ 8

(1st Dist.); State v. Jefferson, 2012-Ohio-148, ¶ 50 (5th Dist.). “A trial court is not bound to

follow a sentence that has been jointly recommended by the parties.” State ex rel. Duran v.

Kelsey, 106 Ohio St.3d 58 (2006). A “recommended” sentence is just as it sounds: “a

nonbinding recommendation to the court, which the court is not required to accept or

comment on.” State v. Link, 2022-Ohio-2067, ¶ 54 (5th Dist.), quoting State v. Harvey, 2019- Ohio-715, ¶ 7 (8th Dist.); State v. Vandyne, 2022-Ohio-2640, ¶ 15 (5th Dist.) (trial courts may

reject plea agreements and are simply not bound by a jointly recommended sentence). The

court is free to impose a greater sentence than recommended or agreed to by the State as long

as the defendant is warned of the applicable maximum penalties and the sentencing court was

itself not a party to the agreement. State v. Curtis, 2019-Ohio-2587, ¶ 18 (5th Dist.); State ex rel.

Sakalosh v. Durkin, 2009-Ohio-1512, ¶ 8 (7th Dist.).

{¶18} The trial court complied with its duty and warned Appellant regarding the

potential penalties associated with his crime and his plea of guilty. Appellant was provided

with all the necessary protections to ensure he understood what was happening and to what

he was pleading. There is nothing in the record to suggest that Appellant’s guilty plea was

anything but knowingly, voluntarily, and intelligently made. As such, Appellant’s first

assignment of error is overruled.

SENTENCING

{¶19} In his second assignment of error, Appellant argues that it was improper for the

court at sentencing to reference pending criminal charges in other states and conclude that the

Appellant had been involved in a string of burglaries in various jurisdictions. Appellant

claims that these unproven allegations of other criminal conduct were improperly considered.

Again, we disagree.

{¶20} This court reviews felony sentences using the standard of review set forth in

R.C. 2953.08. State v. Marcum, 2016-Ohio-1002, ¶ 22; State v. Howell, 2015-Ohio-4049, ¶ 31

(5th Dist.). Subsection (G)(2) sets forth this court's standard of review as follows: (2) The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence that

is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing. The appellate court's standard

for review is not whether the sentencing court abused its discretion. The

appellate court may take any action authorized by this division if it clearly and

convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if

any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶21} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is

required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be established.” Hinkle,

¶¶ 7-8, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶22} Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently

weigh the evidence in the record and substitute its judgment for that of the trial court

"concerning the sentence that best reflects compliance with R.C. 2929.11 [purposes and

principles of felony sentencing] and 2929.12 [seriousness and recidivism factors]." Hinkle, ¶ 9. Only if a trial court imposes a sentence based on factors or considerations extraneous to those

permitted by R.C. 2929.11 and 2929.12, is the sentence contrary to law. Id.

{¶23} More specifically, the court must consider additional factors concerning the

seriousness of the specific offense, compared to conduct normally constituting the offense,

and factors indicating whether the offender is likely to commit future crimes. R.C.

2929.12(B)-(E). A sentence is not clearly and convincingly contrary to law where the trial

court considers the principles and purposes of R.C. 2929.11, as well as the factors listed in

R.C. 2929.12, properly imposes post release control, and sentences the defendant within the

permissible statutory range. State v. Morris, 2021-Ohio-2646, ¶ 90 (5th Dist.), rev'd on other

grounds, 2022-Ohio-4609, quoting State v. Dinka, 2019-Ohio-4209, ¶ 36 (12th Dist.). Thus, a

trial court has discretion to impose a sentence within the statutory range, and is not required

to make any findings or give its reasons for imposing maximum or more than minimum

sentences. State v. Sullens, 2022-Ohio-2305, ¶ 15 (5th Dist.), quoting State v. King, 2013-Ohio-

2021, ¶ 45 (2d Dist.).

{¶24} A review of the sentencing transcript reveals that the trial court acted

appropriately in sentencing Appellant. The burglary carried a presumption of prison, with a

minimum of two years and a maximum of eight years. As stated above, Appellant was

sentenced to 4 to 6 years in prison, more than the minimum but less than the maximum with

the opportunity for release in only 4 years. The court stated:

I am mindful that this is a felony of the second degree that carries a presumption

for prison, but I have read everything that’s been given to the Court in regards

to the PSI * * * I’ve also considered the purposes and principles of felony

sentencing under 2929.11. I do see as my primary purpose the need to protect the public and to punish the Defendant. I’m mindful that any sentence I order

must also deter future conduct by the Defendant and by others, the need to

rehabilitate the Defendant using minimum sanctions necessary while not

imposing an unnecessary burden on governmental resources. * * * I’ve also

considered the seriousness and recidivism factors outlined in 2929.12. * * *

And certainly the Court has before it somebody who does have some criminal

history. * * * And that he does have a burglary of a dwelling out of Hamilton

County, Indiana, that event occurred after this event but he was sentenced on

that matter first. And then there are pending burglaries in * * * So as to

recidivism factors, it does appear that the Defendant has at least some prior

criminal history with a failure to respond favorably to sanctions for criminal

convictions * * * .

Sentencing Tr., pp. 9-11.

The court reiterated the purposes and principles of sentencing in its corresponding Sentencing

Judgment Entry, dated November 24, 2025.

{¶25} While the court mentioned the pending burglary charges, said charges were

included in the PSI report (that the court must consider), were properly in the record, and the

PSI was disclosed to Appellant prior to sentencing. Further, at the earlier plea hearing,

Appellant disclosed he was on probation in the State of Connecticut. Appellant's counsel also

referred to the pending charges at the sentencing hearing when requesting the two-year

minimum. Counsel stated: “[o]ne of the reasons we're asking the Court to impose the

minimum two years in this case, Your Honor, is because of the fact that we have matters in

other jurisdictions. We certainly owe the State of Ohio as my client acknowledges penance. But we also have other states that we'd like to account for and it's my understanding that ICE

is already looking at us for the future.” Sentencing Tr., p. 8.

{¶26} The court considered Appellant’s criminal history and pending charges as they

relate to recidivism under R.C. 2929.12. The court recited the conviction in Indiana and

acknowledged on the record that some other cases were still “working through the system.”

Id., p. 11. Thus, the record demonstrates that the judge did not give undue or improper weight

to pending charges. Rather, the court properly weighed the sentencing factors and principles

and exercised its discretion in imposing a sentence authorized by statute. Thus, the record

clearly and convincingly supports Appellant's sentence. Accordingly, Appellant’s second

CONCLUSION

{¶27} Appellant’s first and second assignments of error are overruled, and the

judgment of the Delaware County Court of Common Pleas is affirmed.

{¶28} Costs to Appellant.

By: Montgomery, J. King, P.J. and Popham, J. concur.