[Cite as State v. Steinmetz, 2014-Ohio-2235.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2013-10-185 Plaintiff-Appellee, : OPINION : 5/27/2014 - vs - :
MICHAEL STEINMETZ, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-05-0810
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Michael Steinmetz, appeals from his conviction and
sentence he received in the Butler County Court of Common Pleas following his guilty plea to
one count of breaking and entering. For the reasons outlined below, we reverse and remand
for further proceedings.
{¶ 2} On the evening of April 30, 2013, Steinmetz was seen breaking into The Money
Store located at 1990 South Erie Highway, Hamilton, Butler County, Ohio. After police Butler CA2013-10-185
arrived, Steinmetz was arrested having been found hiding behind several 50-gallon drums.
Following his arrest, the Butler County grand jury indicted Steinmetz on one count of
breaking and entering in violation of R.C. 2911.13(A), a fifth-degree felony, as well as one
count of resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor.
{¶ 3} On June 24, 2013, the trial court held a plea hearing wherein Steinmetz agreed
to plead guilty to the breaking and entering charge in exchange for the merger of the resisting
arrest charge. As part of this hearing, the state specifically stated on the record and in open
court that Steinmetz "now will enter a plea to Count 1, breaking and entering, felony of the
5th degree, Count 2 being merged." Steinmetz also signed a guilty plea form that explicitly
stated "[n]o promises have been made except as part of this plea agreement stated entirely
as follows: merge count two." Steinmetz never offered any objection at the plea hearing.
{¶ 4} On September 9, 2013, the trial court held a sentencing hearing and sentenced
Steinmetz to 12 months in prison. Steinmetz now appeals from his conviction and sentence,
raising two assignments of error for review. For ease of discussion, Steinmetz's two
assignments of error will be addressed out of order.
{¶ 5} Assignment of Error No. 2:
{¶ 6} THE TRIAL COURT IN THE INSTANT CASE COMMITTED REVERSIBLE
ERROR WHEN IT FAILED TO ADVISE THE APPELLANT PRIOR TO ENTERING HIS PLEA
THAT UPON ACCEPTANCE OF THE PLEA, THE COURT COULD PROCEED WITH
JUDGMENT AND SENTENCE AS REQUIRED BY CRIMINAL RULE 11(C)2B AND
FURTHER COMMITTED ERROR WHEN IT FAILED TO ADVISE THE APPELLANT THAT
THE STATE WOULD HAVE TO PROVE THE DEFENDANTS GUILTY BEYOND
REASONABLE DOUBT AS REQUIRED BY CRIMINAL RULE 11(C)2C AND FURTHER
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ADVISE THE APPELLANT OF
THE MAXIMUM PENALTY INVOLVED AS REQUIRED BY CRIMINAL RULE 11(C)2A. -2- Butler CA2013-10-185
{¶ 7} In his second assignment of error, Steinmetz argues his guilty plea was invalid
because the trial court failed to comply with the requirements of Crim.R. 11(C). Pursuant to
Crim.R. 11(C), before accepting a guilty plea, "the court must make the determinations and
give the warnings required by Crim.R. 11(C)(2)(a) and (b) and notify the defendant of the
constitutional rights listed in Crim.R. 11(C)(2)(c)." State v. Irvin, 12th Dist. Warren No.
CA2013-03-027, 2013-Ohio-5209, ¶ 6, quoting State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, ¶ 7. "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. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, ¶ 9. When
a trial court fails to strictly comply with this duty, the defendant's plea is invalid. Id., citing
Veney at ¶ 31. However, regarding the non-constitutional notifications, a trial court must only
substantially comply with Crim.R. 11(C)(2)(a) and (b). Id.
{¶ 8} The state concedes the trial court erred by failing to comply with the
requirements of Crim.R. 11(C), including the fact that the trial court did not strictly comply
with Crim.R. 11(C)(2)(c). After a thorough review of the record, we agree the trial court failed
to strictly comply with the requirements of Crim.R. 11(C)(2)(c), thereby rendering Steinmetz's
guilty plea invalid. We also find the trial court failed to substantially comply with the
requirements of Crim.R. 11(C)(2)(a) and (b). Therefore, Steinmetz's second assignment of
error is sustained and this matter is reversed and remanded for further proceedings. Upon
remand, the trial court must give the non-constitutional notifications required by Crim.R.
11(C)(2)(a) and (b) and notify Steinmetz of the constitutional rights listed in Crim.R.
11(C)(2)(c) should Steinmetz wish to accept the state's plea agreement and once again enter
a guilty plea.
{¶ 9} Assignment of Error No. 1:
{¶ 10} IF A NEGOTIATED PLEA IS NOT CLEARLY AND PLAINLY PLACED UPON -3- Butler CA2013-10-185
THE RECORD AS REQUIRED BY OHIO CRIMINAL RULE OF PROCEDURE 11(F), A
REVERSAL OF THE CONVICTION AND SENTENCE IS WARRANTED.
{¶ 11} In his first assignment of error, Steinmetz argues his conviction and sentence
must be reversed because the terms of his plea agreement were not stated on the record
and in open court as required by Crim.R. 11(F).
{¶ 12} Pursuant to Crim.R. 11(F), in felony cases, when a defendant offers a
negotiated plea of guilty, such as the case here, "the underlying agreement upon which the
plea is based shall be stated on the record in open court." In other words, under Crim.R.
11(F), the parties are required to state the plea agreement on the record at the time the
defendant enters his guilty plea. State v. Darnell, 4th Dist. Gallia No. 02CA15, 2003-Ohio-
2775, ¶ 8. "Prudence also dictates that a plea agreement be in writing." State v. Billingsley,
133 Ohio St.3d 277, 2012-Ohio-4307, ¶ 25. However, as this court recently stated, "[i]t is not
necessary for the trial court to recite certain magical words in order to comply with Crim.R. 11
so long as it substantially complied with the rule." State v. Chasteen, 12th Dist. Butler No.
CA2013-07-129, 2014-Ohio-1129, ¶ 10.
{¶ 13} As noted by the Ohio Supreme Court, "a contemporaneous objection is
necessary to preserve error for appellate review of a violation of Crim.R. 11(F)." State v.
Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 89. Without such contemporaneous
objection, a defendant "cannot prevail on his claim under Crim.R. 11(F) unless he shows
plain error." Id. at ¶ 90. Pursuant to Crim.R. 52(B), plain error exists where there is an
obvious deviation from a legal rule that affected the outcome of the proceeding. State v.
Blanda, 12th Dist. Butler No. CA2010-03-050, 2011-Ohio-411, ¶ 20, citing State v. Barnes,
94 Ohio St.3d 21, 27 (2002). Notice of plain error is to be taken with utmost caution and
should be invoked only to prevent a clear miscarriage of justice. State v. Blankenburg, 197
Ohio App.3d 201, 2012-Ohio-1289, ¶ 53 (12th Dist.). -4- Butler CA2013-10-185
{¶ 14} Steinmetz did not raise any objections during his sentencing hearing.
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[Cite as State v. Steinmetz, 2014-Ohio-2235.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2013-10-185 Plaintiff-Appellee, : OPINION : 5/27/2014 - vs - :
MICHAEL STEINMETZ, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-05-0810
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Michael Steinmetz, appeals from his conviction and
sentence he received in the Butler County Court of Common Pleas following his guilty plea to
one count of breaking and entering. For the reasons outlined below, we reverse and remand
for further proceedings.
{¶ 2} On the evening of April 30, 2013, Steinmetz was seen breaking into The Money
Store located at 1990 South Erie Highway, Hamilton, Butler County, Ohio. After police Butler CA2013-10-185
arrived, Steinmetz was arrested having been found hiding behind several 50-gallon drums.
Following his arrest, the Butler County grand jury indicted Steinmetz on one count of
breaking and entering in violation of R.C. 2911.13(A), a fifth-degree felony, as well as one
count of resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor.
{¶ 3} On June 24, 2013, the trial court held a plea hearing wherein Steinmetz agreed
to plead guilty to the breaking and entering charge in exchange for the merger of the resisting
arrest charge. As part of this hearing, the state specifically stated on the record and in open
court that Steinmetz "now will enter a plea to Count 1, breaking and entering, felony of the
5th degree, Count 2 being merged." Steinmetz also signed a guilty plea form that explicitly
stated "[n]o promises have been made except as part of this plea agreement stated entirely
as follows: merge count two." Steinmetz never offered any objection at the plea hearing.
{¶ 4} On September 9, 2013, the trial court held a sentencing hearing and sentenced
Steinmetz to 12 months in prison. Steinmetz now appeals from his conviction and sentence,
raising two assignments of error for review. For ease of discussion, Steinmetz's two
assignments of error will be addressed out of order.
{¶ 5} Assignment of Error No. 2:
{¶ 6} THE TRIAL COURT IN THE INSTANT CASE COMMITTED REVERSIBLE
ERROR WHEN IT FAILED TO ADVISE THE APPELLANT PRIOR TO ENTERING HIS PLEA
THAT UPON ACCEPTANCE OF THE PLEA, THE COURT COULD PROCEED WITH
JUDGMENT AND SENTENCE AS REQUIRED BY CRIMINAL RULE 11(C)2B AND
FURTHER COMMITTED ERROR WHEN IT FAILED TO ADVISE THE APPELLANT THAT
THE STATE WOULD HAVE TO PROVE THE DEFENDANTS GUILTY BEYOND
REASONABLE DOUBT AS REQUIRED BY CRIMINAL RULE 11(C)2C AND FURTHER
COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ADVISE THE APPELLANT OF
THE MAXIMUM PENALTY INVOLVED AS REQUIRED BY CRIMINAL RULE 11(C)2A. -2- Butler CA2013-10-185
{¶ 7} In his second assignment of error, Steinmetz argues his guilty plea was invalid
because the trial court failed to comply with the requirements of Crim.R. 11(C). Pursuant to
Crim.R. 11(C), before accepting a guilty plea, "the court must make the determinations and
give the warnings required by Crim.R. 11(C)(2)(a) and (b) and notify the defendant of the
constitutional rights listed in Crim.R. 11(C)(2)(c)." State v. Irvin, 12th Dist. Warren No.
CA2013-03-027, 2013-Ohio-5209, ¶ 6, quoting State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, ¶ 7. "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. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, ¶ 9. When
a trial court fails to strictly comply with this duty, the defendant's plea is invalid. Id., citing
Veney at ¶ 31. However, regarding the non-constitutional notifications, a trial court must only
substantially comply with Crim.R. 11(C)(2)(a) and (b). Id.
{¶ 8} The state concedes the trial court erred by failing to comply with the
requirements of Crim.R. 11(C), including the fact that the trial court did not strictly comply
with Crim.R. 11(C)(2)(c). After a thorough review of the record, we agree the trial court failed
to strictly comply with the requirements of Crim.R. 11(C)(2)(c), thereby rendering Steinmetz's
guilty plea invalid. We also find the trial court failed to substantially comply with the
requirements of Crim.R. 11(C)(2)(a) and (b). Therefore, Steinmetz's second assignment of
error is sustained and this matter is reversed and remanded for further proceedings. Upon
remand, the trial court must give the non-constitutional notifications required by Crim.R.
11(C)(2)(a) and (b) and notify Steinmetz of the constitutional rights listed in Crim.R.
11(C)(2)(c) should Steinmetz wish to accept the state's plea agreement and once again enter
a guilty plea.
{¶ 9} Assignment of Error No. 1:
{¶ 10} IF A NEGOTIATED PLEA IS NOT CLEARLY AND PLAINLY PLACED UPON -3- Butler CA2013-10-185
THE RECORD AS REQUIRED BY OHIO CRIMINAL RULE OF PROCEDURE 11(F), A
REVERSAL OF THE CONVICTION AND SENTENCE IS WARRANTED.
{¶ 11} In his first assignment of error, Steinmetz argues his conviction and sentence
must be reversed because the terms of his plea agreement were not stated on the record
and in open court as required by Crim.R. 11(F).
{¶ 12} Pursuant to Crim.R. 11(F), in felony cases, when a defendant offers a
negotiated plea of guilty, such as the case here, "the underlying agreement upon which the
plea is based shall be stated on the record in open court." In other words, under Crim.R.
11(F), the parties are required to state the plea agreement on the record at the time the
defendant enters his guilty plea. State v. Darnell, 4th Dist. Gallia No. 02CA15, 2003-Ohio-
2775, ¶ 8. "Prudence also dictates that a plea agreement be in writing." State v. Billingsley,
133 Ohio St.3d 277, 2012-Ohio-4307, ¶ 25. However, as this court recently stated, "[i]t is not
necessary for the trial court to recite certain magical words in order to comply with Crim.R. 11
so long as it substantially complied with the rule." State v. Chasteen, 12th Dist. Butler No.
CA2013-07-129, 2014-Ohio-1129, ¶ 10.
{¶ 13} As noted by the Ohio Supreme Court, "a contemporaneous objection is
necessary to preserve error for appellate review of a violation of Crim.R. 11(F)." State v.
Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 89. Without such contemporaneous
objection, a defendant "cannot prevail on his claim under Crim.R. 11(F) unless he shows
plain error." Id. at ¶ 90. Pursuant to Crim.R. 52(B), plain error exists where there is an
obvious deviation from a legal rule that affected the outcome of the proceeding. State v.
Blanda, 12th Dist. Butler No. CA2010-03-050, 2011-Ohio-411, ¶ 20, citing State v. Barnes,
94 Ohio St.3d 21, 27 (2002). Notice of plain error is to be taken with utmost caution and
should be invoked only to prevent a clear miscarriage of justice. State v. Blankenburg, 197
Ohio App.3d 201, 2012-Ohio-1289, ¶ 53 (12th Dist.). -4- Butler CA2013-10-185
{¶ 14} Steinmetz did not raise any objections during his sentencing hearing. Yet, even
if he had made the necessary objection, a review of the transcript of the plea hearing clearly
demonstrates the plea agreement was properly read into the record and in open court as
required by Crim.R. 11(F). Again, as part of Steinmetz's plea hearing, the state specifically
stated on the record and in open court that Steinmetz "now will enter a plea to Count 1,
breaking and entering, felony of the 5th degree, Count 2 being merged." Moreover, the guilty
plea form Steinmetz signed explicitly states "[n]o promises have been made except as part of
this plea agreement stated entirely as follows: merge count two." Therefore, as the record
clearly demonstrates the trial court complied with the requirements of Crim.R. 11(F).
{¶ 15} However, even though we find the plea agreement was stated on the record as
required by Crim.R. 11(F), based on our resolution of Steinmetz's second assignment of
error, we find Steinmetz's first assignment of error moot. Again, as noted above, this matter
must be reversed so that the trial court may properly comply with the requirements of Crim.R.
11(C) should Steinmetz wish to accept the state's plea agreement and once again enter a
guilty plea.
{¶ 16} Judgment reversed and remanded for further proceedings.
HENDRICKSON, P.J., and M. POWELL, J., concur.
-5-