[Cite as State v. Weir, 2018-Ohio-2827.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2017-A-0039 - vs - :
KEVIN A. WEIR, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas. Case No. 2016 CR 00465.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Matthew M. Nee, Nee Law Firm, LLC, 26032 Detroit Road, Suite 5, Westlake, OH 44145 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Kevin A. Weir, appeals from the Judgment Entry of Guilty to
Negotiated Plea and Sentence, entered by the Ashtabula County Court of Common Pleas
on October 19, 2016. The judgment is affirmed.
{¶2} The Ashtabula County Grand Jury returned an eighteen-count indictment
against appellant on August 3, 2016. The indictment alleged eleven counts of pandering
obscenity involving a minor, second-degree felonies in violation of R.C. 2907.321(A)(1), and seven counts of pandering obscenity involving a minor, fourth-degree felonies in
violation of R.C. 2907.321(A)(5).
{¶3} Appellant entered into a negotiated plea agreement with appellee, the state
of Ohio, on October 16, 2016. In exchange for appellant’s plea of guilty to eight of the
second-degree felony counts of pandering obscenity involving a minor, the remaining
counts would be dismissed. The plea agreement included a stipulated sentencing
recommendation of ten years in prison.
{¶4} A plea and sentencing hearing was held on October 18, 2016. The trial
court accepted appellant’s guilty plea to Counts 1, 2, 4, 5, 7, 9, 10, and 11 of the indictment
and dismissed the remaining counts. The trial court adopted and approved the stipulated
sentencing recommendation. Appellant was sentenced to five years in prison on Count
1 and five years in prison on Count 2, to be served consecutively, and five years in prison
on each of Counts 4, 5, 7, 9, 10, and 11, all to be served concurrently with Count 2, for a
total prison term of ten years.
{¶5} Appellant noticed an appeal from the trial court’s subsequent October 19,
2016 entry and asserts two assignments of error.
{¶6} Appellant’s first assignment of error states:
The Trial Court committed reversible error because it did not strictly comply with Crim.R. 11 in that it did not perform a complete colloquy where it actually informed Weir of his rights under Crim.R. 11.
{¶7} Appellant argues the trial court failed to strictly comply with Crim.R.
11(C)(2)(c) when it instructed appellant to read certain contents of his plea agreement
into the record regarding his waiver of various constitutional rights.
2 {¶8} Pursuant to Crim.R. 11(C)(2), when a defendant is pleading guilty or no
contest to felony offenses, the trial court must address the defendant personally and
inform the defendant of various constitutional and non-constitutional rights prior to
accepting the plea. The constitutional rights are found in Crim.R. 11(C)(2)(c): the trial
court is to inform the defendant that by pleading guilty or no contest, he or she “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.”
{¶9} Compliance with Crim.R. 11 “ensures that defendants enter pleas with
knowledge of rights that they would forgo and creates a record by which appellate courts
can determine whether pleas are entered voluntarily.” State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, ¶11, citing State v. Nero, 56 Ohio St.3d 106, 107 (1990). “When a
trial judge fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), the guilty
or no-contest plea is invalid ‘under a presumption that it was entered involuntarily and
unknowingly.’” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶31, quoting Griggs,
supra, at ¶12.
{¶10} The Ohio Supreme Court has instructed that a trial court must strictly
comply with Crim.R. 11(C) as it relates to the waiver of constitutional rights. State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶18, citing State v. Ballard, 66 Ohio St.2d
473, 479 (1981). Failure to literally comply with the language of Crim.R. 11(C)(2)(c) does
not, however, invalidate a plea agreement so long as the record demonstrates that the
trial court explained or referred to the constitutional rights ‘“in a manner reasonably
3 intelligible to that defendant.”’” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130,
¶14, quoting Veney, supra, at ¶27 (emphasis sic), quoting Ballard, supra, at 480.
{¶11} Here, the trial court engaged in a meaningful dialogue with appellant at the
plea hearing. The trial court instructed appellant to read portions of his written plea
agreement into the record, paragraph by paragraph, and then inquired whether appellant
understood what he had read and what rights he was waiving, and whether appellant had
any questions. Each time, appellant indicated he understood what he had read and that
he had no questions for the court. The pertinent portion of the colloquy is as follows:
THE COURT: Okay. Would you please read the next paragraph?
THE DEFENDANT: Prior to signing this Written Plea of Guilty, my attorney explained to me that I have the following constitutional rights, which I would waive by pleading guilty.
THE COURT: Okay. Would you please then read the portion of the Page One that contains those rights?
THE DEFENDANT: I under-- I under --
THE COURT: Keep -- read right there. “I understand” --
THE DEFENDANT: Okay. I understand that this plea -- I give up my right to a jury trial or court trial; to question or have my attorney question witnesses against me; to use the power of the Court to call witnesses. At a trial I have the right to not -- the right not to take the witness stand and have no one comment if I decide not to testify. At a trial the State would be required to prove my guilt beyond a reasonable doubt on every element of the offense. If I were convicted at trial, I would have the right to appeal.
THE COURT: Okay. Mr. Weir, do you have any questions whatsoever about any of those rights?
THE DEFENDANT: No.
THE COURT: You understand all of them?
THE DEFENDANT: (Nods head.) Yes.
4 THE COURT: You have to answer out loud.
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And you agree to give up those rights, sir?
THE DEFENDANT: Yes, I do.
THE COURT: Okay. Please read the next paragraph, sir.
THE DEFENDANT: I hereby state that I understand these rights and privileges and the possible consequences of a guilty plea. I hereby waive and reject all of these rights. I am voluntarily pleading guilty on [sic] my own free will. I understand that this within plea of guilty constitutes an admission which may be used against me at a later trial. By pleading guilty I admit committing the offense and will tell the Judge the facts and circumstances of my guilt.
THE COURT: Okay. Do you have any questions about anything so far?
THE DEFENDANT: No, I do not.
THE COURT: Okay. You understand everything so far?
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[Cite as State v. Weir, 2018-Ohio-2827.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2017-A-0039 - vs - :
KEVIN A. WEIR, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas. Case No. 2016 CR 00465.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Matthew M. Nee, Nee Law Firm, LLC, 26032 Detroit Road, Suite 5, Westlake, OH 44145 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Kevin A. Weir, appeals from the Judgment Entry of Guilty to
Negotiated Plea and Sentence, entered by the Ashtabula County Court of Common Pleas
on October 19, 2016. The judgment is affirmed.
{¶2} The Ashtabula County Grand Jury returned an eighteen-count indictment
against appellant on August 3, 2016. The indictment alleged eleven counts of pandering
obscenity involving a minor, second-degree felonies in violation of R.C. 2907.321(A)(1), and seven counts of pandering obscenity involving a minor, fourth-degree felonies in
violation of R.C. 2907.321(A)(5).
{¶3} Appellant entered into a negotiated plea agreement with appellee, the state
of Ohio, on October 16, 2016. In exchange for appellant’s plea of guilty to eight of the
second-degree felony counts of pandering obscenity involving a minor, the remaining
counts would be dismissed. The plea agreement included a stipulated sentencing
recommendation of ten years in prison.
{¶4} A plea and sentencing hearing was held on October 18, 2016. The trial
court accepted appellant’s guilty plea to Counts 1, 2, 4, 5, 7, 9, 10, and 11 of the indictment
and dismissed the remaining counts. The trial court adopted and approved the stipulated
sentencing recommendation. Appellant was sentenced to five years in prison on Count
1 and five years in prison on Count 2, to be served consecutively, and five years in prison
on each of Counts 4, 5, 7, 9, 10, and 11, all to be served concurrently with Count 2, for a
total prison term of ten years.
{¶5} Appellant noticed an appeal from the trial court’s subsequent October 19,
2016 entry and asserts two assignments of error.
{¶6} Appellant’s first assignment of error states:
The Trial Court committed reversible error because it did not strictly comply with Crim.R. 11 in that it did not perform a complete colloquy where it actually informed Weir of his rights under Crim.R. 11.
{¶7} Appellant argues the trial court failed to strictly comply with Crim.R.
11(C)(2)(c) when it instructed appellant to read certain contents of his plea agreement
into the record regarding his waiver of various constitutional rights.
2 {¶8} Pursuant to Crim.R. 11(C)(2), when a defendant is pleading guilty or no
contest to felony offenses, the trial court must address the defendant personally and
inform the defendant of various constitutional and non-constitutional rights prior to
accepting the plea. The constitutional rights are found in Crim.R. 11(C)(2)(c): the trial
court is to inform the defendant that by pleading guilty or no contest, he or she “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.”
{¶9} Compliance with Crim.R. 11 “ensures that defendants enter pleas with
knowledge of rights that they would forgo and creates a record by which appellate courts
can determine whether pleas are entered voluntarily.” State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, ¶11, citing State v. Nero, 56 Ohio St.3d 106, 107 (1990). “When a
trial judge fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), the guilty
or no-contest plea is invalid ‘under a presumption that it was entered involuntarily and
unknowingly.’” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶31, quoting Griggs,
supra, at ¶12.
{¶10} The Ohio Supreme Court has instructed that a trial court must strictly
comply with Crim.R. 11(C) as it relates to the waiver of constitutional rights. State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶18, citing State v. Ballard, 66 Ohio St.2d
473, 479 (1981). Failure to literally comply with the language of Crim.R. 11(C)(2)(c) does
not, however, invalidate a plea agreement so long as the record demonstrates that the
trial court explained or referred to the constitutional rights ‘“in a manner reasonably
3 intelligible to that defendant.”’” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130,
¶14, quoting Veney, supra, at ¶27 (emphasis sic), quoting Ballard, supra, at 480.
{¶11} Here, the trial court engaged in a meaningful dialogue with appellant at the
plea hearing. The trial court instructed appellant to read portions of his written plea
agreement into the record, paragraph by paragraph, and then inquired whether appellant
understood what he had read and what rights he was waiving, and whether appellant had
any questions. Each time, appellant indicated he understood what he had read and that
he had no questions for the court. The pertinent portion of the colloquy is as follows:
THE COURT: Okay. Would you please read the next paragraph?
THE DEFENDANT: Prior to signing this Written Plea of Guilty, my attorney explained to me that I have the following constitutional rights, which I would waive by pleading guilty.
THE COURT: Okay. Would you please then read the portion of the Page One that contains those rights?
THE DEFENDANT: I under-- I under --
THE COURT: Keep -- read right there. “I understand” --
THE DEFENDANT: Okay. I understand that this plea -- I give up my right to a jury trial or court trial; to question or have my attorney question witnesses against me; to use the power of the Court to call witnesses. At a trial I have the right to not -- the right not to take the witness stand and have no one comment if I decide not to testify. At a trial the State would be required to prove my guilt beyond a reasonable doubt on every element of the offense. If I were convicted at trial, I would have the right to appeal.
THE COURT: Okay. Mr. Weir, do you have any questions whatsoever about any of those rights?
THE DEFENDANT: No.
THE COURT: You understand all of them?
THE DEFENDANT: (Nods head.) Yes.
4 THE COURT: You have to answer out loud.
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And you agree to give up those rights, sir?
THE DEFENDANT: Yes, I do.
THE COURT: Okay. Please read the next paragraph, sir.
THE DEFENDANT: I hereby state that I understand these rights and privileges and the possible consequences of a guilty plea. I hereby waive and reject all of these rights. I am voluntarily pleading guilty on [sic] my own free will. I understand that this within plea of guilty constitutes an admission which may be used against me at a later trial. By pleading guilty I admit committing the offense and will tell the Judge the facts and circumstances of my guilt.
THE COURT: Okay. Do you have any questions about anything so far?
THE DEFENDANT: No, I do not.
THE COURT: Okay. You understand everything so far?
THE DEFENDANT: Yes, I do, sir.
{¶12} This portion of the colloquy was conducted after the trial court had
determined appellant’s age (42), education level (high school graduate and some
college), and ability to read, write, and understand the English language. Appellant also
represented to the trial court that he had sufficient time to speak to his attorney about the
contents of the plea agreement and that he had no complaints about his attorney’s
representation.
{¶13} The circumstances at hand are quite distinguishable from those in State v.
Caudill, cited by appellant in support of his argument, wherein the defendant’s attorney
had read the plea agreement into the record and represented to the trial court that he had
5 explained the waiver of rights to the defendant. The Ohio Supreme Court held that “[t]he
requirements of Crim. R. 11(C)(2) are not satisfied by a written statement by the
defendant or by representations of his counsel.” State v. Caudill, 48 Ohio St.2d 342
(1976), paragraph three of the syllabus.
{¶14} Here, the colloquy was between the trial court and appellant. The fact that
appellant read portions of his written plea agreement into the record and verified his
understanding, rather than the trial court reading the rights to appellant, does not, under
the circumstances of this case, raise any presumption that appellant entered his guilty
plea unknowingly or involuntarily. We conclude the trial court strictly complied with
Crim.R. 11(C)(2)(c) in that it referred to the waiver of constitutional rights in a manner
reasonably intelligible to appellant.
{¶15} Appellant’s first assignment of error is without merit.
{¶16} Appellant’s second assignment of error states:
The Trial Court committed reversible error by accepting a plea on Weir’s behalf that was not made knowingly and voluntarily because Weir was not advised that his sentence was not appealable under R.C. 2953.08(D).
{¶17} “A sentence imposed upon a defendant is not subject to review under [R.C.
2953.08] if the sentence is authorized by law, has been recommended jointly by the
defendant and the prosecution in the case, and is imposed by a sentencing judge.” R.C.
2953.08(D)(1).
{¶18} Appellant does not argue that his sentence was not authorized by law, that
it was not jointly recommended, or that it was not imposed by a sentencing judge. Rather,
appellant argues his guilty plea was not entered knowingly and voluntarily because the
6 trial court failed to advise appellant that his stipulated sentence was not reviewable on
appeal.
{¶19} “An inquiry into the voluntariness of a plea does not end with the
determination as to whether the trial judge complied with Crim.R. 11(C). ‘[A] defendant
who challenges his guilty plea on the basis that it was not knowingly, intelligently, and
voluntarily made must show a prejudicial effect. * * * The test is whether the plea would
have otherwise been made.’” State v. Robinson, 8th Dist. Cuyahoga Nos. 89222 &
89223, 2008-Ohio-224, ¶10, quoting State v. Nero, 56 Ohio St.3d 106, 108.
{¶20} The record reveals appellant was aware that he had limited appellate rights
as a result of the plea agreement. Appellant’s signed, written plea of guilty provides: “My
attorney has explained my right to appeal a maximum sentence, my other limited
appellate rights, and that any appeal must be filed within 30 days of the Court’s entry of
the judgment of my sentence.” (Emphasis added.) Appellant also read this provision into
the record at his plea hearing and affirmed to the trial court that he had no questions.
{¶21} Additionally, the trial court does not have a duty to advise a defendant that
a jointly recommended sentence is precluded from appellate review. There is no
provision in Crim.R. 11(C) that requires the trial court to do so at the time of accepting a
guilty plea. See State v. Atchley, 10th Dist. Franklin No. 04AP-841, 2005-Ohio-1124,
¶10; Robinson, supra, at ¶14 (citations omitted). And there is no requirement in Crim.R.
32(B)(2) that requires the trial court do so at the time of sentencing. See, e.g., State v.
Bryant, 6th Dist. Lucas No. L-03-1359, 2005-Ohio-3352, ¶21, citing State v. Middleton,
12th Dist. Preble No. CA2004-01-003, 2005-Ohio-681, ¶25, fn. 1 and State v. White, 9th
Dist. Summit No. 21741, 2003 WL 22451372, *1 (Oct. 6, 2003). Additionally, there is no
7 constitutional requirement for the trial court to advise a defendant of his or her appellate
rights following conviction upon a guilty plea. See State v. Borchers, 101 Ohio App.3d
157, 163 (2d Dist.1995); State v. Lentz, 2d Dist. Miami No. 01CA31, 2003-Ohio-911, ¶15-
16. The trial court’s failure to advise appellant of the limitation found in R.C. 2953.08(D)(1)
was not an error.
{¶22} We further note that appellant does not assert he would not have pled guilty
had the trial court advised him of the R.C. 2953.08(D)(1) limitation. Appellant’s complaint
is simply that the length of the sentence to which he stipulated and agreed cannot be
reviewed by this court. Thus, appellant has not demonstrated that he was prejudiced by
the trial court accepting his guilty plea without first informing him that his sentence would
be precluded from appellate review.
{¶23} Appellant’s second assignment of error is without merit.
{¶24} The judgment of the Ashtabula County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.