[Cite as State v. Wyatt, 2019-Ohio-1183.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-18-026
Appellee Trial Court No. 18 CR 065
v.
Joshua Wyatt DECISION AND JUDGMENT
Appellant Decided: March 29, 2019
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Joshua W. Wyatt, appeals the August 2, 2018
judgment of the Ottawa County Court of Common Pleas which, following appellant’s
guilty plea to attempted rape and unlawful sexual conduct with a minor, sentenced him to a total of six years of imprisonment. Because we find that his plea was knowing and
voluntary, we affirm.
{¶ 2} Appellant was indicted on March 15, 2018, on one count of rape, a first-
degree felony, and one count of unlawful sexual conduct with a minor, a third-degree
felony. Appellant entered a not-guilty plea to the charges.
{¶ 3} On June 21, 2018, appellant withdrew his not guilty plea and entered a guilty
plea to the amended charge of attempted rape, a second degree felony, and unlawful
sexual conduct with a minor. Appellant’s sentencing hearing was held on August 2,
2018; he was sentenced to 6 years of imprisonment for the attempted rape charge and 60
months of imprisonment as to the unlawful sexual conduct charge. The sentences were
ordered to be served concurrently. Appellant was also classified as a Tier III Sex
Offender. Following the court’s journalized judgment entry, this appeal followed with
appellant raising the following assignment of error:
1. The trial court committed reversible error by accepting guilty
pleas of Joshua D. Wyatt (“Appellant’) which were not made knowingly,
intelligently, and voluntarily.
{¶ 4} In his sole assignment of error, appellant argues that his guilty plea was not
knowing and voluntary and the court should not have accepted his plea because he was
“misled” about his potential sentence and that at the time of the alleged offense he was
“high” and was unable to recall the incident.
2. {¶ 5} A guilty or no contest plea will be considered knowing, intelligent and
voluntary so long as, before accepting the plea, the trial court substantially complies with
the procedure set forth in Crim.R. 11(C). State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990). “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea and the
rights he is waiving.” Id.
{¶ 6} Appellant’s first argument is based upon the exchange at the June 21, 2018
plea hearing where the state initially informed the court that good time credit of one day
per month was available. The state almost immediately retracted its statement as follows:
MR. VANEERTEN: I apologize. There is no good time credit. * * *
There would be no credit.
MR. WHITCOMB: That is what I thought.
THE COURT: No good time for anything over a three?
MR. VANEERTEN: No. There is good time for some lesser
felonies, but given this is a sexually oriented offense, there is not. * * *.
THE COURT: And transitional control, intensive prison program not
available either?
MR. VANEERTEN: Not available.
***
[THE COURT]: I will say at this point for purposes of your decision
today, make your decision, Mr. Wyatt, based on the assumption that there is
3. no earned time, no boot camp, no intensive prison program, transitional
control available. That is the presumption I am using for today. * * *. [A]t
this point, your decision should be made on the presumption that there is
not earned credit, boot camp, transitional control, intensive prison program
available. Okay?
A. Okay.
{¶ 7} Reviewing the above exchange, we must conclude that appellant was clearly
informed that in entering his guilty plea, he was to presume that none of the prison
alternatives were available based upon the sexual nature of the charges against him.
Thus, we reject this argument.
{¶ 8} Appellant next contends that it is unclear as to whether he in fact admitted to
committing the crimes alleged. Appellant states that although he continually asserted his
inability to admit the allegations, the court improperly accepted his guilty plea.
Supporting his argument that the court should not have accepted his plea, appellant relies
on a case where the defendant entered an Alford plea despite protestations of innocence.
State v. Padgett, 67 Ohio App.3d 332, 586 N.E.2d 1194 (2d Dist.1990). In Padgett the
court noted that prior to accepting such pleas, a court must “determine that the defendant
has made a rational calculation to plead guilty notwithstanding his belief that he is
innocent.” Id. at 338.
4. {¶ 9} We find the present facts distinguishable from Padgett. At the June 21,
2018 plea hearing, appellant did not assert his innocence; rather, appellant stated that he
could not recall the alleged incident because he was high on methamphetamine. The
inability to remember the specifics of the crime charged is not a requirement for entering
a valid guilty plea. State v. Leonard, 8th Dist. Cuyahoga No. 86310, 2006-Ohio-1943, ¶
8. The Leonard court further observed:
{¶ 10} It is often the case that defendants are in some way impaired when
they commit a crime and, as a result, do not recall certain details of the crime, or
even the crime itself; however, this does not negate their competency to enter a
valid guilty plea. When entering a guilty plea, it is the defendant’s present state of
mind that is at issue, not his past state of mind. Id.
{¶ 11} In the present case, at the June 21, 2018 plea hearing and prior to accepting
appellant’s plea, the court asked him to explain the circumstances surrounding the
charges. Appellant’s counsel interjected that at the time of the incident appellant was
high on methamphetamines:
[s]o he has periods of just not remembering things based on that, so
he is going to try to do the best he can, but I have discussed this with him in
detail. We have gone through the elements of the offenses and so forth, and
I believe that he understands what would be required of the prosecution in
this case to prove beyond a reasonable doubt, but he can remember some
things. He can’t remember everything.
5. {¶ 12} The court then addressed appellant and the following exchange occurred:
Q: [Y]ou must be somehow convinced of the facts of which you are
pleading guilty to.
A: Somewhat.
Q: Do you believe it happened?
A: Not the way it was said that it happened, but I know I was high.
Q: You know?
A: I know I was in the wrong to begin with.
{¶ 13} The court then had the state set forth what evidence it would have
presented had the matter proceeded to trial. The state indicated that the 14 year-old
victim’s account was corroborated by DNA evidence. The court then addressed
appellant:
Q: [A]s to the facts put forth by the State, do you disagree?
A: I disagree, Your Honor.
Q: You do?
A: Yes.
{¶ 14} A recess was then taken for appellant to confer with his counsel.
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[Cite as State v. Wyatt, 2019-Ohio-1183.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-18-026
Appellee Trial Court No. 18 CR 065
v.
Joshua Wyatt DECISION AND JUDGMENT
Appellant Decided: March 29, 2019
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Joshua W. Wyatt, appeals the August 2, 2018
judgment of the Ottawa County Court of Common Pleas which, following appellant’s
guilty plea to attempted rape and unlawful sexual conduct with a minor, sentenced him to a total of six years of imprisonment. Because we find that his plea was knowing and
voluntary, we affirm.
{¶ 2} Appellant was indicted on March 15, 2018, on one count of rape, a first-
degree felony, and one count of unlawful sexual conduct with a minor, a third-degree
felony. Appellant entered a not-guilty plea to the charges.
{¶ 3} On June 21, 2018, appellant withdrew his not guilty plea and entered a guilty
plea to the amended charge of attempted rape, a second degree felony, and unlawful
sexual conduct with a minor. Appellant’s sentencing hearing was held on August 2,
2018; he was sentenced to 6 years of imprisonment for the attempted rape charge and 60
months of imprisonment as to the unlawful sexual conduct charge. The sentences were
ordered to be served concurrently. Appellant was also classified as a Tier III Sex
Offender. Following the court’s journalized judgment entry, this appeal followed with
appellant raising the following assignment of error:
1. The trial court committed reversible error by accepting guilty
pleas of Joshua D. Wyatt (“Appellant’) which were not made knowingly,
intelligently, and voluntarily.
{¶ 4} In his sole assignment of error, appellant argues that his guilty plea was not
knowing and voluntary and the court should not have accepted his plea because he was
“misled” about his potential sentence and that at the time of the alleged offense he was
“high” and was unable to recall the incident.
2. {¶ 5} A guilty or no contest plea will be considered knowing, intelligent and
voluntary so long as, before accepting the plea, the trial court substantially complies with
the procedure set forth in Crim.R. 11(C). State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990). “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea and the
rights he is waiving.” Id.
{¶ 6} Appellant’s first argument is based upon the exchange at the June 21, 2018
plea hearing where the state initially informed the court that good time credit of one day
per month was available. The state almost immediately retracted its statement as follows:
MR. VANEERTEN: I apologize. There is no good time credit. * * *
There would be no credit.
MR. WHITCOMB: That is what I thought.
THE COURT: No good time for anything over a three?
MR. VANEERTEN: No. There is good time for some lesser
felonies, but given this is a sexually oriented offense, there is not. * * *.
THE COURT: And transitional control, intensive prison program not
available either?
MR. VANEERTEN: Not available.
***
[THE COURT]: I will say at this point for purposes of your decision
today, make your decision, Mr. Wyatt, based on the assumption that there is
3. no earned time, no boot camp, no intensive prison program, transitional
control available. That is the presumption I am using for today. * * *. [A]t
this point, your decision should be made on the presumption that there is
not earned credit, boot camp, transitional control, intensive prison program
available. Okay?
A. Okay.
{¶ 7} Reviewing the above exchange, we must conclude that appellant was clearly
informed that in entering his guilty plea, he was to presume that none of the prison
alternatives were available based upon the sexual nature of the charges against him.
Thus, we reject this argument.
{¶ 8} Appellant next contends that it is unclear as to whether he in fact admitted to
committing the crimes alleged. Appellant states that although he continually asserted his
inability to admit the allegations, the court improperly accepted his guilty plea.
Supporting his argument that the court should not have accepted his plea, appellant relies
on a case where the defendant entered an Alford plea despite protestations of innocence.
State v. Padgett, 67 Ohio App.3d 332, 586 N.E.2d 1194 (2d Dist.1990). In Padgett the
court noted that prior to accepting such pleas, a court must “determine that the defendant
has made a rational calculation to plead guilty notwithstanding his belief that he is
innocent.” Id. at 338.
4. {¶ 9} We find the present facts distinguishable from Padgett. At the June 21,
2018 plea hearing, appellant did not assert his innocence; rather, appellant stated that he
could not recall the alleged incident because he was high on methamphetamine. The
inability to remember the specifics of the crime charged is not a requirement for entering
a valid guilty plea. State v. Leonard, 8th Dist. Cuyahoga No. 86310, 2006-Ohio-1943, ¶
8. The Leonard court further observed:
{¶ 10} It is often the case that defendants are in some way impaired when
they commit a crime and, as a result, do not recall certain details of the crime, or
even the crime itself; however, this does not negate their competency to enter a
valid guilty plea. When entering a guilty plea, it is the defendant’s present state of
mind that is at issue, not his past state of mind. Id.
{¶ 11} In the present case, at the June 21, 2018 plea hearing and prior to accepting
appellant’s plea, the court asked him to explain the circumstances surrounding the
charges. Appellant’s counsel interjected that at the time of the incident appellant was
high on methamphetamines:
[s]o he has periods of just not remembering things based on that, so
he is going to try to do the best he can, but I have discussed this with him in
detail. We have gone through the elements of the offenses and so forth, and
I believe that he understands what would be required of the prosecution in
this case to prove beyond a reasonable doubt, but he can remember some
things. He can’t remember everything.
5. {¶ 12} The court then addressed appellant and the following exchange occurred:
Q: [Y]ou must be somehow convinced of the facts of which you are
pleading guilty to.
A: Somewhat.
Q: Do you believe it happened?
A: Not the way it was said that it happened, but I know I was high.
Q: You know?
A: I know I was in the wrong to begin with.
{¶ 13} The court then had the state set forth what evidence it would have
presented had the matter proceeded to trial. The state indicated that the 14 year-old
victim’s account was corroborated by DNA evidence. The court then addressed
appellant:
Q: [A]s to the facts put forth by the State, do you disagree?
A: I disagree, Your Honor.
Q: You do?
A: Yes.
{¶ 14} A recess was then taken for appellant to confer with his counsel.
Thereafter, the following exchange took place:
Q: Mr. Wyatt the State recited some rendition of the facts they
believe to be true. Do you agree or disagree with that?
6. A: I have no choice but to agree.
Q: You do have a choice.
A: I do have a choice, but I am not disputing those because I was
high.
{¶ 15} Appellant’s attorney further explained: “I don’t believe that he does
remember precisely what happened, so at this point he is accepting the facts because he
can’t remember and he can’t dispute the facts, so he has accepted them.”
{¶ 16} At the August 2, 2018 sentencing hearing, appellant stated:
I am very sorry for what I have done wrong. I am not denying that –
I am not saying I didn’t do anything wrong. I am not denying it. I was in
denial, yes, but I am not denying it. I have done wrong. I am here to admit
my wrongs and I stand here, as a man, and admit my wrongs and standing
here, as a man, and accepting it.
{¶ 17} Reviewing the record as a whole, including the transcript of the plea and
sentencing hearings, we find that the trial court did not err when it accepted appellant’s
guilty plea. It is apparent that at the plea hearing appellant was clear-headed, understood
the charges and the possible penalties, understood the rights he was waiving by entering
the plea, and was represented by competent counsel. Further, at sentencing appellant
admitted wrongdoing. Appellant’s assignment of error is not well-taken.
{¶ 18} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair proceeding and the judgment of the Ottawa County Court of
7. Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs
of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.