State v. Barnes , 2014 Ohio 5794 ( 2014 )

[Cite as State v. Barnes, 2014-Ohio-5794.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101419
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LENEL WESLEY BARNES
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574792-A
BEFORE: Jones, P.J., Rocco, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: December 31, 2014
ATTORNEY FOR APPELLANT
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Lenel Barnes appeals his convictions for breaking and entering,
theft, and vandalism. We vacate and remand.
{¶2} In 2014, Barnes pleaded guilty to a 21-count indictment. At the plea hearing the
trial court informed Barnes that he had the right to a trial by jury or by the court, that the state
must prove each and every element of the crime beyond a reasonable doubt, that Barnes had the
right to confront and cross- examine the witnesses against him, and the right to use the court’s
subpoena power to compel the attendance of any witnesses who may testify on his behalf.
The trial court omitted that Barnes could not be compelled to testify and that if he chose to
remain silent at trial, that fact could not be used against him.
{¶3} The trial court explained the possible maximum sentence and informed Barnes of
postrelease control. At the sentencing hearing, the trial court sentenced Barnes to a total of
seven years in prison and ordered he pay restitution in the amount of $33,249.
{¶4} Barnes appealed, raising four assignments of error. See Appendix. The first
assignment of error is dispositive of this appeal.
{¶5} In the first assignment of error, Barnes claims that the trial court erred, and violated
Crim.R. 11, when it did not inform him that he had a privilege against self-incrimination. The
state, pursuant to Loc.App.R. 16(B) has conceded this error.1
1
Loc.App.R. 16(B) provides:
Notice of Conceded Error. When a party concedes an error that is dispositive of the
entire appeal, the party conceding the error shall file a separate notice of conceded
error either in lieu of or in addition to their responsive brief. Once all briefing is
completed, the appeal will be randomly assigned to a merit panel for review. The
appeal will be considered submitted on the briefs unless the assigned panel sets an
{¶6} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d
450 (1996). The standard of review for determining whether a plea was knowing, intelligent, and
voluntary within the meaning of Crim.R. 11 for constitutional issues is strict compliance. State
v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d
86, 92-93, 364 N.E.2d 1163 (1977).
{¶7} In State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the Ohio
Supreme Court held:
[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 (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.
When a trial court fails to strictly comply with this duty, the defendant’s plea is
invalid.
Id. at ¶ 31. If a trial court fails to strictly comply with this duty, the defendant’s plea is invalid.
Id.; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12; State v. Schmick,
8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263.
{¶8} Our review of the record confirms the trial court omitted informing Barnes of his
right against self-incrimination. Because the trial court failed to strictly comply with this
constitutional requirement, we must vacate Barnes’s guilty plea and remand this case for further
proceedings.
{¶9} The remaining assignments of error are moot. See App.R. 12(A)(1)(C).
{¶10} Judgment reversed, plea vacated, and case remanded for further proceedings
oral argument date.
consistent with this opinion.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR
Appendix: Assignments of Error
I. The trial court erred, and violated Criminal Rule 11, when it did not inform
Barnes that he had a privilege against self-incrimination.
II. The trial court erred when it ordered restitution in the amount of $33,249.00
without any evidence on the record that the amount of restitution was based on the
victim’s economic loss, and without considering Barnes’ ability to pay.
III. The trial court erred when it did not make the necessary findings prior to
imposing consecutive sentences, and when it did not incorporate those findings
into its sentencing entry.
IV. The trial court erred when it sentenced Barnes to a total term of seven years
in prison for non-violent felonies of the fourth and fifth degree.