State v. Hermes , 2023 Ohio 2011 ( 2023 )

[Cite as State v. Hermes, 2023-Ohio-2011.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-22-026
OT-22-027
Appellee
Trial Court No. 20 CR 248
21 CR 065
v.
Nathan D. Hermes DECISION AND JUDGMENT
Appellant Decided: June 16, 2023
*****
James J. VanEerten, Ottawa County Prosecuting Attorney and
Thomas A. Matuszak, Assistant Prosecuting Attorney, for appellee.
Brian A. Smith, for appellant.
*****
OSOWIK, J.
{¶ 1} This is a consolidated appeal from four judgments of the Ottawa County Court
of Common Pleas which, following entry of guilty pleas in two criminal cases, found
appellant guilty of a total of six counts of gross sexual imposition and sentenced him to an
aggregate prison term of 30 years. For the reasons set forth below, this court reverses the
judgments of the trial court.
I. Background
{¶ 2} On December 7, 2020, plaintiff-appellee, state of Ohio, charged appellant, by
Bill of Information, with five counts of gross sexual imposition, each a violation of R.C.
2907.05(A)(4), and third-degree felonies under R.C. 2709.05(C)(2). The Bill of
Information alleged that defendant-appellant, Nathan D. Hermes, had sexual contact with
one victim under the age of 13 three times between October 7 and 22, 2020, once between
November 1 and 12, and once on November 13. The incidents occurred in Ottawa County,
Ohio, at a babysitting service operated by appellant’s parents. The case was assigned No.
2020-CR-I-248A, appellant waived presentation of the counts to the grand jury, and
appellant originally pled not guilty to all charges.
{¶ 3} Then on April 1, 2021, an Ottawa County Grand Jury indicted appellant on
three counts of rape, each a violation of R.C. 2907.02(A)(1)(b), and first-degree felonies
under R.C. 2907.02(B), and on ten counts of gross sexual imposition, each a violation of
R.C. 2907.05(A)(4), and third-degree felonies under R.C. 2709.05(C)(2). The indictments
allege that appellant had sexual contact and/or sexual conduct 13 times with three victims
under the age of 13 between May 4, 2002 and October 17, 2005. The incidents occurred in
Ottawa County, Ohio, at a babysitting service operated by appellant’s parents. The case
was assigned No. 2021-CR-I-065A, and appellant originally pled not guilty to all charges.
{¶ 4} After the parties conducted discovery and held plea negotiations for both
criminal cases, appellant changed his pleas on November 29, 2021. In case No. 2020-CR-
I-248A, appellant offered guilty pleas to two counts of gross sexual imposition, and
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appellee agreed to dismiss the remaining three counts of gross sexual imposition. In case
No. 2021-CR-I-065A, appellant offered guilty pleas to four counts of gross sexual
imposition, after appellee amended two rape charges to gross sexual imposition, and
appellee agreed to dismiss the third rape count and the remaining eight counts of gross
sexual imposition.
{¶ 5} The trial court then conducted a lengthy plea colloquy and reviewed with
appellant the “rather complicated Plea Agreement” in each criminal case as a “global
resolution” to both cases. On November 29, the separate plea agreements for case Nos.
2020-CR-I-248A and 2021-CR-I-065A were filed in the record of their respective dockets.
The plea agreements are signed by appellant, appellant’s counsel, and appellee’s counsel.
Relevant to this appeal, each plea agreement contains the following clause to which
appellant separately wrote by hand his initials for acceptance:
I understand by pleading guilty, I give up my right to a jury trial or
court trial, where I could see and have my attorney question witnesses against
me, and where I could use the power of the Court to call witnesses to testify
for me. I know at trial I would not have to take the witness stand, I could not
be forced to testify against myself, and that no one could comment if I chose
not to testify. I understand that I waive my right to have the prosecutor prove
my guilt beyond a reasonable doubt.
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{¶ 6} The trial court read most, but not all, of each plea agreement into the record.
Appellant assented in the record to all of the trial court’s questions of his understandings
of the consequences of offering the guilty pleas.
Court: And you understand everything we’ve talked about in the Plea
Agreement so far, correct?
A: Yes, sir.
***
Court: Did you read these over carefully before you signed them?
A: Yes, sir, I did.
Court: And everything that’s in here, everything we’ve talked about
is the agreement you have with the State of Ohio, correct?
A: Yes, sir.
{¶ 7} The foregoing plea agreement clause where appellant waived his right to a
jury trial or court trial was not read verbatim by the trial court into the record. Rather, the
trial court said the following:
Court: Let’s talk about your right to a trial. You have the right to have
a trial in this matter to make the State prove the allegations against you. They
would need to prove each and every element of the offense with which you’re
charged beyond a reasonable doubt. That’s the standard that’s used in
criminal cases. Each and every element would be the date, the place, and the
particular things you’re alleged to have done to break the law. During the
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course of that trial, the State would bring witnesses forth and they would
testify against you and you * * * would have the right to cross-examine. You
could subpoena your own witnesses who could come in and testify for you
on your side, and you would have the right to remain silent. Nobody could
make you testify. Nobody could make you say a word. If you wished to
remain silent, your silence couldn’t be used against you for any reason
whatsoever. Do you understand?
A: Yes, sir.
Court: Those are constitutionally guaranteed rights that you have. If
you wish to enter a guilty plea, you’re not going to have trial in this matter.
Do you understand that it would require you to give up those rights to a trial
that I just described?
A: Yes, sir.
Court: And do you give up your right to a trial?
A: Yes, sir, I do.
{¶ 8} After details of all of the offenses were either admitted by appellant into the
record or added by appellee into the record, the trial court asked appellant, “Is that all
accurate?” Appellant replied, “Yes, Your Honor.”
{¶ 9} The trial court then stated in the record the following before reviewing, again,
the six offenses to which appellant was offering guilty pleas, accepting those guilty pleas,
and finding him guilty of the six offenses:
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Court: Let the record reflect the Defendant is making a knowing,
intelligent, voluntary decision to withdraw his previous plea of not guilty and
tender pleas of guilt. Court finds he’s been informed of his constitutional
rights. He understands the nature of the charge, the effect of the guilty plea,
and the penalties that could be imposed.
{¶ 10} Judgment entries accepting appellant’s guilty pleas in each criminal case
were journalized on June 9, 2022.
{¶ 11} Sentencing for both criminal cases occurred on June 2, and by nunc pro tunc
journalized entry on June 7, the trial court ordered, among other matters, appellant to serve
60-month prison terms for each of the six felony offenses, to run consecutively to each
other, “for a total incarceration period of thirty (30) years in the Ohio Department of
Rehabilitation and Corrections.”
{¶ 12} Appellant timely filed on June 8, his notice of appeal to case No. 2020-CR-
I-248A, assigned appeal No. OT-22-026, and his notice of appeal to case No. 2021-CR-I-
065A, assigned appeal No. OT-22-027. On June 13, this court consolidated the appeals.
{¶ 13} Appellant sets forth four assignments of error:
1. The trial court plainly erred in sentencing Appellant to a mandatory term of
imprisonment, where Appellant’s convictions did not meet the criteria for
mandatory sentencing under either R.C. 2929.13(F)(3) or R.C.
2907.05(C)(2).
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2. The failure of Appellant’s trial counsel to object to the imposition of
imprisonment constituted ineffective assistance of counsel, in violation of
Appellant’s right to counsel under the Sixth and Fourteenth Amendments to
the United States Constitution and Article I, Section 10 of the Ohio
Constitution.
3. Appellant’s guilty pleas were not knowingly, voluntarily, and intelligently
made because the trial court did not advise Appellant that he would be giving
up his right to a jury trial by entering a guilty plea, in violation of Crim.R. 11
and Appellant’s right to Due Process under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10 of
the Ohio Constitution.
4. The trial court’s imposition of consecutive sentences under R.C.
2929.14(C)(4) was not supported by the record.
{¶ 14} In lieu of filing a responsive brief, on December 6, 2022, appellee filed a
“Notice of Conceded Error” pursuant to 6th Dist.Loc.App.R. 10(H), which states, “If a
party has conceded reversible error in the filing of a brief, that party and/or the opposing
party, shall file a notice or joint notice of conceded error with the clerk within 10 days
advising the court of the conceded error.” In its notice citing to State v. Miller, 159 Ohio
St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 17, and to State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus, appellee conceded appellant’s third
assignment of error that the “trial court failed to strictly comply with Crim.R. 11(C)(2)(c)
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and orally inform the Defendant-Appellant that he had a constitutional right to a jury
trial, as opposed to a constitutional right to a trial, generally.” Appellee urged this court to
sustain appellant’s third assignment of error, dismiss as moot the remaining assignments
of error, vacate appellant’s convictions and sentences, and remand the matter to the trial
court.
{¶ 15} Concurrently, appellant filed a motion for remand on December 6, on his
first assignment of error. Appellant argued appellee agreed to remand on the first
assignment of error in order for the trial court to resentence appellant to non-mandatory
prison terms for the six offenses, which would make appellant eligible for judicial release
under R.C. 2929.20. Appellant argued a remand on the first assignment of error to the
trial court is necessary “for implementation of the parties’ agreement as to plea and
sentencing, reached in light of the facts and circumstances of the case.”
{¶ 16} Appellant acknowledged that appellee notified him of the intent to concede
appellant’s third assignment of error, but appellant no longer wanted this court to
consider his third assignment of error: “If the case were to be remanded to the trial court
on this specific error, this would severely prejudice Appellant, since Appellant could
potentially no longer receive the benefit of the previous plea bargain.” Appellant urged
this court to find as moot appellee’s concession to appellant’s third assignment of error
“in light of the parties’ previous agreement.”
{¶ 17} The next day, on December 7, appellant filed his response to appellee’s
notice of concession to appellant’s third assignment of error, or, alternatively, a motion to
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withdraw his third assignment of error. Appellant argued the notice was “a direct
violation of the parties’ agreement.” Appellant argued the “agreement was made
specifically in order to avoid conceded error on this issue.” (Empasis sic.) In the event
this court set aside appellee’s notice of concession, then appellant urged this court to
grant his motion to withdraw his third assignment of error.
{¶ 18} On February 8, 2023, this court denied appellant’s motion to remand and
motion to withdraw his third assignment of error: “In the event the matter is remanded
pursuant to the concession of error, the trial court will consider the nature and impact of
the parties’ discussions on further proceedings.”
{¶ 19} At the oral arguments held on March 8, appellant, again, argued that this
court has the authority to construe appellee’s concession of error to apply only to the first
assignment of error, pursuant to the new post-appeal agreement on sentencing between
the parties, and to render as moot the second, third, and fourth assignments of error. In
response, appellee argued the post-appeal agreement is reflected in the revised plea
agreements signed by appellee’s counsel and delivered to appellant’s counsel. The new
plea agreements reflect the agreement to recommend non-mandatory, consecutive
sentences to the trial court. In order for the post-appeal plea agreements to be
implemented by the trial court, appellee conceded the third assignment of error in order
for this court to vacate the convictions and sentences and remand the matter to the trial
court.
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II. Concession of Error
{¶ 20} The jurisdictional issue before us is whether appellant’s third assignment of
error, as conceded by appellee, is dispositive of his appeal, or whether, as appellant now
argues, the post-appeal negotiations between the parties prevails, and appellant’s first
assignment of error is dispositive. We answer that appellant’s third assignment of error is
dispositive.
{¶ 21} As a preliminary matter, this court acquired jurisdiction upon appellant’s
filing of his notice of appeal from the trial court’s final judgment pursuant to App.R.
3(A); Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320, 322, 649 N.E.2d 1229, 1231
(1995) (“Pursuant to App.R. 3(A), the only jurisdictional requirement for the filing of a
valid appeal is the timely filing of a notice of appeal.”). “The power to review a notice of
appeal to determine if it invokes the jurisdiction of this court rests solely with this court.”
In re Terrance P., 124 Ohio App.3d 487, 489, 706 N.E.2d 801 (6th Dist.1997).
{¶ 22} Appellant filed his brief on October 19, 2022, arguing four assignments of
error, and he has not dismissed his appeal. Unless the appeal is otherwise validly
dismissed, this court reviews the merits of each of appellant’s assignments of error set
forth in his brief. App.R. 12(A)(1)(b).
{¶ 23} The scope of our review of the merits of appellants assignments of error is
limited to the completed record filed by the clerk of the trial court under App.R. 11(B).
“The original papers and exhibits thereto filed in the trial court, the transcript of
proceedings, if any, including exhibits, and a certified copy of the docket and journal
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entries prepared by the clerk of the trial court shall constitute the record on appeal in all
cases.” App.R. 9(A)(1). The post-appeal negotiations between appellant and appellee to
which appellant argues this court has authority to review and enforce is simply not in the
record of this case.
{¶ 24} Appellant’s third assignment of error argues his guilty pleas were not made
knowingly, voluntarily, and intelligently because the trial court “did not strictly comply
with Crim.R. 11 in informing Hermes of his constitutional rights. Although it discussed
with him his right to ‘a trial,’ it did not specify that Hermes had a right to a trial by jury.”
Appellant argues that he “would have chosen to plead his case in front of a jury, rather
than plead guilty * * * [because he] entered his plea on the false assumption that the trial
court – not a jury – would hear the evidence and decide his guilt.” Appellee concedes
Crim.R. 11(C)(2)(c) error pursuant to 6th Dist.Loc.App.R. 10(H).
{¶ 25} Crim.R. 11(C)(2)(c) states:
In felony cases the court may refuse to accept a plea of guilty * * *
and shall not accept a plea of guilty * * * without first addressing the
defendant personally * * * and doing all of the following: * * * 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
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beyond a reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
{¶ 26} Despite appellee’s concession to the third assignment of error, we are not
mandated to accept it without further review. See State v. Wright, 6th Dist. Lucas No. L-
20-1206, 2022-Ohio-1537, ¶ 130. However, if the trial court error is clear, we will accept
the concession as part of our analysis. Toledo v. Brock, 6th Dist. Lucas No. L-15-1170,
2016-Ohio-2866, ¶ 9; see State v. Trotter, 8th Dist. Cuyahoga No. 101218, 2015-Ohio-
416, ¶ 4-6 (conceded error on clear record of failure to advise defendant of Crim.R. 11
rights prior to accepting guilty pleas).
{¶ 27} A defendant entering a plea in a criminal case must do so knowingly,
intelligently and voluntarily, and the failure of any one element renders enforcement of
that plea unconstitutional. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164
N.E.3d 286, ¶ 10. The three-part inquiry on appeal is: “(1) has the trial court complied
with the relevant provision of the rule? (2) if the court has not complied fully with the
rule, is the purported failure of a type that excuses a defendant from the burden of
demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant
met that burden?” Id. at ¶ 17.
{¶ 28} Appellant’s argument that he would not have entered six felony guilty pleas
if he thought he could plead his case to 18 felony offenses in front of a jury is
contradicted, in part, by his own arguments on appeal. On the one hand, he sought to
withdraw his third assignment of error as an alternative to opposing appellee’s concession
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of error. Such withdrawal indicates he did make his six felony guilty pleas knowingly,
voluntarily, and intelligently. On the other hand, appellant argues that, even upon remand
he is not seeking a jury trial, but seeking the benefit of his post-appeal negotiations with
appellee: non-mandatory sentences for judicial release eligibility. Appellant further
argues he is prejudiced, not because he erroneously offered his guilty pleas, but because
if we remand after vacating his guilty pleas under his third assignment of error, he loses
the post-appeal plea bargain for his non-mandatory sentence, which is the subject of his
first assignment of error. Yet to reach his first assignment of error, appellant must first
concede his conviction to the six felonies. We are not persuaded.
{¶ 29} We find the record contains both written plea agreements in which
appellant specifically initialed he understood he was waiving both “a jury trial or court
trial” in each criminal case. However, during the plea colloquy with appellant the trial
court used the phrase “a trial” rather than a “jury trial,” and the question before us is
whether the trial court strictly complied with Crim.R. 11(C)(2)(c) before accepting
appellant’s guilty pleas. State v. Brinkman, 165 Ohio St.3d 523, 2021-Ohio-2473, 180
N.E.3d 1074, ¶ 12. “[S]ubstantial compliance will not do.” Id. at ¶ 17. Where we do not
find strict compliance from the trial court’s plea colloquy, the trial court’s failure to
inform a defendant of the constitutional right to a jury trial under Crim.R. 11(C)(2)(c)
invalidates the plea. Id. at ¶ 1.
{¶ 30} We find the trial court did not strictly comply with Crim.R. 11(C)(2)(c)
with respect to appellant’s constitutional right to a jury trial, and his six guilty pleas are
13.
invalid. We vacate appellant’s conviction and sentence and remand the matter to the trial
court. Consistent with our previous order, we make no decision in our remand for how
the trial court will consider the nature and impact, if any, of the parties’ ongoing
negotiations.
{¶ 31} Appellant’s third assignment of error is well-taken. In light of our decision
on the third assignment of error, appellant’s first, second, and fourth assignments of error
are rendered moot. App.R. 12(A)(1)(c).
III. Conclusion
{¶ 32} On consideration whereof, the June 9, 2022 journalized judgment of
conviction and the June 7 nunc pro tunc journalized judgment of sentencing by the
Ottawa County Court of Common Pleas in case No. 2020-CR-I-248A are reversed and
vacated. On further consideration whereof, the June 9, 2022 journalized judgment of
conviction and the June 7 nunc pro tunc journalized judgment of sentencing by the
Ottawa County Court of Common Pleas in case No. 2021-CR-I-065A are reversed and
vacated.
{¶ 33} We remand the matters to the trial court for further proceedings consistent
with our decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R.
24(A)(4).
Judgment reversed
and remanded.
14.
State of Ohio v.
Nathan D. Hermes
C.A. Nos. OT-22-026,
OT-22-027
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Charles E. Sulek, 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/.
15.