State v. Bettis , 2024 Ohio 5226 ( 2024 )

[Cite as State v. Bettis, 2024-Ohio-5226.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin., J.
-vs- :
:
MERVIN G. BETTIS, : Case No. 2024 CA 00023
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
2023 CR 00784
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 31, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JENNY WELLS BRIAN A. SMITH
Licking County Prosecuting Attorney 123 S. Miller Rd., Suite 250
Akron, Ohio 44333
By: Kenneth W. Oswalt
Assistant Prosecuting Attorney
20 S. Second Street, 4th Floor
Newark, Ohio 43055
Licking County, Case No. 2024 CA 00023 2
Baldwin, J.
{¶1} The appellant appeals his conviction and sentence on the charge of first-
degree misdemeanor theft. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On or about October 25, 2023, the appellant broke into a parked vehicle.
The owner caught and confronted him, at which time he fled. Officers from the Pataskala
Police Department located the appellant in his vehicle fleeing the scene. The appellant’s
vehicle did not display a license plate, and a traffic stop was initiated.
{¶3} The appellant initially denied being involved in the vehicle break-in.
However, the victim’s wallet, multiple credit cards, and phone were found in the
appellant’s vehicle, after which he admitted that he stole the items.
{¶4} The appellant was subsequently charged with the following: Count One,
Breaking and Entering in violation of R.C. 2911.13(B), a fifth degree felony; Count Two,
Theft in violation of R.C. 2913.02(A)(1), a fifth-degree felony; and, Count Three, Theft in
violation of R.C. 2913.02(A)(1), a first-degree misdemeanor. The appellant was arraigned
and pleaded not guilty.
{¶5} The appellant thereafter entered into an agreement with the appellee. An
“Admission of Guilt/No Contest” form was completed and filed on January 17, 2024, which
referenced only the felonies with which the appellant had been charged in Counts One
and Two. It did not reference the first-degree misdemeanor theft charge contained in
Count Three. The form set forth the parties’ jointly recommended sentence of twelve (12)
months in prison, with eighty-four (84) days of jail credit.
Licking County, Case No. 2024 CA 00023 3
{¶6} A change of plea hearing took place on January 17, 2024, following
completion of the form. The trial court engaged in the requisite colloquy, explaining to the
appellant the constitutional rights he was waiving by pleading no contest to all the charges
against him. The following exchange took place during the hearing:
THE COURT: Mr. Wick, would you please present the facts of the
State’s case against the Defendant?
MR. WICK: Yes, Your Honor. On October 25, 2023, the Defendant
broke into a vehicle parked at an address on Morse Road, Pataskala,
Licking County, Ohio. The vehicle owner caught him breaking into the
vehicle, confronted him; he fled. The officers from the Pataskala Police
Department located the Defendant in his vehicle fleeing the scene.
Sergeant Smith called for additional units. A Mazda, which was being driven
by the Defendant, did not have a license plate. A traffic stop was initiated.
Contact was made. Defendant indicated that the license plate kept falling
off, and he kept it in the vehicle somewhere. The Defendant initially denied
being involved in the matter; however, once a wallet belonging to the victim,
[N.B.], was located along with multiple credit cards and a phone, Defendant
admitted to having stolen the items. As a result, the State of Ohio believes
that the Defendant is guilty of breaking and entering, theft as a felony of the
fifth agree [sic] for his theft of credit cards, theft as a misdemeanor for the
theft of the phone.
Thank you, Your Honor.
THE COURT: Thank you, Mr. Wick.
Licking County, Case No. 2024 CA 00023 4
BY THE COURT:
Q: Mr. Bettis, do you agree with those facts that have been set forth by
the State?
A: Yes, sir.
* * *
Q: Do you understand, Mr. Bettis, that should the Court permit you to
change your plea here today, should the Court then enter guilty findings,
generally all that would remain to be done is to proceed with sentencing,
and the maximum sentence on these three counts would consist of a term
of two years at a state penitentiary, a fine of $6,000, possibly some
restitution, and up to two years of post-release control?
Do you understand that?
A: Yes, sir.
* * *
THE COURT: Now, Mr. Bettis, the Court finds your no contest pleas
to be freely, voluntarily, and understandingly made. The Court finds the
Defendant to be satisfied with services of counsel. The Court permits the
Defendant to withdraw his earlier made pleas of not guilty, and I’ll accept
your no contest pleas. The Court further finds there’s been a factual basis
presented, that the Defendant agrees with those facts that have been
presented, and the Court finds the Defendant to be guilty as charged as set
forth in the three counts of the indictment.
Licking County, Case No. 2024 CA 00023 5
Ms. See, is there anything you’d like to say on behalf of Mr. Bettis
before the Court might impose any sentence here today?
MS. SEE: Just briefly, Your Honor. We had prepared for trial
today; however, Mr. Bettis has decided to plead no contest to the charges
in order to avoid that process and resolve this case. Mr. Bettis is prepared
to accept the sentence of the Court in this matter. With that being said, Mr.
Bettis was not under any type of supervision when this case occurred, and
while he does have some criminal history, he has not had any felony
convictions since I believe 2011. We would just ask the Court to consider
the 12 months discussed prior as a resolution in this matter, Your Honor.
Thank you.
THE COURT: Thank you.
Mr. Bettis, is there anything you’d like to say on your own behalf before the
Court imposes any sentence here?
DEFENDANT: There isn’t. No, sir.
{¶7} The language utilized throughout the hearing addressed all three counts
with which the appellant had been charged, including the Count Three misdemeanor
charge. Neither the appellant nor his trial counsel objected to or otherwise commented
on the numerous references to all three counts during the hearing, despite the fact that
both were asked if they had anything to say regarding the proceedings and the appellant’s
pleas of no contest.
{¶8} The trial court proceeded to sentence the appellant at the conclusion of the
hearing, imposing “a term of one year in the state penitentiary on Count No. 1, one year
Licking County, Case No. 2024 CA 00023 6
in the state penitentiary on Count No. 2, six months on Count No. 3 to run concurrently
with each other for a one year prison term.” Further, the trial court granted the appellant
“84 days of jail time credit towards that 12 month sentence.” This is precisely the sentence
jointly recommended by the parties in the “Admission of Guilt/No Contest” form.
{¶9} The trial court filed a Judgment Entry on January 17, 2024, following the
hearing, documenting the appellant’s appearance at the hearing on three charges and
his request for leave of court to waive his right to a jury trial and enter pleas of no contest
to the charges against him. The Judgment Entry further documented the court’s
acceptance of the no contest pleas, and the appellant’s sentence to “an aggregate term
of one (1) year in the state penitentiary” with 84 days of jail credit.
{¶10} The appellant filed a timely Notice of Appeal in which he sets forth the
following sole assignment of error:
{¶11} “I. APPELLANT’S CONVICTION AND SENTENCE ON COUNT THREE OF
THE INDICTMENT, THEFT, A FIRST-DEGREE MISDEMEANOR, WAS CONTRARY TO
LAW, BECAUSE APPELLANT DID NOT ENTER A NO CONTEST PLEA TO COUNT
THREE OF THE INDICTMENT, IN VIOLATION OF APPELLANT’S RIGHTS TO TRIAL
AND TO DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 5 AND 16 OF THE
OHIO CONSTITUTION.”
{¶12} The appellant submits that he did not enter a no contest plea to the Count
Three misdemeanor charge, and as a result his conviction on said charge must be
vacated. We disagree.
Licking County, Case No. 2024 CA 00023 7
STANDARD OF REVIEW
“When a criminal defendant seeks to have his conviction reversed
on appeal, the traditional rule is that he must establish that an error occurred
in the trial-court proceedings and that he was prejudiced by that error.” State
v. Dangler, 2020-Ohio-2765, ¶ 13, citing State v. Perry, 2004-Ohio-297, ¶
14-15; State v. Stewart, 51 Ohio St.2d 86, 93 (1977); Crim.R. 52. However,
the Supreme Court has recognized two exceptions to the “prejudice
component of that rule in the criminal plea context.” Id. at ¶ 14. The first one
applies when a court “fails to explain the constitutional rights that a
defendant waives by pleading guilty or no contest, we presume that the plea
was entered involuntarily and unknowingly, and no showing of prejudice is
required.” Id. The second is “a trial court's complete failure to comply with a
portion of Crim.R.11(C) eliminates the defendant's burden to show
prejudice.” Id. at ¶ 15, citing State v. Sarkozy, 2008-Ohio-509, ¶ 22.
“Aside from these two exceptions, the traditional rule continues to
apply: a defendant is not entitled to have his plea vacated unless he
demonstrates he was prejudiced by a failure of the trial court to comply with
the provisions of Crim.R. 11(C).” Dangler at ¶ 16, citing Nero, 56 Ohio St.3d
106, 108, (1990). “The test for prejudice is ‘whether the plea would have
otherwise been made.’ ” Id.State v. Peterson, 2024-Ohio-3276, ¶¶ 27-28. The trial court herein explained to the
appellant the constitutional rights he was foregoing in pleading no contest to the charges
against him, and otherwise complied with the provisions of Crim.R. 11(C). Thus, he is not
Licking County, Case No. 2024 CA 00023 8
entitled to have his no contest plea to Count Three vacated unless he satisfies his burden
to show prejudice.
ANALYSIS
{¶13} Crim.R. 11 addresses pleas and rights upon pleas, and states in pertinent
part:
(A) Pleas. A defendant may plead not guilty, not guilty by reason
of insanity, guilty or, with the consent of the court, no contest. A plea of not
guilty by reason of insanity shall be made in writing by either the defendant
or the defendant's attorney. All other pleas may be made orally either in-
person or by remote contemporaneous video in conformity with Crim.R.
43(A)….
(B) Effect of Guilty or No Contest Pleas. With reference to the
offense or offenses to which the plea is entered:
(1) The plea of guilty is a complete admission of the defendant's
guilt.
(2) The plea of no contest is not an admission of defendant's guilt,
but is an admission of the truth of the facts alleged in the indictment,
information, or complaint, and the plea or admission shall not be used
against the defendant in any subsequent civil or criminal proceeding.
(3) When a plea of guilty or no contest is accepted pursuant to
this rule, the court, except as provided in divisions (C)(3) and (4) of this rule,
shall proceed with sentencing under Crim. R. 32.
(C) Pleas of Guilty and No Contest in Felony Cases.
Licking County, Case No. 2024 CA 00023 9
* * *
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally either in-person or by
remote contemporaneous video in conformity with Crim.R. 43(A) and doing
all of the following:
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(c) 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 beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
* * *
If the indictment contains no specification, and a plea of guilty or no
contest to the charge is accepted, the court shall impose the sentence
provided by law.
Licking County, Case No. 2024 CA 00023 10
* * *
(4) With respect to all other cases the court need not take testimony
upon a plea of guilty or no contest.
(D) Misdemeanor Cases Involving Serious Offenses. In
misdemeanor cases involving serious offenses the court may refuse to
accept a plea of guilty or no contest, and shall not accept such plea without
first addressing the defendant personally and informing the defendant of the
effect of the pleas of guilty, no contest, and not guilty and determining that
the defendant is making the plea voluntarily….
* * *
(F) Negotiated Plea Cases. When a negotiated plea of guilty or no
contest to one or more offenses charged or to one or more other or lesser
offenses is offered, the underlying agreement upon which the plea is based
shall be stated on the record in open court. To the extent required by Article
I, Section 10a of the Ohio Constitution or by the Revised Code, before
accepting the plea, the trial court shall allow an alleged victim of the crime
to raise any objection to the terms of the plea agreement.
{¶14} The trial court engaged in the requisite colloquy with the appellant in
compliance with Crim.R. 11(C). Thus, the pertinent question is whether the appellant has
been prejudiced by some failure on the part of the trial court.
{¶15} The facts in Peterson, supra, are analogous to the facts herein. In Peterson,
the defendant initially pleaded not guilty to several charges, but thereafter changed his
plea. During the change of plea hearing the trial court addressed the counts to which the
Licking County, Case No. 2024 CA 00023 11
defendant was pleading guilty, and also discussed the defendant’s agreement to forfeit
$1,032. The defendant was found guilty of the charges for which he changed his plea,
and his sentence included forfeiture of $1,032. The defendant appealed, arguing, inter
alia, that forfeiture was improper because there was no reference to forfeiture in the
written plea agreement, and that the court of appeals should “defer to the written plea and
determine that forfeiture was not part of any agreement.” Id. at ¶38. The court of appeals
disagreed, stating:
Peterson claims that the State failed to comply with the requirements
in the forfeiture statutes in executing the forfeitures. “Questions of the
application and interpretation of a statute present a question of law we
review de novo.” Bandaru v. State, 2024-Ohio-1490, ¶ 8 (10th Dist.), citing
Turner v. Certainteed Corp., 2018-Ohio-3869, ¶ 11. However, Peterson
never objected to any such alleged failures during his change-of-plea
hearing, which means we employ a plain error analysis. State v. West,
2022-Ohio-1556, ¶ 22, citing State v. Rogers, 2015-Ohio-2459, ¶ 21-22.
Under a plain error analysis, “the defendant bears the burden of ‘showing
that but for a plain or obvious error, the outcome of the proceeding would
have been otherwise, and reversal must be necessary to correct a manifest
miscarriage of justice.’ ” Id., quoting State v. Quarterman, 2014-Ohio-4034,
¶ 16. “An appellate court has discretion to notice plain error and therefore
‘is not required to correct it.’ ” Id., citing Rogers at ¶ 23.
Id. at ¶44.
Licking County, Case No. 2024 CA 00023 12
{¶16} Neither the appellant nor his trial counsel objected to the trial court’s
repeated references during the change of plea hearing to all three counts, including the
first-degree misdemeanor count. Thus, the appellant must show that but for a plain or
obvious error, the outcome of the proceedings would have been different, and reversal is
necessary to correct a manifest miscarriage of justice. The appellant has failed to meet
this burden, particularly in light of the numerous references to all three counts during the
hearing and the fact that neither the appellant nor his trial counsel sought to correct the
same.
{¶17} The Peterson court went on the state:
. . . Rather, critical in determining whether the forfeiture is permissible is
whether there is evidence that the forfeiture was part of the defendant's plea
agreement. . . . Consequently, even absent an indication in a written plea
agreement that forfeiture is part of the plea, if other evidence shows that the
forfeiture was part of the plea, compliance with statutory requirements for
forfeiture is unnecessary. Therefore, the trial court did not err, let alone
commit plain error, in finding that Peterson's plea included forfeiture of the
$1,032 even though it was not reflected in a written plea agreement.
Written documents aside, Peterson also asserts that there is no
evidence in the record that forfeiture of the $1,032 was part of his guilty
plea. In addition to counts 4 and 5, Peterson also pleaded guilty to counts
9 and 10. Each of those counts included a specification indicating that
Peterson would forfeit $1,032. Moreover, during the change-of-plea
hearing, the court several times alluded to the fact that Peterson's plea
Licking County, Case No. 2024 CA 00023 13
agreement included the forfeiture of $1,032 that was confiscated as
contraband when he was arrested. Peterson never objected to the
forfeiture. In fact, in its initial discussion about the forfeiture being part of
Peterson's guilty plea, the court mistakenly stated that the amount of the
forfeiture was $132, which resulted in the following exchange: Defense
counsel: “Is it a $1,032 or $132?” Peterson: “Thousand.” Court: “No, I am
sorry it is $1,032.”
If Peterson did not believe that his plea included a forfeiture of
$1,032, then he had ample opportunity to object but neither he nor his
attorney did so. Therefore, we find the record supports that Peterson
understood that forfeiture of the $1,032 was part of his plea agreement.
Accordingly, we reject his argument that his guilty plea did not include
forfeiture of $1,032.
Id. at ¶48-50.
{¶18} Similarly, the appellant and his attorney had ample opportunity to correct
the trial court regarding his no contest plea to Count Three during the change of plea
hearing. Neither did so. Thus, we may employ a plain error analysis. Under this analysis,
the appellant bears the burden of showing that but for a plain or obvious error the outcome
of the proceeding would have been otherwise, and reversal is necessary to correct a
manifest miscarriage of justice.
{¶19} In this case, even absent a reference to Count Three in the “Admission of
Guilt/No Contest” form, there is sufficient evidence on the record during the January 17,
2024, hearing that the appellant intended to plead to Count Three. The appellant has
Licking County, Case No. 2024 CA 00023 14
failed to establish that the outcome of the proceedings would have been different, or that
reversal is necessary to correct a manifest miscarriage of justice. The trial court did not
err, let alone commit plain error, in finding that the appellant’s no contest plea included
Count Three even though it was not reflected in a written form, particularly since the
outcome of the proceeding would not have differed, as the appellant was sentenced to
an aggregate term of one year in prison with 84 days of jail time credit towards that 12
month sentence - precisely the sentence that was jointly recommended by the parties in
the written form and referenced by appellant’s counsel during the change of plea hearing.
CONCLUSION
{¶20} Based upon the foregoing, the appellant’s sole assignment of error is
overruled, and the decision of the Licking County Court of Common Pleas is hereby
affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.