State v. Fenstermaker

[Cite as State v. Fenstermaker, 2022-Ohio-1540.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Earle E. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case Nos. 21CAA090044
TONY FENSTERMAKER : 21CAA090045
:
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County
Court of Common Pleas, Case Nos. 21CRI
120772 & CRI 031076
JUDGMENT: Affirmed in part; Reversed in part & Remanded
in part
DATE OF JUDGMENT ENTRY: May 6, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL CHRISTOPHER S. MAHER
Delaware Prosecutor The Bradley Building
BY: JOEL C. WALKER 1220 West 6th Street, Ste. 303
145 North Union Street, 3rd Floor Cleveland, OH 44113
Delaware, OH 43015
Delaware County, Case No. 21CAA090044 21CAA090045 2
Gwin, J.,
{¶1} Defendant-appellant, Tony Fenstermaker [“Fenstermaker”], appeals from
his convictions in the Delaware County Court of Common Pleas after pleading guilty to
four counts of Pandering Sexually Oriented Material Involving a Minor, and two counts of
Gross Sexual Imposition in Case No. 20 CRI 12 07721 and one count of Having Weapons
While Under a Disability in Case No. 21 CRI 03 01762.
Facts and Procedural History
{¶2} On December 10, 2020 Fenstermaker was indicted for seven counts of
Pandering Sexually Oriented Matter Involving a Minor, felonies of the second degree,
and two counts Gross Sexual Imposition, felonies of the fourth degree, in case number
20 CRI 12 0772.
{ ¶ 3 } On March 26 2021, Fenstermaker was indicted for three counts of
Having Weapons Under Disability in Case No. 21 CRI 03 0176.
{¶4} The parties subsequently reached a resolution on both cases and a plea
hearing was set for June 29, 2021. A visiting judge presided over the June 29, 2021
hearing. A Crim.R.11(F) plea agreement was signed by Fenstermaker and his attorney
in each case on June 28, 2021. The agreements were filed in each case on June 30,
2021.
{¶5} On June 29, 2021, the plea hearing began with the 20 CRI 12 0772 case.
Pursuant to the plea agreement, the state dismissed counts 5, 6, and 7 of the Indictment.
Plea T., June 29, 2021 at 6. The Court then proceeded,
1 Fifth District Delaware No. 21 CAA 09 0044
2 Fifth District Delaware No. 21 CAA 09 0045
Delaware County, Case No. 21CAA090044 21CAA090045 3
THE COURT: Okay. So, Mr. Fenstermaker, are you voluntarily
pleading guilty to Counts 1 through 4, the pandering charges, second
degree felonies, and Counts 8 and 9, gross sexual imposition, fourth degree
felonies? Are you voluntarily pleading guilty to those charges?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you aware that when you enter a guilty plea to
these charges, you allow the Court to find you guilty and you give up a
number of constitutional rights?
You give up the right to have a jury trial on these charges. At that
trial you'd have a right to confront and cross-examine anyone who testifies
against you.
You'd have a right to issue subpoenas to get witnesses here to testify
on your behalf.
You'd have the right to require the State to prove your guilt beyond a
reasonable doubt.
You'd have the right to remain silent throughout the trial.
And you would have the right to appeal if any Court rulings or jury
verdicts or Court verdicts went against you in a trial.
Are you voluntarily giving up those rights with regard to these four
second degree felonies of pandering and these two fourth degree felonies
of gross sexual imposition?
THE DEFENDANT: Yes, Your Honor.
Delaware County, Case No. 21CAA090044 21CAA090045 4
Plea T., June 29, 2021 at 6-7. The trial court continued with the colloquy in compliance
with Crim.R. 11(C)(2)(a) and (b) by informing Fenstermaker of the nature of the charges
against him, the maximum penalties involved, his eligibility for probation, and the required
sex offender registration associated with the convictions. Id. at 7-8. Fenstermaker
acknowledged he understood. Id. The trial court inquired if any promises or threats were
made to Fenstermaker to obtain his plea. Id. at 8. Fenstermaker answered in the
negative. Id. The trial court further inquired if the Fenstermaker understood a guilty plea
is an admission to the truth of the charges against him. Id. Fenstermaker again confirmed
he understood. Id. The trial court further reviewed the Tier I sexual classification
registration and reporting requirements with Fenstermaker. Plea T. June 29, 2021 at 8-
9. Fenstermaker informed the trial judge that he had been advised and understood the
sexual offender classification and reporting requirements. Id. at 9.
{¶6} The trial court then requested the state provide a statement of facts
concerning the 20 CRI 12 0772 case. During this recitation, some confusion arose
between the parties. The state insisted that Fenstermaker had touched the “vagina” of
the victim; the defenses preferred the state use the term “erogenous zone.” Plea T. June
29, 2021 at 10-19. The trial judge and counsel then entered into a discussion wherein all
parties agreed the distinction would have no effect on the plea agreement. Id. at 11, 13,
14. At the time, the state was unwilling to amend its statement of facts. The parties
agreed to continue the hearing for Fenstermaker to review discovery previously restricted
to counsel only. Id. at 20-21. The plea was continued to the next day, June 30, 2021.
{¶7} The parties returned the next day on June 30, 2021 to complete the plea.
The trial court announced the cases and then proceeded to advise Fenstermaker of the
Delaware County, Case No. 21CAA090044 21CAA090045 5
maximum penalties and fines with respect to the 20 CRI 12 0772 case. The trial court
further informed Fenstermaker of the mandatory sex offender registration. The trial court
then advised Fenstermaker of the potential for post-release control and the
consequences for violating this supervision. Fenstermaker confirmed he understood.
The state then recited the statement of facts, changing its previous language to include
the touching of "multiple erogenous zones" rather than the touching of breasts and vagina.
No changes were made to the plea agreement. The trial court again inquired if the
Fenstermaker was pleading voluntarily, and then Fenstermaker responded in the
affirmative. The trial court also inquired if any promises or threats were made to obtain
Fenstermaker’s plea. Fenstermaker responded in the negative. The trial court then held
the following colloquy with Fenstermaker:
THE COURT: Okay. Thank you. Do you admit that you committed
the crimes of sexual -- of pandering sexually oriented material involving a
minor as alleged in Counts 1, 2, 3, and 4? Do you admit that you committed
those crimes?
THE DEFENDANT: Yes. Yes, Your Honor.
THE COURT: And do you admit that you committed the crime of
gross sexual imposition as alleged in Counts 8 and 9?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Do you understand the nature of the charges
and the possible defenses that you might have?
THE DEFENDANT: I do, Your Honor.
Delaware County, Case No. 21CAA090044 21CAA090045 6
THE COURT: All right. Are you satisfied with your attorney's advice
and confidence?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And are you under -currently under the influence of
any alcohol or drugs?
THE DEFENDANT: No, Your Honor.
THE COURT: Okay. Then I will accept the -- the pleas and find Mr.
Fenstermaker guilty of pandering sexually oriented material involving a
minor, second degree felonies as alleged in Counts 1, 2, 3, and 4. I'll enter
nolle prosequi as to Counts 5, 6, and 7. And I will find the defendant guilty
of Counts 8 and 9, gross sexual imposition.
Plea T. June 30, 2021 at 8-9. After accepting Fenstermaker’s pleas in case number 20
CRI 12 0772, the following exchange took place,
MR. WALKER: Your Honor, I don't know if you still intend to do this
later - - I don't mean to rush you - - but we still need to do the plea in the
second of the two cases, in 0176.
THE COURT: I'm sorry. I couldn’t hear you very well. Would
you- -
MR. WALKER: Your Honor, we still need to complete the plea in
21CR 03 0176. I'm sorry if you had already planned to do that. I just wanted
to remind the Court.
MR. KOFFEL: There's a weapons under disability, a second
indictment, Your Honor. Probation did a home visit, found some firearms.
Delaware County, Case No. 21CAA090044 21CAA090045 7
THE COURT: Okay.
MR. HARRIS: Do you have that one?
THE COURT: I probably have it here.
T. June 30, 2021 at 9. The trial court advised Fenstermaker of the maximum penalties
and fines. Further, pursuant to the plea agreement the state agreed to dismiss Count 2
and Count 3 of the Indictment. The following exchange the took place,
THE COURT: Do you - - do you admit that you committed the crime
of having weapons under disability as charged in - -
THE DEFENDANT: Yes, Your Honor.
T. June 30, 2021 at 11. The trial court advised Fenstermaker of the potential for post-
release control and the consequences for violating this supervision. The trial court also
inquired if any promises or threats were made to obtain Fenstermaker’s plea.
Fenstermaker responded in the negative. After a rendition of the facts pertaining to Case
Number 21 CRI 03 0176, the trial court accepted Fenstermaker’s plea and found him
guilty. T. June 30, 2021 at 13.
{ ¶ 8 } The sentencing hearing took place o n A u g u s t 9 , 2 0 2 1 and the court
imposed an aggregate 8 year prison term. The sentencing entry was filed August 10,
2021.
{¶9} On October 6, 2021, Fenstermaker filed motions to Stay Execution of
Sentence and Bond Pending Appeal in the trial court in both case numbers. Both motions
were summarily denied on October 11, 2021. Fenstermaker filed similar motions in the
appellate cases on October 18, 2021. This Court denied the motions on October 27,
2021.
Delaware County, Case No. 21CAA090044 21CAA090045 8
Assignments of Error
{¶10} Fenstermaker raises two Assignments of Error,
“I. APPELLANT’S PLEA COLLOQUY IS INVALID AND VIOLATES DUE
PROCESS OF LAW BECAUSE THE TRIAL COURT FAILED TO STRICTLY COMPLY
WITH CRIM. R. 11.
“II. THE TRIAL COURT'S FINDINGS OF GUILT AND THE SENTENCES ARE
VOID BECAUSE MR. FENSTERMAKER NEVER ENTERED A PLEA OF GUILTY OR
NOLO CONTENDERE.”
I. & II.
{¶11} In his First Assignment of Error, Fenstermaker argues that the trial court did
not strictly comply with the constitutional requirements of Crim.R. 11(C)(2)(b) during the
plea colloquy.
{¶12} In his Second Assignment of Error Fenstermaker argues that he never
formally entered a plea of “guilty” on the record.
Standard of Review
{¶13} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d
115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977).
{¶14} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses
against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the
state must prove the defendant’s guilt beyond a reasonable doubt at trial; and (5) that the
Delaware County, Case No. 21CAA090044 21CAA090045 9
defendant cannot be compelled to testify against himself. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with
these requirements, the defendant’s plea is invalid. Id. at ¶ 31.
{¶15} The non-constitutional rights that the defendant must be informed of are:
(1) the nature of the charges; (2) the maximum penalty involved, which includes, if
applicable, an advisement on post-release control; (3) if applicable, that the defendant is
not eligible for probation or the imposition of community control sanctions; and (4) that
after entering a guilty plea or a no contest plea, the court may proceed directly to judgment
and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26, (postrelease control is a non-
constitutional advisement).
{¶16} For the non-constitutional rights, the trial court must substantially comply
with Crim.R. 11’s mandates. 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.” Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the
basis that the advisement for the non-constitutional rights did not substantially comply
with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would
not have been otherwise entered. Veney at ¶ 15; State v. Stewart, 51 Ohio St.2d 86, 93,
364 N.E.2d 1163(1977).
{¶17} When reviewing a plea’s compliance with Crim.R. 11(C), we apply a de
novo standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d
Delaware County, Case No. 21CAA090044 21CAA090045 10
474(1990); State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶9; State
v. Groves, 5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025,¶7.
Issues for Appellate Review: 1). Whether the record reflects that, the trial court
strictly complied with Crim.R.11(C)(2)(c) when advising Fenstermaker of all five
constitutional rights listed. 2). Whether the record reflects that Fenstermaker entered
guilty pleas in each case.
Case Number 20 CRI 12 0772 / 5th Dist. No. 21CAA 09 0044
{¶18} In State v. Veney, 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.
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, paragraph one of the syllabus.
{¶19} With respect to Case Number 20 CRI 0772, the trial court advised
Fenstermaker of each one of the five enumerated constitutional rights. T. June 29, 2021
at 6-7. Notably, a plea is not invalid merely because the court does not stop and inquire
after the explanation of each right. State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d
115 (1981).While the best method of informing a defendant of his constitutional rights is
to use the language contained in Crim.R. 11(C), stopping after each right and asking the
defendant whether he understands the right and knows that he is waiving it by pleading
Delaware County, Case No. 21CAA090044 21CAA090045 11
guilty, the failure to so proceed will not necessarily invalidate a plea. Ballard at 479. The
court can look to the totality of the record to determine whether that defendant was
meaningfully informed of the specific rights. Ballard at 480-482.
{¶20} Fenstermaker was represented by counsel and further indicated he
understood that he was entering guilty pleas in Case Number 20 CRI 0772 in writing.
{¶21} While it may be a better practice to give all advisements on the same day,
Fenstermaker cites no authority holding that a continuance requires the court to revisit
what a defendant has acknowledged before. See, United State v. Smith, 743 Fed.Appx.
606, 610 (6th Cir. 2018). It is also important to note that in the case at bar, the trial court
advised Fenstermaker of his constitutional rights with respect to Case Number 20 CRI
0772 on June 29, 2021. Fenstermaker waived his constitutional rights with respect to
Case Number 20 CRI 0772 on that same day, during that same hearing on June 29, 2021.
{¶22} Fenstermaker’s reliance upon State v. Brinkman, 165 Ohio St.3d 523, 2021-
Ohio-2473, 180 N.E.3d 1074 is misplaced. The Ohio Supreme Court found error in that
case because Brinkman entered his guilty plea and the trial court accepted Brinkman’s
guilty before the trial court advised Brinkman of his constitutional rights to confront the
witnesses against him and to have the state prove his guilt beyond a reasonable doubt.
Brinkman at ¶1; ¶9; ¶14; ¶17; and ¶19. In the case at bar, Fenstermaker did not enter
his guilty pleas and the trial court did not accept his guilty pleas until after the trial court
advised Fenstermaker of all of his constitutional rights as required by Crim. R. 11. T. June
29, 2021 at 6-7; T. June 30, 2021 at 8. The advisement and Fenstermaker’s waiver
occurred during the June 29, 2021 hearing with respect to Case Number 20 CRI 0772.
Delaware County, Case No. 21CAA090044 21CAA090045 12
{¶23} With respect to the non-constitutional Crim.R.11(C)(2)(a)(b) rights,
Fenstermaker does not challenges his guilty pleas on the basis that the advisement for
the non-constitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) and
further, he did not argue a prejudicial effect, meaning his pleas would not have been
otherwise entered.
{¶24} Fenstermaker next contends that he never entered a plea of “guilty” on the
record.
{¶25} A plea of guilty constitutes a complete admission of guilt. Crim. R. 11 (B)
(1). “By entering a plea of guilty, the accused is not simply stating that he did the discreet
acts described in the indictment; he is admitting guilt of a substantive crime.” United v.
Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927(1989).
{¶26} During the June 30, 2021 hearing,
THE COURT: Okay. Thank you. Do you admit that you committed
the crimes of sexual of pandering sexually oriented material involving a
minor as alleged in Counts 1, 2, 3, and 4?
Do you admit that you committed those crimes?
THE DEFENDANT: Yes. Yes, Your Honor.
THE COURT: And do you admit that you committed the crime of
gross sexual imposition as alleged in Counts 8 and 9?
THE DEFENDANT: Yes, Your Honor.
T. June 30, 2021 at 8 (emphasis added).
{¶27} In Case Number 20 CRI 12 0772 / 5th Dist. No. 21 CAA 09 0044, we find
that the trial court did meaningfully inform Fenstermaker of the five constitutional rights
Delaware County, Case No. 21CAA090044 21CAA090045 13
enumerated in Crim R. 11(C)(2)(c). Based on this record, we hold that the trial court
strictly complied with Crim.R. 11(C)(2)(c) before accepting Fenstermaker’s guilty pleas
and therefore his pleas are valid. We further find that Fenstermaker’s admission that he
committed the crimes is an admission of his guilt, which is the functional equivalent to
entering a plea of “guilty.”
Case Number 20 CRI 03 0176 / 5th Dist. No. 21 CAA 09 0045
{¶28} During the June 29, 2021 change of plea hearing, the trial court only advised
Fenstermaker of his constitutional rights concerning Case Number 20 CRI 12 0772. The
trial court made no mention during the Crim.R. 11 colloquy of Case Number 20 CRI 03
0176, or Having Weapons While Under a Disability. In fact after advising Fenstermaker
of his constitutional rights, the court only inquired,
Are you voluntarily giving up those rights with regard to these four
second degree felonies of pandering and these two fourth degree felonies
of gross sexual imposition?
T. June 29, 2021 at 7 (emphasis added). It was only after the trial court accepted
Fenstermaker’s plea in Case No. 20 CRI 12 0772 that the court was reminded that
Fenstermaker had not yet plead in Case Number 21 CRI 03 0175, the Having Weapons
While Under a Disability case.
{¶29} Because the trial court specifically referenced only the charges in Case No.
20 CRI 12 0772, we cannot find that the advisement of constitutional rights was sufficient
to cover the plea in Case Number 21 CRI 03 0175, the Having Weapons While Under a
Disability case.
Delaware County, Case No. 21CAA090044 21CAA090045 14
{¶30} A thorough review of the record reveals that the trial court never advised
Fenstermaker of (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 during either the June 29, 2021 hearing or the June 30, 2021 hearing with
respect to Case Number 21 CRI 03 0175, the Having Weapons While Under a Disability
case.
{¶31} Based on this record, we hold that the trial court’s failure to strictly comply
with Crim.R. 11(C)(2)(c) before accepting Fenstermaker’s guilty plea in Case Number 21
CRI 03 0175 renders his plea invalid.
Conclusion
{¶32} In Case Number 20 CRI 12 0772/5th Dist. No. 21 CAA 09 0044
Fenstermaker’s First and Second Assignments of Error are overruled.
{¶33} In Case Number 20 CRI 03 0176/5th Dist. No. 21 CAA 09 0045,
Fenstermaker’s First Assignment of Error is sustained. Fenstermaker’s Second
Assignment of Error is moot.
Delaware County, Case No. 21CAA090044 21CAA090045 15
In Case Number 20 CRI 12 0772/5th Dist. No. 21 CAA 09 0044 the judgment of
the Delaware County Court of Common Pleas is affirmed.
In Case Number 20 CRI 03 0176/5th Dist. No. 21 CAA 09 0045, the judgment of
the Delaware County Court of Common Pleas is reversed, and this matter is remanded
to the trial court for further proceedings consistent with this Opinion and the law.
By: Gwin, J.,
Wise, Earle E., P.J., and
Hoffman, J., concur