State v. Chessman

[Cite as State v. Chessman, 2015-Ohio-5294.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case Nos. 26613
Plaintiff-Appellee : Appellate Case Nos 26614
:
v. : Trial Court Case Nos. 14-CR-4424
: Trial Court Case Nos. 15-CR-8
MICHAEL CHESSMAN :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 18th day of December, 2015.
...........
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, Durden Law, LPA, LLC, 10 West Monument
Avenue, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Michael Chessman appeals from his convictions and
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sentences for Forgery (without authority), a felony of the fifth degree; Theft, a felony of
the fifth degree; and Forgery (uttering), a felony of the fifth degree, in Case No. 2014-CR-
4224. Chessman was also convicted of Failure to Notify, a felony of the third degree, in
Case No. 2015-CR-008. The two cases were consolidated for this appeal.
{¶ 2} Chessman contends that his plea of guilty was not knowingly, intelligently
and voluntarily given because Chessman did not verbally acknowledge that he
understood his right to confrontation. The State argues that the record does reflect that
Chessman verbally agreed that he understood his rights and agreed to waive them. We
conclude that the record, as modified under App.R. 9, demonstrates that Chessman
knowingly, intelligently and voluntarily waived his constitutional rights, including his right
to confront the witnesses against him, before entering his guilty plea. Accordingly, the
judgment of the trial court is affirmed.
I. The Course of Proceedings
{¶ 3} Chessman waived his right to an indictment and was charged by a Bill of
Information. Chessman was charged with one count of Forgery (without authority), a
felony of the fifth degree, in violation of R.C. 2913.31(A)(1); one count of Theft, a felony
of the fifth degree, in violation of R.C. 2913.71; and Forgery (uttering), a felony of the fifth
degree, in violation of R.C. 2913.31(A)(3), in Case No. 2014-CR-4224. Chessman was
also charged with one count of Failure to Notify, a felony of the third degree, in violation
of R.C. 2950.05(A) and (F)(1). Chessman waived his right to possess the charging
document for more than 24 hours prior to a plea hearing. Chessman entered a plea of
guilty to all four counts, and was sentenced to serve a 12-month term of incarceration for
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each count, with all terms to be served concurrently.
{¶ 4} The original transcript of the plea hearing submitted with the appellate
record contained the following colloquy between the trial court and Chessman:
THE COURT: Do you understand you have the right to confront here
in open court the witnesses who are against you and have them cross
examined by your attorney while they are under oath?
THE DEFENDANT: (No audible response).
Plea and Sentencing Transcript, pgs. 10-11.
{¶ 5} The State moved the trial court, under App.R. 9, to review the recording of
the plea hearing and to correct the record with Chessman’s actual response. The State
sought and received our permission to supplement the appellate record with that motion
and the trial court’s ruling correcting the record. By decision and entry, the trial court
ordered that upon its review of the video and audio recording of the plea hearing, the
transcript should be amended to reflect that the defendant did verbally respond to the
above-quoted question by answering, “Yes”. Dkt. #8. Based on the trial court’s order,
the record was supplemented to reflect that Chessman did waive his right to confrontation
at the plea hearing.
II. Standard of Review
{¶ 6} “An appellate court must determine whether the record affirmatively
demonstrates that a defendant's plea was made knowingly, intelligently, and voluntarily.”
State v. Carter, 2d Dist. Clark No. 2013-CA-115, 2014-Ohio-4856, ¶ 4. Our review of an
alleged error in the trial court's acceptance of a guilty plea is focused on whether, before
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accepting the plea, the trial court substantially complied with the procedure set forth in
Crim.R. 11(C)(2)(a) and (b). State v. Nawman, 2d Dist. Clark No. 2014-CA-6, 2015-Ohio-
447, ¶ 29, citing, 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.Additionally, the record must demonstrate that the trial court strictly complied with the
requirements of Crim.R. 11(C)(2)(c), as they pertain to the waiver of federal constitutional
rights. State v. Arnold, 2d Dist. Clark Nos. 2014-CA-23, 2014-CA-24, 2014-CA-25, 2014-
CA-26, 2015-Ohio-1580, ¶ 11, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 31.
III. Chessman’s Plea Was Made Knowingly, Intelligently, and Voluntarily
{¶ 7} For his sole assignment of error, Chessman alleges as follows:
THE TRIAL COURT ERRED BY FAILING TO DETERMINE
APPELLANT UNDERSTOOD HIS RIGHT TO CONFRONTATION
{¶ 8} Chessman argues that his plea was not knowingly, intelligently and
voluntarily given, because he did not respond when asked by the trial court if he
understood his right to confrontation. The State relies on the supplemental record, which
reflects that Chessman verbally agreed that he understood his right to confront and cross-
examine witnesses and that he agreed to waive that right.
{¶ 9} The supplemental record affirmatively demonstrates that Chessman was
properly advised of his constitutional confrontation rights. Our review of the entire hearing
confirms that Chessman responded verbally that he understood his rights and agreed to
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waive his rights. The trial court strictly complied with the mandates of Crim. R. 11(C)(2)(c),
and therefore did not err in accepting Chessman’s plea. We conclude that Chessman’s
plea was made knowingly, intelligently, and voluntarily. Chessman’s sole assignment of
error is overruled.
IV. Conclusion
{¶ 10} Chessman’s sole assignment of error having been overruled, the judgment
of the trial court is Affirmed.
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DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Michele D. Phipps
Sean Brinkman
Hon. Timothy N. O’Connell