State v. Davis

[Cite as State v. Davis, 2019-Ohio-1904.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-49
:
v. : Trial Court Case No. 2017-CR-542A
:
BRANDON DAVIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 17th day of May, 2019.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, and JOHN LINTZ, Atty. Reg. No.
0097715, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street,
Suite 449, Springfield, Ohio 45502
Attorneys for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springfield, Ohio 45506
Attorney for Defendant-Appellant
.............
FROELICH, J.
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{¶ 1} After pleading guilty to burglary and receiving stolen property, Brandon Davis
was sentenced to a prison term of eight years for the burglary offense, one year for the
receiving stolen property offense, and one year in a 2014 case for which he was on post-
release control at the time of the 2017 offenses. The trial court ordered the sentences to
run consecutively, for an aggregate term of 10 years. Davis appeals from the judgment
entry of conviction. The judgment of the trial court will be affirmed as to the receiving
stolen property offense, reversed as to the burglary offense, and the matter remanded for
further proceedings.
Factual and Procedural Background
{¶ 2} On the evening of September 4, 2017, a Clark County resident called 911 to
report that she and her husband had arrived home to find an unknown man and woman
exiting the caller’s house while “carrying bags” that the intruders dropped before fleeing
in a passing car. The bags were found to contain rifles and jewelry taken from the caller’s
home.
{¶ 3} Based on the caller’s description of the vehicle in which the intruders fled,
sheriff’s deputies stopped a car driven by Stephen Mitchem, Jr., in which Davis was a
front seat passenger and Winter Ann Eggers was a rear seat passenger. Upon searching
Eggers’s purse and her person, deputies found “a couple items * * * taken from another
burglary.” Those items included a checkbook and a debit card reported stolen on August
29, 2017 from a different Clark County home.
{¶ 4} Earlier on September 4, 2017, a local check-cashing business had called the
victims of the August 29 burglary to tell them that “Brandon Davis was trying to cash a
$600.00 check” from their stolen checkbook. Although the man who attempted to cash
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that check left before a deputy responded to the check-cashing location, the deputy
collected the stolen check and a picture of the man (Davis) who had tried to cash it.
{¶ 5} Davis, Eggers and Mitchem were transported to the Clark County jail, where
Mitchem voluntarily submitted to questioning and “stated he had nothing to do with the
burglary.” All three were charged with varying offenses.
{¶ 6} On September 11, 2017, Davis and Eggers, Davis’s girlfriend, were each
indicted by a Clark County grand jury on one count of aggravated burglary in violation of
R.C. 2911.11(A)(2), a first-degree felony, and one count of burglary in violation of R.C.
2911.12(A)(2), a second-degree felony. Those counts related to the September 4 burglary
and carried firearm specifications. In addition, the indictment charged each co-defendant
with a separate count of receiving stolen property in violation of R.C. 2913.51(A), a fifth-
degree felony. The receiving stolen property count related to items taken during the
August 29 burglary.
{¶ 7} As to the Count Two burglary offense, Davis’s indictment stated as follows:
That on or about September 4, 2017, in Clark County, Ohio, BRANDON
CHASE DAVIS * * * did by force, stealth, or deception, trespass in an
occupied structure, or in a separately secured or separately occupied
portion of an occupied structure that is a permanent or temporary habitation
of another, when a person other than an accomplice of the offender, is
present, or likely to be present, with purpose to commit in the habitation a
criminal offense, in violation of Section 2911.12(A)(2) of the Ohio Revised
Code, and against the peace and dignity of the State of Ohio.
(Emphasis added.) (Doc. #10). That portion of the indictment tracks almost verbatim the
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language of the burglary statute, R.C. 2911.12(A)(2).
{¶ 8} Pursuant to a written plea agreement,1 Davis pled guilty to the Count Two
charge of burglary and the Count Three charge of receiving stolen property, with the
Count One aggravated burglary charge and both firearm specifications to be dismissed.
(11/13/17 Plea Transcript (“Tr.”)). Asked by the trial court “to put the terms” of the plea
agreement “on the record” (id., p. 3), the State offered the following version of Davis’s
burglary offense, which differs from the language of the indictment and the burglary
statute:
[Prosecutor]: The facts Mr. Davis will be pleading guilty to are on or
about September 4, 2017[,] here in Clark County, Ohio, he did trespass into
an occupied structure with the purpose inside of that occupied structure to
commit a criminal offense, that being a theft offense, Your Honor * * *.
As alleged in count three, [at] the same time, September 4, 2017, Mr.
Davis was found to be or have possession of a check belonging to another
individual. That check was also reported stolen, Your Honor.
[Trial Court]: Is that a full statement of the plea agreement?
[Defense counsel]: Yes, Your Honor. * * *
(Plea Tr., p. 4).
{¶ 9} Subsequently, as part of its colloquy advising Davis of the consequences of
his plea as well as the rights he would be waiving, the trial court set forth a third version
of the offenses to which Davis was pleading guilty, as follows:
1
The written plea form stated the name of the charges Davis was pleading to – i.e.,
burglary and receiving stolen property – and the maximum penalty for each, but did not
state the elements or facts of the offenses. (See Doc. #9).
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[Trial Court]: If you chose to exercise that right [to a jury trial], you
would have the right to require the State to prove beyond a reasonable
doubt every element of these two offenses.
The elements of the burglary offenses [sic] are that on or about
September 4, 2017 at Clark County, Ohio, you did by force, stealth or
deception trespass in an occupied structure when a person other than an
accomplice of the offender was present or likely to be present with purpose
to commit therein a criminal offense.
The receiving stolen property elements are that on or about
September 4, 2107 at Clark County, Ohio, you did receive, retain, or
dispose of property of another knowing or having reasonable cause to
believe that the property had been obtained through the commission of a
theft offense, and the property involved was a check.
Do you understand these are the elements the State would have to
prove?
[Davis]: Yes, sir.
***
[Trial Court]: Do you understand all of these rights?
[Davis]: Yes, sir.
[Trial Court]: Do you understand that by entering this guilty plea you
would be waiving all of these rights?
[Davis]: Yes, sir.
[Trial Court]: With that understanding[,] how then did you want to
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plead to the offense of burglary and receiving stolen property?
[Davis]: Guilty.
(Plea Tr., pp. 8-10).
{¶ 10} A presentence investigation (“PSI”) report prepared for purposes of
sentencing revealed that Davis was 31 years old, unemployed, and homeless. Davis said
that prior to his incarceration for these offenses, he had been “stealing to make money
for drugs.” He reported first using alcohol and marijuana at the age of eight and gradually
progressing to “heavy drugs,” eventually injecting heroin “on a daily basis” before being
incarcerated in September 2017.
{¶ 11} Davis had an extensive criminal record as an adult,2 including two prior
felony theft offenses in 2005, for which he received an 11-month prison sentence; two
additional theft offenses in 2014; and a felony burglary offense in 2014, for which he was
sentenced to 12 months in prison. Davis was on post-release control for the 2014 burglary
when he committed the offenses in this case. Davis attributed his and Eggers’s joint
crimes to their heroin addiction, claiming that in exchange for drugs, they had targeted
random homes at the direction of their drug dealer.3 The report stated, however, that
Davis and Eggers “had very different recollections of the offenses.”
{¶ 12} Davis recounted previous drug treatment efforts that had been
unsuccessful. He was “kicked out of residential treatment,” after which he “tried to
continue outpatient services but then * * * relapsed.” He also failed to complete another
2
The PSI indicated that Davis also had a prior felony charge as a juvenile, but the juvenile
court did not respond to a request for Davis’s juvenile records.
3 Davis identified Mitchem as the alleged dealer.
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outpatient treatment program “due to going to prison.” Although he was not on any
prescribed medications at the time of the PSI, Davis said that he had been diagnosed
with some mental health issues. The PSI report assessed Davis as posing a “high” risk
of recidivism.
{¶ 13} At Davis’s sentencing hearing, the trial court stated that it had reviewed the
PSI and victim impact statements “from each set of victims.” (12/4/17 Disposition Tr., p.
3). After hearing from defense counsel, Davis, and the prosecutor, the trial court stated in
part:
In reviewing your prior record[,] you have served three prior prison
terms. You also have nine prior theft-related convictions. One of your prior
convictions is for burglary.
You were on post-release control on that case at the time you
committed the burglary and the receiving stolen property in this case.
I do find that consecutive sentences are necessary to protect the
public from future crime and to * * * punish the defendant. That they are not
disproportionate to the seriousness of his conduct and to the danger he
poses to the public.
And that his history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the defendant.
And again, the offenses in this case were committed while the
defendant was on post-release control for a prior burglary offense, and that
he has less than one year remaining on post-release control.
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For the receiving stolen property offense, felony of the fifth degree,
the Court is going to order that the defendant be sentenced to the maximum
sentence of one (1) year in the Ohio State Penitentiary.
For the burglary offense, felony of the second degree, the Court is
going to order that the defendant be sentenced to the maximum penalty of
eight (8) years in the Ohio State Penitentiary.
And the Court does find that the defendant violated his post-release
control and based upon that violation the Court is going to order that the
defendant be sentenced to one (1) year in the Ohio State Penitentiary.
These sentences will all be consecutive for a total sentence of ten
(10) years in the Ohio State Penitentiary.
(Id., pp. 8 -10). A written judgment entry memorializing Davis’s conviction and sentence,
including the trial court’s findings supporting consecutive sentences, followed.
{¶ 14} We granted Davis’s motion for leave to pursue a delayed appeal from that
judgment. He asserts two assignments of error:
1) The Trial Court erred in accepting Davis’[s] guilty plea because it was not
knowingly nor voluntarily entered.
2) Davis’[s] sentence was contrary to law because it was disproportionate
to the crime committed and inconsistent with that of his co-defendant and
similar offenders.
Assignment of Error #1 – Guilty Plea Not Knowing and Voluntary
a. Standard of Review/Applicable Law
{¶ 15} In order to comport with due process and be constitutionally valid, a guilty
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plea must be entered knowingly, intelligently, and voluntarily. State v. Miller, 2017-Ohio-
478, 84 N.E.3d 150, ¶ 9 (2d Dist.), citing State v. Bateman, 2d Dist. Champaign No.
2010CA15, 2011-Ohio-5808, ¶ 5, and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709,
23 L. Ed. 2d 274 (1969). To determine whether a particular plea met those criteria, “ ‘an
appellate court examines the totality of the circumstances through a de novo review of
the record to ensure that the trial court complied with constitutional and procedural
safeguards.’ ” (Italics sic.) State v. Redavide, 2d Dist. Montgomery No. 26070, 2015-Ohio-
3056, ¶ 10, quoting State v. Barner, 4th Dist. Meigs No. 10CA9, 2012-Ohio-4584, ¶ 7.
{¶ 16} “In order for a plea to be knowing, intelligent, and voluntary, the trial court
must comply with Crim.R. 11(C).” (Citation omitted.) State v. Russell, 2d Dist. Clark No.
10-CA-54, 2011-Ohio-1738, ¶ 6. “Crim.R. 11(C) governs the process that a trial court
must use before accepting a felony plea of guilty or no contest.” State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. “By following this rule, a court ensures
that the plea is knowing, intelligent, and voluntary.” State v. Cole, 2d Dist. Montgomery
No. 26122, 2015-Ohio-3793, ¶ 12, citing Redavide at ¶ 12.
{¶ 17} Crim.R. 11(C)(2) requires the court to address the defendant personally and
(a) determine that the defendant is making the plea voluntarily, with an understanding of
the nature of the charges and the maximum penalty, and, if applicable, that the defendant
is not eligible for probation or for the imposition of community control sanctions; (b) inform
the defendant of and determine that the defendant understands the effect of the plea and
that the court, upon acceptance of the plea, may proceed with judgment and sentencing;
and (c) inform the defendant and determine that he or she understands that, by entering
the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against
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him or her, to have compulsory process for obtaining witnesses, and to require the State
to prove guilt beyond a reasonable doubt at a trial at which he or she cannot be compelled
to testify against himself or herself. State v. Brown, 2d Dist. Montgomery No. 21896, 2007-
Ohio-6675, ¶ 3.
{¶ 18} The Supreme Court of Ohio has urged literal compliance with Crim.R. 11.
See State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. However,
because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need
comply only substantially with those requirements. See, e.g., 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. In contrast, the trial court must comply strictly with Crim.R.
11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at ¶ 31.
{¶ 19} If there is a lack of substantial compliance regarding a certain non-
constitutional right, then the reviewing court is to determine whether there was a partial
or a total failure to comply with the rule. State v. Cruz-Ramos, 7th Dist. Mahoning No. 17
MA 0077, 2019-Ohio-779, ¶ 11, citing Clark at ¶ 32. A complete failure to advise of a non-
constitutional right requires that the plea be vacated without an analysis of prejudice. Id.,
citing State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22, 25.
“However, if the court’s advisement on a non-constitutional right is considered partial
compliance with the rule, then the plea cannot be vacated unless the defendant
demonstrates prejudice.” Id., citing Clark at ¶ 32, 40.
b. Davis’s Guilty Plea
{¶ 20} Davis contends that his guilty pleas were not knowing, intelligent, and
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voluntary for three reasons: (1) his plea agreement with the State was “illusory and
unconscionable,” (2) the trial court failed to advise Davis of the effect of his guilty plea,
and (3) the facts on which the State relied did not constitute the offense of burglary,
meaning Davis’s plea to that offense was invalid. 4 We will address those arguments
separately and in the order most conducive to our analysis.
(i) Alleged “illusory and unconscionable” nature of the plea agreement
{¶ 21} Davis argues that the State “overcharged” him with aggravated burglary and
two firearm specifications despite knowing that it could not prove beyond a reasonable
doubt that Davis used a firearm to facilitate his crimes. According to Davis, the only
weapons involved in these offenses were the guns taken from one house on September
4, 2017 and later found inside a bag Davis and Eggers dropped when they fled. He
contends that the State could not obtain a conviction for aggravated burglary and the
firearm specifications based on guns that Davis did not actually use in committing the
offenses. In essence, Davis maintains that the plea agreement was “illusory and
unconscionable” because he received no benefit from pleading guilty to burglary and
receiving stolen property in exchange for the dismissal of charges on which he contends
the State could not have prevailed.
{¶ 22} We previously have characterized such an argument as contending “that
the plea bargain lacked consideration.” See State v. McMahon, 2d Dist. Clark No. 2014-
CA-98, 2015-Ohio-2878, ¶ 20. A plea agreement is a contract subject to the principles of
contract law. Id. at ¶ 18. Although courts generally “may not inquire into the adequacy of
4
Although Davis’s final argument in support of this assignment of error is directed toward
only his guilty plea to burglary, the other two arguments appear to challenge both guilty
pleas.
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consideration, * * * whether there is consideration at all is a proper question for a court.”
(Emphasis added.) Id., quoting Williams v. Ormsby, 131 Ohio St. 3d 427, 2012-Ohio-690,
966 N.E.2d 255, ¶ 43.
{¶ 23} “Normally, the dismissal of another criminal charge constitutes sufficient
consideration for a plea agreement.” Id., quoting State v. Moore, 4th Dist. Adams No.
13CA965, 2014-Ohio-3024, ¶ 19, citing State v. Smith, 2d Dist. Greene No. 90 CA 87,
1992 WL 206739, *7 (Aug. 26, 1992). In Moore, the appellate court noted that “any
discussion of what evidence the state would have relied on to support each conviction at
trial requires some speculation because of the plea agreement.” Moore at ¶ 21. The same
is true here. Nevertheless, the court in Moore noted that “a lesser sentence is not the only
benefit to be received by a defendant deciding to plead guilty to a charged offense” – for
instance, the defendant also receives the benefit of “avoid[ing] the additional publicity that
a trial might generate.”5 Id. at ¶ 22. “Because some consideration exist[ed] for the plea
agreement” in Moore, the court there concluded that it “c[ould not] inquire into the
adequacy of the consideration.” Id., citing Williams at ¶ 17.
{¶ 24} In McMahon, we adopted the Fourth District’s reasoning from Moore,
concluding that “no reasonable argument can be made that the plea was not intelligent,
voluntary, or knowing, due to a lack of consideration.” McMahon at ¶ 15. The same result
is warranted as to Davis’s pleas. We cannot conclude how a trial on the original charges
and specifications would have concluded. That was a decision that Davis had to make in
considering the plea negotiations. Because dismissal of the aggravated burglary count
and the firearm specifications constituted some consideration for the plea agreement
5
This conclusion does not appear to be relevant here.
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Davis accepted, Davis’s challenge to the adequacy of that consideration is not well taken.
(ii) Plea to burglary as voidable6
{¶ 25} Davis urges that the State’s plea-hearing description of “[t]he facts [to which]
Mr. Davis will be pleading guilty” (Plea Tr., p. 4) “do[es] not constitute the offense of
Burglary,” and that his guilty plea to that offense therefore was uninformed and should be
set aside. Davis’s argument relies on the “facts” as “placed on the record at the plea
hearing” by the prosecutor (emphasis added.) (see Appellant’s Brief, p. 10), which differ
from the description of the burglary offense set forth in the indictment or that read by the
trial court during the plea hearing.
{¶ 26} As we recognized above, the indictment’s description of the Count Two
burglary charge against Davis is nearly identical to the language of R.C. 2911.12(A)(2),
which provides:
(A) No person, by force, stealth, or deception, shall do any of the following:
***
(2) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or
temporary habitation of any person when any person other than an
accomplice of the offender is present or likely to be present, with purpose
to commit in the habitation any criminal offense[.]
6
Although Davis suggests that his guilty plea to burglary is “void” (Appellant’s Brief, p. 9),
generally “a judgment is void ab initio only when a court acts without subject-matter
jurisdiction.” Dunbar v. State, 136 Ohio St. 3d 181, 2013-Ohio-2163, 992 N.E.2d 1111,
¶ 15. Where a trial court “erred in the exercise of its jurisdiction” but “did not act without
jurisdiction” in accepting a guilty plea, the resulting judgment “[i]s voidable rather than
void.” Id. “Voidable” judgments “can be set aside only if successfully challenged on direct
appeal.” State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 28.
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(Emphasis added.)
{¶ 27} The version of the charge offered by the State at the time of Davis’s guilty
plea varies from the language of the burglary statute and Davis’s indictment, however. At
the plea hearing, the State described the “facts [to which] Mr. Davis will be pleading guilty”
as follows:
[O]n or about September 4, 2017[,] here in Clark County, Ohio, [Davis] did
trespass into an occupied structure with the purpose inside of that occupied
structure to commit a criminal offense, that being a theft offense, Your
Honor * * *.
(Plea Tr., p. 4).
{¶ 28} Absent from “[t]he facts [to which] Mr. Davis will be pleading guilty” as read
into the hearing record by the prosecutor was any mention of Davis’s gaining entry “by
force, stealth, or deception,” or that the structure involved was “a permanent or temporary
habitation of any person.” See R.C. 2911.12(A)(2). Neither did the prosecutor state that
some person other than Davis or his accomplice was “present or likely to be present”
when Davis entered that structure. See id. Indeed, the police report from the September
4, 2017 incident (attached to the PSI) indicates that the residents at that address were
not at home when Davis and Eggers entered their house.
{¶ 29} As a general rule, “[a] guilty plea admits the facts set forth in the indictment,
not the [underlying] facts set forth at the plea hearing.” State v. Riddle, 2017-Ohio-1199,
88 N.E.3d 475, ¶ 34 (2d Dist.), quoting State v. Greathouse, 158 Ohio App. 3d 135, 2004-
Ohio-3402, 814 N.E.2d 502, ¶ 8 (2d Dist.). “Pleading guilty is ‘an admission of every
material fact well pleaded in the indictment, dispensing with the necessity of proving them,
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and authorizing the court to proceed to judgment.’ ” Id., quoting Greathouse at ¶ 7. When
a defendant “has been informed of the charge in the indictment and has had a full
opportunity to discuss that charge with his attorney,” we have held that “slight variations
in the description of the offense at the plea hearing” will not support a presumption that
the defendant did not understand the nature of the charges against him. (Emphasis
added.) Id., citing Greathouse at ¶ 8.
{¶ 30} Even though the State is not required to articulate the factual basis for a
felony guilty plea, we have found that a defendant’s guilty plea may be “rendered less
than knowing, intelligent, and voluntary” if the State voluntarily undertakes to provide a
statement of the underlying facts that is deficient as to some element of the offense, and
the defendant’s trial attorney advises the defendant to plead guilty despite that deficiency.
See Riddle at ¶ 39-40. The defendant in Riddle was charged with aggravated robbery,
but the State’s recitation of the underlying facts at the plea hearing “not only failed to
establish the ‘deadly weapon’ element of aggravated robbery, but affirmatively disproved
that element as a matter of law.” Id. at ¶ 39. There we concluded that “[t]he negation of
an element of the offense in the prosecutor’s statement of facts amounts to more than a
‘slight variation’ from the description of” the offense in the charging document. Id. at ¶ 39.
We noted that the charging document (in that case, a bill of information rather than an
indictment) “was not read on the record at the plea hearing,” and “[a]ll the required
elements of [the felony offense being pled to] were never actually established at the plea
hearing.” Id.
{¶ 31} The circumstances of Davis’s plea are sufficiently similar to those in Riddle
for us to conclude that Davis was not pleading guilty with “an understanding of the nature
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of the charge” (burglary), and that his guilty plea to that charge thus was not knowing,
intelligent, and voluntary. Although it could be argued that the State’s recitation of the
charge7 at Davis’s plea hearing did not affirmatively negate any element of the offense
of burglary, neither did that recitation encompass every element necessary to prove that
offense. The State’s reading of the indictment to set out the facts a defendant is admitting
through his guilty plea is sufficient “if [the indictment] alleges facts which would constitute
the crime charged.” (Emphasis added.) State v. Holloway, 2d Dist. Montgomery No.
14501, 1995 WL 9444, *1 (Jan. 11, 1995). In Davis’s case, the indictment does allege
facts sufficient to constitute the crime of burglary, but the State did not read the indictment
at the plea hearing. Instead, Davis admitted only to elements (“facts”) that were legally
insufficient to prove the crime to which he was pleading.
{¶ 32} Although the trial court, after the State’s recitation of “facts” but before the
court accepted Davis’s plea, also endeavored to advise Davis of “[t]he elements of the
burglary offense[ ]” to which he was about to plead guilty (Plea Tr., p. 8), the court’s
statement also omitted a critical statutory element of that offense – i.e., the court failed to
specify that burglary under R.C. 2911.12(A)(2) requires proof that the occupied structure
into which the defendant trespassed “is a permanent or temporary habitation of any
person.” Accordingly, while the trial court’s statement came closer to advising Davis of
and the elements the State would need to prove at trial in order to establish Davis’s guilt
of the burglary offense, the trial court’s admonition also fell short of identifying “every
element” the State would have “to prove beyond a reasonable doubt,” see ¶ 9, above, as
7
The prosecutor characterized his comments as stating “[t]he facts Mr. Davis will be
pleading guilty to;” however, it appears the prosecutor actually set forth only a portion of
the elements constituting a burglary offense, not the underlying “facts.”
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well as “every material fact” that Davis would be admitting, and thus did not fully correct
any false impression that may have been created by the prosecution’s recitation. See
Riddle at ¶ 34, and Greathouse, 158 Ohio App. 3d 135, 2004-Ohio-3402, 814 N.E.2d 502,
at ¶ 17.
{¶ 33} We conclude that the deficient statement of facts placed on the record by
the State during the plea proceeding rendered Davis’s guilty plea to burglary “less than
knowing, intelligent, and voluntary.” See Riddle at ¶ 39-40. Although the indictment
adequately set forth all required elements of the burglary offense, that indictment was not
read into the record during the plea hearing, the trial court’s recitation also omitted a
necessary element, and the facts read by the prosecutor did not constitute the offense of
burglary. Accordingly, “[a]ll the required elements of [the felony offense being pled to]
were never actually established at the plea hearing.” Id. at 39. The colloquy does not
reflect that Davis was pleading guilty with an “understanding of the nature of the charge.”
{¶ 34} As the trial court erred in accepting Davis’s guilty plea to the burglary
offense, Davis’s first assignment of error is sustained as to his burglary conviction.
(iii) Trial court’s alleged failure to inform Davis of the effect of his plea
{¶ 35} Under the heading “Effect of Guilty or No Contest Pleas,” Crim.R. 11(B)(1)
provides that “[a] plea of guilty is a complete admission of the defendant’s guilt.” In support
of his contention that the trial court erroneously failed to inform him of the effect of his
guilty plea in accordance with Crim.R. 11(C)(2)(b) because he was not advised that his
plea was a complete admission of guilt, Davis relies on State v. Griggs, 103 Ohio St. 3d
85, 2004-Ohio-4415, 814 N.E.2d 51.
{¶ 36} In Griggs, the Ohio Supreme Court was confronted with a defendant’s
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challenge to his guilty plea based on the trial court’s failure to inform him in accordance
with Crim.R. 11 that such plea was “a complete admission of the defendant’s guilt.” Id. at
¶ 5, 10. The Supreme Court found that “[t]he right to be informed that a guilty plea is a
complete admission of guilt is nonconstitutional and therefore is subject to review under
a standard of substantial compliance.” Id. at ¶ 12, citing Nero, 56 Ohio St. 3d at 107, 564
N.E.2d 474. “Under the substantial compliance standard, we review the totality of the
circumstances surrounding [the defendant’s] plea and determine whether he subjectively
understood that a guilty plea is a complete admission of guilt.” Id.
{¶ 37} In reliance on Griggs, we have rejected a defendant’s assignment of error
based on the trial court’s omission of a “complete admission of guilt” admonition, where
the defendant “made no assertion at the plea hearing that she was actually innocent of
the offense” and nothing in the record suggested that the defendant “was prejudiced by
the trial court’s failure to provide the notification required by Crim.R. 11(C)(2)(b).” See
State v. Lucero, 2d Dist. Clark No. 2018-CA-26, 2018-Ohio-4634, ¶ 17.
{¶ 38} Reviewing the totality of the circumstances surrounding Davis’s plea, we do
not find Lucero to control the outcome with regard to Davis’s burglary conviction. As noted
above, it is not apparent on this record what exactly Davis was admitting through his guilty
plea to burglary. We previously have opined that a plea may be “less than voluntary,
knowing, and intelligent” for purposes of Crim.R. 11(C)(2)(b) “if the trial court says
anything that could create confusion concerning the defendant’s appellate rights.” State
v. Jones, 2d Dist. Greene No. 2017-CA-27, 2018-Ohio-2219, ¶ 14. Specifically, Jones
argued that he was not told that he could not appeal certain pretrial rulings if he pled
guilty. Id. at ¶ 13. Jones had been informed “that a guilty plea acted as a complete
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admission of the conduct to which he was entering a plea,” and Jones indicated he
understood. Id. at ¶ 15.
{¶ 39} Although the omission in this case did not implicate Davis’s appellate rights,
the incomplete and conflicting information about the elements of the burglary offense
conveyed during the plea proceeding certainly created confusion about the evidence that
would be required to prove the burglary charge to which Davis was pleading guilty.
Further, he was not told, nor did he acknowledge, that the plea acted as a complete
admission of his conduct or his guilt. Under such circumstances, we are unable to
conclude that Davis “subjectively understood” that his guilty plea was a complete
admission of all of the elements constituting the indicted burglary offense, see Griggs at
¶ 12, or that Davis was not prejudiced by the trial court’s omission of the “complete
admission” admonition, especially given the incomplete and inconsistent descriptions of
the burglary charge. See Lucero at ¶ 17. Accordingly, Davis’s first assignment of error is
sustained for that additional reason as to his burglary conviction.
{¶ 40} We reach a different conclusion as to Davis’s receiving stolen property
conviction. Notably, Davis has identified no defect in the trial court’s recitation of the
elements of the receiving stolen property offense to which he was entering a guilty plea.
Absent any omission by the trial court in that regard, we cannot conclude that Davis was
prejudiced as to his receiving stolen property plea by the trial court’s failure to recite the
“complete admission” language. Davis’s argument therefore is not well taken as to that
offense.
{¶ 41} Because Davis’s guilty plea was not knowing, intelligent, and voluntary as
to the burglary offense, his conviction and sentence based upon his plea to that offense
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must be reversed, and this matter will be remanded to the trial court for further
proceedings. However, Davis’s receiving stolen property conviction is affirmed.
Assignment of Error #2 – Error in Imposing Maximum Consecutive Sentences
{¶ 42} Having determined that Davis’s burglary conviction and sentence based
upon his invalid guilty plea must be reversed, we need not address Davis’s challenge to
the consecutive nature of the sentences imposed. We therefore will limit our review of
Davis’s second assignment of error to his contention that the trial court erred by imposing
the maximum sentence for his receiving stolen property offense.
a. Standard of Review and Applicable Law
{¶ 43} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it “clearly and convincingly” finds that either (1) the record does not support certain
specified findings, or (2) the sentence imposed is contrary to law. State v. Mayberry, 2d
Dist. Montgomery No. 27530, 2018-Ohio-2220, ¶ 41, quoting R.C. 2953.08(G)(2).
{¶ 44} “ ‘Clear and convincing evidence is that measure or degree of proof which
is more than a mere “preponderance of the evidence,” but not to the extent of such
certainty as is required “beyond a reasonable doubt” in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.’ ” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
{¶ 45} Sentences are “contrary to law” when they do not fall within statutory ranges
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for offenses or when the trial court fails to consider “the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.”
State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.), citing State v. Pawlak,
8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. “The trial court has full discretion
to impose any sentence within the authorized statutory range, and the court is not required
to make any findings or give its reasons for imposing maximum or more than minimum
sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in
exercising its discretion, a trial court must consider the statutory criteria that apply to every
felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v.
Leopard, 194 Ohio App. 3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing
State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 46} Under R.C. 2929.11, trial courts are to be guided by the overriding purposes
of felony sentencing, which are to “to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). As to R.C. 2929.12, subsection (B) lists
nine factors indicating that an offender's conduct is more serious than conduct normally
constituting the offense, and R.C. 2929.12(C) outlines four factors indicating that an
offender’s conduct is less serious than conduct normally constituting the offense. R.C.
2929.12(D) and (E) each list five factors to consider in deciding if an offender is likely to
commit future crimes. Under R.C. 2929.12(F), an offender’s military service, if any, is
considered.
{¶ 47} For purposes of sentencing, a court “is not confined to [considering] the
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evidence that strictly relates to the conviction offense because the court is no longer
concerned * * * with the narrow issue of guilt.” State v. Bowser, 186 Ohio App. 3d 162,
2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.). Sentencing courts may consider
“hearsay evidence, facts related to charges that were dismissed pursuant to a plea
bargain, and allegations contained in a PSI report.” State v. Bautista, 2d Dist. Clark No.
2015-CA-74, 2016-Ohio-5436, ¶ 12, citing State v. Clemons, 2d Dist. Montgomery No.
26038, 2014-Ohio-4248, ¶ 8.
b. Davis’s Sentence for Receiving Stolen Property
{¶ 48} Here, the 12-month prison term the trial ordered for Davis’s receiving stolen
property offense was the maximum sentence permitted for a fifth-degree felony. See R.C.
2929.14(A)(5). In imposing that sentence, the court observed that Davis previously had
served three prison terms; had nine prior theft-related convictions, including a prior
burglary conviction; and was on post-release control at the time of the 2017 offense. The
record also reflects that Davis’s PSI showed that he “got kicked out of residential
treatment” for substance abuse and quickly began to re-offend each time he was released
from prison. Consistent with R.C. 2929.11(A), the court specifically mentioned the need
to punish Davis and to protect the public from future crime by him.
{¶ 49} Davis argues that his total sentence was disproportionate to his co-
defendant’s 30-month sentence, and that his (Davis’s) conduct in committing the two
offenses of which he was convicted was a “less serious form” of those crimes in
accordance with R.C. 2929.12(C). Our reversal of Davis’s burglary sentence leaves the
record devoid of any basis for his disproportionality argument. Further, Davis has
identified no particular facts on the record that would support an inference that his receipt
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of stolen property somehow amounted to a less serious form of that offense. Given that
the stolen check involved in Davis’s offense was taken during a burglary close in both
time and geographic proximity to the burglary for which Davis actually was charged, the
record arguably would support an inference that Davis’s receiving stolen property offense
involved a more serious form of conduct. See Bowser at ¶ 14; Bautista at ¶ 12.
{¶ 50} Our review of the record indicates that the trial court gave proper
consideration to the criteria set forth in R.C. 2929.11, 2929.12, and 2929.13. Davis's
sentence for receiving stolen property was within the statutory sentencing range, the
record does not clearly and convincingly fail to support the court's decision to impose the
maximum sentence, and the sentence was not contrary to law. Accordingly, Davis’s
challenge to the trial court's imposition of the maximum sentence for his receiving stolen
property conviction is not well taken, and his second assignment of error is overruled.
Conclusion
{¶ 51} The trial court’s judgment will be affirmed as to Davis’s conviction and
sentence for receiving stolen property and reversed as to Davis’s conviction and sentence
for burglary, and this matter will be remanded to the trial court for further proceedings.
.............
DONOVAN, J., concurs.
WELBAUM, P.J., concurs in part and dissents in part:
{¶ 52} I agree with the majority’s decision to affirm Davis’s conviction and sentence
for receiving stolen property, but I disagree with the majority’s decision to reverse Davis’s
conviction and sentence for burglary. Unlike the majority, I believe the trial court
substantially complied with Crim.R. 11 and did not abuse its discretion when it found that
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Davis understood the nature of the burglary charge to which he pled guilty. Therefore,
for the reasons outlined below, I would hold that Davis’s guilty plea to burglary was
knowingly, intelligently, and voluntarily entered.
{¶ 53} The majority relies on Riddle, 2017-Ohio-1199, 88 N.E.3d 475 in concluding
the record does not support a knowing, intelligent, and voluntary guilty plea. Riddle,
however, is distinguishable from the facts of this case. In Riddle, the prosecutor’s
recitation of the facts at the plea hearing absolutely negated an element of the indictment.
Id. at ¶ 39-42. Here, the recitation of facts concerning Davis’s burglary offense omitted
one or more elements, but did not contradict or negate any of the elements necessary to
support his conviction for that offense. Our decision in Riddle, therefore, is not
analogous to the case at bar.
{¶ 54} In State v. Cohen, 60 Ohio App. 2d 182, 396 N.E.2d 235 (1st Dist.1978), the
First District Court of Appeals highlighted the distinction between omitting and negating
an element of an offense. In that case, the defendant was charged with robbery under
R.C. 2911.02(A), which included the element of “us[ing] or threaten[ing] the immediate
use of force against another.” Id. at 182-183. However, when reciting the facts at the
plea hearing, the prosecutor stated that the victim was sleeping throughout the entire
offense. Id. at 183. The trial court found that “[t]he mere rearrangement of a sleeping
victim’s unresisting body to facilitate the commission of a theft offense does not, in our
opinion, constitute any ‘violence, compulsion or constraint * * * exerted * * * against a
person’ as those terms are used to define ‘force’ in R.C. 2901.01(A).” Id. Therefore,
the First District found that the prosecutor’s statement “negative[d] the existence of an
essential element of the offense of robbery.” Id.
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{¶ 55} The court in Cohen further stated that:
This court has held on several occasions, that as a consequence of
Crim.R. 11(B)(2), a defendant’s conviction of the offense charged in the
indictment is proper where the prosecutor, through inadvertence or
otherwise, [o]mits the factual fundament for an essential element of the
offense from his oral description of the events and circumstances
surrounding the charge, or where such recital is controverted by the
appellant’s own version of the facts.
Those cases, however, must be distinguished from the situation
presented to us in the instant case, wherein the uncontroverted statement
of facts recited to the court below not only failed to include, but [a]bsolutely
negatived the existence of, an essential element of the offense charged in
the indictment.
(Emphasis added and internal citations omitted.) Id. at 184.
{¶ 56} In Greathouse, 158 Ohio App. 3d 135, 814 N.E.2d 502, 2004-Ohio-3402,
this court rejected the suggestion that when “a defendant has been informed of the charge
in the indictment and has had a full opportunity to discuss that charge with his attorney,
slight variations in the description of the offense at the plea hearing will create a
presumption that the defendant did not understand the nature of the charges against him.”
Id. at ¶ 8. Therefore, although the prosecutor in Greathouse recited a factual narrative
at the plea hearing that did not expressly mention an element of the offense being pled
to, we nevertheless found the prosecutor’s narrative sufficient to embrace the essential
elements of the offense. Id. at ¶ 11, 26.
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{¶ 57} The problem in Greathouse, however, arose during the trial court’s plea
colloquy. During the plea colloquy, the trial court asked the defendant if he understood
“the facts that the prosecutor just read into the record” and if “those are the facts to which
you wish to enter a plea of guilty?” Id. at ¶ 14-17. The defendant answered “yes” to
both questions. The defendant then told the trial court that he was pleading guilty to
grand theft auto because “the car got stolen from [him]” and that he was “wrong for not
coming right back[.]” Id. at ¶ 18-21.
{¶ 58} In Greathouse, this court found that the defendant’s “responses were a red
flag to the trial court that further inquiry was necessary to ensure that [the defendant]
understood the purpose-to-deprive elements of the offense and that he was admitting
these elements of the offense.” Id. at ¶ 28. More specifically, we determined that the
record indicated there was as reasonable possibility that the defendant believed he was
guilty merely for failing to timely return the car, and thus did not understand the nature of
his offense. Id. at ¶ 26. Indeed, the defendant’s comment that the car was stolen from
him effectively negated the purpose-to-deprive element of grand theft auto. We
therefore reversed the judgment of the trial court. Id. at ¶ 29-31.
{¶ 59} The present case is similar to Greathouse in that the trial court asked the
defendant whether he was pleading guilty to the facts read by the prosecutor as opposed
to the facts in the indictment. It is well established that, “[a] guilty plea admits the facts
set forth in the indictment, not the facts set forth at the plea hearing.” (Citation omitted.)
Id. at ¶ 8. In my opinion, had the trial court simply asked Davis whether he was pleading
guilty to the facts as alleged in the indictment, there would be no issue with regard to
whether Davis understood the nature of the burglary offense. However, that is not what
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happened here.
{¶ 60} Nevertheless, the fact remains that, unlike the defendant in Greathouse,
Davis did not make a statement during the plea proceedings that indicated he did not
understand the nature of the burglary charge to which he pled guilty. As previously
noted, the defendant in Greathouse made a statement about his understanding of the
grand theft auto offense that negated an element of the offense. No such statement was
made by Davis with regard to his burglary offense here.
{¶ 61} In addition, unlike Greathouse, there is nothing in the record indicating that
Davis did not understand the nature of the burglary offense to which he pled guilty.
Although the prosecutor’s statement at the plea hearing omitted multiple elements of
burglary, the trial court partially cured the error by reciting all but one element, i.e., that
the occupied structure to which Davis trespassed was a “permanent or temporary
habitation of any person.” Contrary to the majority in this case, I believe the inadvertent
omission of that element does not establish that Davis did not understand the nature of
the burglary charge.
{¶ 62} The court in State v. Campanaro, 4th Dist. Highland No. 97CA942, 1998
WL 961067 (Nov. 10, 1998), reached a similar conclusion. In Campanaro, the
prosecutor failed to state the trespass element of the defendant’s burglary charge when
reciting the facts at the defendant’s plea hearing. Id. at *3. In affirming the validity of
the defendant’s guilty plea, the trial court relied, in part, on Cohen, 60 Ohio App. 2d 182,
396 N.E.2d 235. Specifically, the court in Campanaro found that the facts recited by the
prosecutor did not negate the existence of the trespass element. Id. In so holding, the
court in Campanaro stated that:
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In the instant case, the facts recited to the court failed to establish
the trespass element of the offense of burglary. They did not, however,
“absolutely negative[ ] the existence of” that element. That is, although the
state’s recitation of facts affirmatively placed defendants Kaczmarek and
Little in the burglarized residence and not appellant, the state’s recitation of
facts did not “absolutely negative” appellant’s presence therein.
Accordingly, Cohen does not support appellant's assertion that the trial
court erred in accepting his plea. In fact, Cohen supports the conclusion
that the trial court’s acceptance of appellant’s plea was proper. We have
concluded herein that the prosecutor’s oral description omits (but does not
absolutely negative) the element of trespass. Under Cohen, “a defendant's
conviction of the offense charged in the indictment is proper where the
prosecutor, through inadvertence or otherwise, omits the factual fundament
for an essential element of the offense from his oral description of the events
and circumstances surrounding the charge.” Accordingly, the trial court's
acceptance of appellant’s plea was proper under Cohen.
Campanaro at *3.
{¶ 63} The Campanaro court also partially relied on the fact that the defendant
made no claim indicating that he was unaware of, or that he misunderstood, the specific
allegations contained in the indictment. The court explained that:
“[W]here a defendant pleads guilty, with no claim of factual
innocence, neither Crim.R. 11 nor the Constitutions of Ohio or the United
States require the court to determine if there is a factual basis for the plea.”
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[State v. McDowell, 6th Dist. Erie No. E-92-78, 1993 WL 381576 (Sept. 30,
1993), citing State v. Ricks, 48 Ohio App. 2d 128, 131, 356 N.E.2d 312 (8th
Dist.1976)] * * *. Appellant made no claim of factual innocence at the time
he entered his plea. Accordingly, the trial court was not required to
determine if there was a factual basis for his plea. So long as the facts
alleged in the indictment, information or complaint were sufficient to justify
conviction of the offense charged, and the state’s recitation of facts did not
absolutely negative an element of the offense, Cohen, the trial court could
properly accept appellant's plea of guilty and convict him thereon. The
indictment herein alleged that appellant “did by force, stealth or deception,
trespass in an occupied structure or in a separately secured or separately
occupied portion thereof, towit [sic]: the residence of Howard Miles, with
purpose to commit therein a theft offense or any felony * * *.” These
allegations are sufficient to justify appellant’s conviction for the crime of
burglary.
Campanaro at *4. See also, State v. Elliott, 5th Dist. Licking No. 2006-CA-00155, 2007-
Ohio-4503 (distinguishing Greathouse and finding a voluntary plea of no contest where
the prosecutor omitted the venue element from the recitation of facts of 58 felony counts,
but did not otherwise negate any element of the charges).
{¶ 64} In this case, there is no dispute that the indictment charging Davis properly
set forth the elements of burglary. The plea form stated that Davis was entering a plea
of guilty to Count 2, burglary in violation of R.C. 2911.12(A)(2), a second degree felony.
It further stated that Davis “underst[ood] the nature of these charges and the possible
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defenses,” and that “[b]y pleading guilty [he] admit[s] committing the offense and will tell
the Court the facts and circumstances of [his] guilt.” Plea Agreement (Nov. 13, 2017),
Clark C.P. No. 2017-CR-0542(A), p. 1-3. At the plea hearing, Davis told the trial court
that he signed the plea agreement, had an opportunity to review it with his attorney, and
understood it. Plea Hearing Tr. p. 6.
{¶ 65} Like the defendant in Campanaro, Davis did not claim to be innocent,
coerced, or confused during the plea proceedings. Davis also did not make any
statement indicating that he did not understand the nature of the burglary offense at issue.
In fact, Davis’s plea form and statements to the trial court reflect that he did understand
the nature of the offense. Although the prosecutor and trial court omitted certain
elements of burglary, none of their statements negated an element of that offense. In
any event, Davis was entering a plea of guilty to the facts set forth in the indictment, not
the prosecutor’s and trial court’s misstatements.
{¶ 66} With regard to the element of burglary that requires “any person other than
an accomplice of the offender [to be] present or likely to be present” in the occupied
structure trespassed upon, the majority found it significant that the police report attached
to the PSI indicated that the residents of the burglarized address were not at home when
Davis and his accomplice entered the residence. However, that has no bearing on
whether the plea is valid since a guilty plea is a complete admission of every material fact
in the indictment and thus relieves the state from having to prove those facts.
Greathouse, 158 Ohio App. 3d 135, 2004-Ohio-3402, at ¶ 8. Moreover, the police report
indicated that the residents arrived as Davis and his accomplice were “in their driveway
coming out of their house” while “carrying bags” with stolen property. It is arguable that
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this would have been adequate evidence that the residents were “present or likely to be
present” during the course of the burglary. See State v. Kilby, 50 Ohio St. 2d 21, 23, 361
N.E.2d 1336 (1977). Regardless, such evidence certainly does not negate the “present
or likely to be present” element of burglary.
{¶ 67} Finally, we have repeatedly stated that substantial compliance with Crim.R.
11(C) is sufficient when waiving non-constitutional rights. We have also stated that:
“[W]hen non-constitutional rights are at issue, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently,
and voluntarily made generally must show a prejudicial effect.” * * *
“Prejudice in this context means that the plea would otherwise not have
been entered.”
(Internal citations omitted.) State v. Johnson, 2d Dist. Montgomery No. 27372, 2017-
Ohio-9227, ¶ 8.
{¶ 68} In light of the circumstances of this case, I do not agree that Davis was
prejudiced by the misstatements of omission at the plea hearing. Davis received the
substantial benefit of a written plea agreement, which Davis told the trial court he
understood, signed, and had an opportunity to review with his attorney. Plea Hearing Tr.
p. 4-6. There were no defects in the burglary charge set forth in the indictment. Davis
did not claim to be innocent, coerced, or confused. The misstatements of omission made
by the prosecutor and the trial court were not uncontested facts that absolutely negated
or disproved one or more elements of the indictment. Therefore, in my view, the
majority’s opinion improperly expands the case law of this district and other Ohio districts
by equating omissions in a recitation of facts to uncontroverted, absolute facts that negate
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one or more elements of the indicted offense.
{¶ 69} For the foregoing reasons, I believe Davis’s conviction for burglary should
be affirmed. Therefore, I respectfully dissent from the portion of the majority’s opinion
stating otherwise, and concur with the remainder of the majority’s opinion.
Copies sent to:
Andrew P. Pickering
John Lintz
Johnna M. Shia
Hon. Douglas M. Rastatter