[Cite as State v. Davis,

.]

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. -2-

{¶ 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 -3-

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 -4-

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). -5-

[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 -6-

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. -7-

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. -8-

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 -9-

plea must be entered knowingly, intelligently, and voluntarily. State v. Miller, 2017-Ohio-

478,

, ¶ 9 (2d Dist.), citing State v. Bateman, 2d Dist. Champaign No.

2010CA15,

, and Boykin v. Alabama,

,

,

(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,

.

{¶ 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,

. “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,

,

,

. “By following this rule, a court ensures

that the plea is knowing, intelligent, and voluntary.” State v. Cole, 2d Dist. Montgomery

No. 26122,

, 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 -10-

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,

,

,

. 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,

,

(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.”

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,

, ¶ 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,

,

,

.

“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.”

citing Clark at ¶ 32, 40.

b. Davis’s Guilty Plea

{¶ 20} Davis contends that his guilty pleas were not knowing, intelligent, and -11-

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,

, ¶ 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. -12-

consideration, * * * whether there is consideration at all is a proper question for a court.”

(Emphasis added.) Id., quoting Williams v. Ormsby,

,

,

, ¶ 43.

{¶ 23} “Normally, the dismissal of another criminal charge constitutes sufficient

consideration for a plea agreement.”

quoting State v. Moore, 4th Dist. Adams No.

13CA965,

, citing State v. Smith, 2d Dist. Greene No. 90 CA 87,

, *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. -13-

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,

,

,

. 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.”

“Voidable” judgments “can be set aside only if successfully challenged on direct appeal.” State v. Payne,

,

,

. -14-

(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

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,

,

, ¶ 34 (2d Dist.), quoting State v. Greathouse,

, 2004-

Ohio-3402,

(2d Dist.). “Pleading guilty is ‘an admission of every

material fact well pleaded in the indictment, dispensing with the necessity of proving them, -15-

and authorizing the court to proceed to judgment.’ ”

quoting

. 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.)

citing

.

{¶ 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 -16-

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,

, *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.” -17-

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,

,

,

.

{¶ 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,

,

,

.

{¶ 36} In Griggs, the Ohio Supreme Court was confronted with a defendant’s -18-

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,

,

. “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.”

{¶ 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,

.

{¶ 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,

. 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 -19-

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 -20-

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,

, 2016-Ohio-

1002,

, ¶ 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,

, 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,

,

(1954), paragraph three of the syllabus.

{¶ 45} Sentences are “contrary to law” when they do not fall within statutory ranges -21-

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,

,

(2d Dist.), citing State v. Pawlak,

8th Dist. Cuyahoga No. 103444,

. “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,

,

, ¶ 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,

,

,

(2d Dist.), citing

State v. Mathis,

,

,

.

{¶ 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 -22-

evidence that strictly relates to the conviction offense because the court is no longer

concerned * * * with the narrow issue of guilt.” State v. Bowser,

,

,

(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,

, citing State v. Clemons, 2d Dist. Montgomery No.

26038,

.

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 -23-

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 -24-

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,

,

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,

,

(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.”

. However, when reciting the facts at the

plea hearing, the prosecutor stated that the victim was sleeping throughout the entire

offense.

. 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).”

Therefore,

the First District found that the prosecutor’s statement “negative[d] the existence of an

essential element of the offense of robbery.”

-25-

{¶ 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.)

.

{¶ 56} In Greathouse,

,

,

,

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. -26-

{¶ 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 -27-

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,

(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,

,

. Specifically, the court in Campanaro found that the facts recited by the

prosecutor did not negate the existence of the trespass element.

In so holding, the

court in Campanaro stated that: -28-

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.” -29-

[State v. McDowell, 6th Dist. Erie No. E-92-78,

(Sept. 30,

1993), citing State v. Ricks,

,

(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 -30-

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,

,

. 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 -31-

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,

,

(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 -32-

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