[Cite as State v. Montgomery, 2014-Ohio-1789.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 12-13-11

        v.

ROBERT M. MONTGOMERY,                                    OPINION

        DEFENDANT-APPELLANT.




                Appeal from Putnam County Common Pleas Court
                           Trial Court No. 13-CR-24

                                     Judgment Affirmed

                             Date of Decision: April 28, 2014




APPEARANCE:

        Esteban R. Callejas for Appellant
Case No. 12-13-11


PRESTON, J.

      {¶1} Defendant-appellant, Robert M. Montgomery, appeals the Putnam

County Court of Common Pleas’ judgment entry of sentence. We affirm.

      {¶2} On May 13, 2013, the Putnam County Grand Jury indicted

Montgomery on Count One of illegal assembly or possession of chemicals for the

manufacture of drugs in violation of R.C. 2925.041(A), a third-degree felony;

Count Two of illegal manufacture of drugs in violation of R.C. 2925.04(A) &

(C)(3), a second-degree felony; and, Count Three of possession of drugs in

violation of R.C. 2925.11(A) & (C)(1)(a), a fifth-degree felony. (Doc. No. 1).

      {¶3} On May 15, 2013, Montgomery entered pleas of not guilty to all three

counts in the indictment. (See Doc. Nos. 5, 8, 11).

      {¶4} On August 28, 2013, the trial court held a change-of-plea hearing

wherein Montgomery withdrew his previously tendered plea of not guilty to Count

One and entered a plea of guilty, whereupon the State agreed to dismiss Counts

Two and Three of the indictment and to remain silent at sentencing. (Aug. 28,

2013 Tr. at 2). Montgomery signed a written plea agreement reflecting these

terms. (Doc. No. 29). The trial court accepted Montgomery’s plea, found him

guilty of Count One, and ordered a pre-sentence investigation (“PSI”) report.

(Aug. 28, 2013 Tr. at 8-9). The trial court dismissed Counts Two and Three of the

indictment. (See Nov. 19, 2013 Entry).


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       {¶5} On October 3, 2013, the trial court sentenced Montgomery to 30

months imprisonment. (Oct. 3, 2013 Tr. at 6). On October 9, 2013, the trial court

filed its judgment entry of sentence. (Doc. No. 35).

       {¶6} On October 16, 2013, Montgomery filed a notice of appeal. (Doc. No.

41).   He raises three assignments of error on appeal.      We elect to combine

Montgomery’s first and second assignments of error.

                           Assignment of Error No. I

       The trial court erred when it accepted the guilty plea which was
       against the manifest weight of the evidence and sufficiency of the
       evidence.

                           Assignment of Error No. II

       The trial court erred when it accepted the guilty plea as that plea
       was not knowingly, intelligently, and voluntarily given.

       {¶7} In his first assignment of error, Montgomery argues that, during the

Criminal Rule 11 colloquy, the State failed to present any evidence that the

criminal actions occurred in Ottawa, Putnam County, Ohio.

       {¶8} In his second assignment of error, Montgomery argues that he did not

knowingly, intelligently, and voluntarily enter his guilty plea.    Specifically,

Montgomery argues that the trial court failed to inform him of all of his rights

prior to accepting his plea. Montgomery also argues that the plea is invalid

because the State failed to allege and prove venue.



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       {¶9} As an initial, procedural matter, we note that the State failed to file an

appellee’s brief. Under these circumstances, App.R. 18(C) provides that this

Court “may accept the appellant’s statement of the facts and issues as correct and

reverse the judgment if appellant’s brief reasonably appears to sustain such

action.” After reviewing the record, we conclude that appellant’s brief does not

reasonably appear to sustain a reversal.

       {¶10} “‘When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points

renders enforcement of the plea unconstitutional under both the United States

Constitution and the Ohio Constitution.’” State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). To

that end, Crim.R. 11(C)(2), governing guilty pleas for felony-level offenses,

provides:

       In felony cases the court may refuse to accept a plea of guilty or a

       plea of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the

       following:

       (a) Determining that the defendant is making the plea voluntarily,

       with understanding of the nature of the charges and of the maximum

       penalty involved, and if applicable, that the defendant is not eligible


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       for probation or for the imposition of community control sanctions at

       the sentencing hearing.

       (b) Informing the defendant of and determining that the defendant

       understands the effect of the plea of guilty or no contest, and that the

       court, upon acceptance of the plea, may proceed with judgment and

       sentence.

       (c) Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to

       jury trial, to confront witnesses against him or her, to have

       compulsory process for obtaining witnesses in the defendant’s favor,

       and to require the state to prove the defendant’s guilt beyond a

       reasonable doubt at a trial at which the defendant cannot be

       compelled to testify against himself or herself.

       {¶11} A trial court must strictly comply with Crim.R. 11(C)(2)(c) and

orally advise a defendant before accepting a felony plea that the plea waives the

defendant’s constitutional rights. Veney at ¶ 31. “When a trial court fails to

strictly comply with this duty, the defendant’s plea is invalid.” Id. A trial court,

however, is required to only substantially comply with the non-constitutional

notifications in Crim.R. 11(C)(2)(a) and (b). Id. at ¶ 14-17.




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       {¶12} An appellate court reviews the substantial-compliance standard based

upon the totality of the circumstances surrounding the defendant’s plea and

determines whether he subjectively understood the implications of his plea and the

rights he waived. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 20.

“Furthermore, a defendant who challenges his guilty plea on the basis that it was

not knowingly, intelligently, and voluntarily made must show a prejudicial effect.

* * * The test is whether the plea would have otherwise been made.” State v.

Nero, 56 Ohio St.3d 106, 108 (1990).

       {¶13} Contrary to Montgomery’s arguments on appeal, the trial court

strictly complied with Crim.R. 11(C)(2)(c) at the change-of-plea hearing. (Aug.

28, 2013 Tr. at 5-6). Furthermore, the Crim.R. 11(C)(2)(c) notifications were also

contained within the written plea agreement that Montgomery read and signed in

open court. (Id. at 8); (Doc. No. 29). The trial court also substantially complied

with the Crim.R. 11(C)(2)(a) and (b) notifications. (Aug. 28, 2013 Tr. at 2-6).

During the colloquy, Montgomery indicated that he understood the nature of the

charges against him and the rights he was waiving by pleading guilty. (Id. at

passim).   Consequently, we are not persuaded that the trial court erred by

accepting Montgomery’s guilty plea. Notably, Montgomery has also failed to

argue—much less establish—prejudice in this case, i.e. that he would not have

pled guilty but for the trial court’s alleged errors. Nero at 108.


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      {¶14} Montgomery also argues that his guilty plea was invalid because the

State failed to indicate, at the change-of-plea hearing, that Putnam County, Ohio

was the proper venue.          We summarily reject that argument.      To begin,

Montgomery has waived this issue by failing to raise it below. State v. Wheat,

10th Dist. Franklin No. 05AP-30, 2005-Ohio-6958, ¶ 10, citing State v. Loucks, 28

Ohio App.2d 77, 78 (4th Dist.1971); Crim.R. 12(C)(2).           Aside from that,

Montgomery admitted to venue when he pled guilty to Count One of the

indictment, which specifically alleged that the criminal act occurred in Putnam

County, Ohio. United States v. Broce, 488 U.S. 563, 569-570, 109 S.Ct. 757

(1989) (A guilty plea admits to committing the crime charged, as described in the

indictment.). Proper venue was also provided in the bill of particulars. (Doc. No.

17). Quite simply, Montgomery’s guilty plea precludes the venue argument on

appeal. State v. McCartney, 55 Ohio App.3d 170 (9th Dist.1988), syllabus.

      {¶15} For the aforementioned reasons, we overrule Montgomery’s first and

second assignments of error.

                            Assignment of Error No. III

      The trial court erred when it failed to allow Appellant to exercise
      his right to make a statement before sentencing.

      {¶16} In his third assignment of error, Montgomery argues that the trial

court erred by failing to permit him to make a statement before sentencing

requiring a resentencing.

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       {¶17} Crim.R. 32(A)(1) provides that “[a]t the time of imposing sentence,

the court shall * * * address the defendant personally and ask if he or she wishes

to make a statement in his or her own behalf or present any information in

mitigation of punishment.” When a trial court imposes sentence “without first

asking the defendant whether he or she wishes to exercise the right of allocution

created by Crim.R. 32(A), resentencing is required unless the error is invited error

or harmless error.” State v. Campbell, 90 Ohio St.3d 320 (2000), paragraph three

of the syllabus. See also State v. Reynolds, 80 Ohio St.3d 670, 684 (1998).

       {¶18} In this case, the trial court asked Montgomery if he wanted to make a

statement, and Montgomery testified, “No, sir.”         (Oct. 3, 2013 Tr. at 4).

Consequently, the trial court did not violate Montgomery’s right of allocution in

this case, despite his allegation on appeal.

       {¶19} Montgomery’s third assignment of error is, therefore, overruled.

       {¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jlr




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