[Cite as State v. Putnam, 2018-Ohio-3724.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                         STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                             JAMES CHRISTOPHER PUTNAM,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 17 BE 0036.


                                   Criminal Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                     Case No. 17 CR 33.

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                           JUDGMENT:
                                      Reversed and Remanded.


Atty. Daniel P. Fry, Prosecuting Attorney, and Atty. J. Flanagan, Assistant Prosecuting
Attorney, Belmont County Courthouse Annex 1, 147-A West Main Street, St. Clairsville,
Ohio 43950, for Plaintiff-Appellee, and
Atty. Dennis Belli, 536 South High Street, Floor 2, Columbus, Ohio 43215, for
Defendant-Appellant.
                                         Dated:
                                   September 13, 2018
                                                                                      –2–




Donofrio, J.

       {¶1}    Defendant-appellant, James Putnam, appeals from a Belmont County
Common Pleas Court judgment convicting him of failure to comply with the order of a
police officer, following his guilty plea.
       {¶2}    On October 1, 2016, a state highway patrol trooper clocked appellant
travelling at 97 miles per hour in a 65-miles-per-hour zone. The trooper activated his
light and siren but appellant did not pull over. With lights and sirens activated, the
trooper continued to pursue appellant. Appellant disregarded stop signs, cut through
berms, traveled left of center, and passed vehicles while driving off the right side of the
roadway. The pursuit continued through Bethesda, where appellant eventually traveled
off the right side of the roadway, striking mailboxes and an embankment. Appellant
then turned into a residential yard, where he bailed out of the vehicle. Appellant ran into
the woods. Troopers caught up with appellant and placed him under arrest.
       {¶3}    A grand jury indicted appellant on one count of failure to comply, a third-
degree felony in violation of R.C. 2921.331(B)(C)(5)(a)(ii); and one count of driving
under the influence, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(a).
Appellant initially pleaded not guilty.
       {¶4}    Following a Crim.R.11 plea agreement, appellant changed his plea to
guilty of failure to comply. In exchange, plaintiff-appellee, the State of Ohio, dropped
the charge for driving under the influence. The trial court accepted appellant’s plea and
subsequently sentenced him to 36 months in prison. In addition, the court suspended
appellant’s driving privileges for three years.
       {¶5}    Appellant filed a timely notice of appeal on August 2, 2017. He now raises
four assignments of error.
       {¶6}    Because appellant’s second assignment of error is dispositive of this
appeal, we will address it first.
       {¶7}    Appellant’s second assignment of error states:




Case No. 17 BE 0036
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              THE TRIAL COURT’S FAILURE TO ASCERTAIN DEFENDANT-
       APPELLANT’S UNDERSTANDING OF THE DEGREE OF OFFENSE TO
       WHICH HE WAS PLEADING GUILTY, THE MAXIMUM TERM OF
       IMPRISONMENT FOR THE OFFENSE, AND THE APPLICABILITY OF A
       MANDATORY DRIVER’S LICENSE SUSPENSION, RESULTED IN A
       LACK OF SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS
       OF CRIM.R. 11.

       {¶8}   Here, appellant argues that the trial court failed to comply with Crim.R.
11(C) in accepting his guilty plea. Thus, he asserts he did not enter his plea knowingly,
voluntarily, and intelligently. Appellant goes on to argue that the trial court failed to
determine whether he understood the maximum penalties of the offense.
       {¶9}   When determining the validity of a plea, this court must consider all of the
relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-0365, 2005-Ohio-
552, ¶ 8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 (1970). Pursuant to
Crim.R. 11(C)(2), the trial court must follow a certain procedure for accepting guilty
pleas in felony cases. Before the court can accept a guilty plea to a felony charge, it
must conduct a colloquy with the defendant to determine that he understands the plea
he is entering and the rights he is voluntarily waiving. Crim.R. 11(C)(2). If the plea is not
knowing, intelligent, and voluntary, it has been obtained in violation of due process and
is void. State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-6806, ¶ 11, citing Boykin
v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709 (1969).
       {¶10} Because appellant has asserted that he did not enter his plea knowingly,
voluntarily, and intelligently, we must examine the plea colloquy to determine if the trial
court met all of the requirements that Crim.R. 11(C) demands.
       {¶11} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of five federal constitutional rights. Martinez, 7th Dist. No. 03-MA-196, ¶ 12.
These rights include the right against self-incrimination, the right to a jury trial, the right
to confront one's accusers, the right to compel witnesses to testify by compulsory
process, and the right to proof of guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c).
       {¶12} A trial court need only substantially comply with Crim.R. 11(C)(2)
pertaining to non-constitutional rights such as informing the defendant of “the nature of


Case No. 17 BE 0036
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the charges with an understanding of the law in relation to the facts, the maximum
penalty, and that after entering a guilty plea or a no contest plea, the court may proceed
to judgment and sentence.” Martinez, supra, ¶ 12, citing Crim.R. 11(C)(2)(a)(b).
       {¶13} As to his constitutional rights, at the change of plea hearing the trial court
advised appellant that by changing his plea he was giving up the right to confront
witnesses against him, the right to compulsory service of witnesses in his favor, the right
to have the state prove his guilty beyond a reasonable doubt, and the right to not be
compelled to testify against himself. (Plea Tr. 5).
       {¶14} The trial court also advised appellant that he was giving up his right to a
“speedy and public trial.” (Tr. 5). But the court did not advise appellant that he was
waiving his right to a “jury” trial. The right to a jury trial is one of the five constitutional
rights that Crim.R. 11(C)(2)(c) requires the trial court to advise a defendant of before
accepting a guilty plea.
       {¶15} This court recently reversed an appellant’s conviction where the trial court
employed the same language that the court used in this case. In State v. Thomas, 7th
Dist. No. 17 BE 0014, 2018-Ohio-2815, ¶ 12, when conducting the change of plea
colloquy, the trial court asked Thomas if he understood he was waiving the right “to a
speedy and public” trial. On appeal, we noted that in “some cases when a reviewing
court is faced with this situation, the court can conclude there was a valid waiver by
finding the reference to a jury was orally made when explaining some other aspect of
the plea.” Id. at ¶ 13. But we found that in Thomas’s case, there was no reference to a
jury in any other part of the plea transcript. Id. at ¶ 15. Because “strict compliance with
the plea advisements on constitutional rights is required,” we reversed Thomas’s
conviction based on the trial court’s failure to advise Thomas that he was waiving his
right to a jury trial. Id. at ¶¶ 1, 16.
       {¶16} As was the case in Thomas, the trial court in this case made no reference
whatsoever to appellant’s right to a jury trial. Instead, it referred only to a right to a
“speedy and public trial.” Because this language does not strictly comply with Crim.R.
11(C)(2) by advising appellant of his constitutional right to jury trial, appellant’s plea was
not entered knowingly, voluntarily, and intelligently.




Case No. 17 BE 0036
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          {¶17} Appellant goes on to argue that the trial court failed to advise him of the
possible penalties he faced. As noted above, the trial court need only show substantial
compliance with Crim.R. 11(C)(2) pertaining to non-constitutional rights including
informing the defendant of the maximum penalty, the nature of the charges, and that
after entering a guilty plea the court may proceed to judgment and sentence. Martinez,
supra, ¶ 12, citing Crim.R. 11(C)(2)(a)(b).
          {¶18} In this case, the trial court informed appellant that upon accepting his plea
it could immediately proceed to judgment and sentence.            (Plea Tr. 6).   The court
questioned appellant’s attorney, asking if he had explained to appellant the charge to
which he was pleading, the degree of the felony, and the minimum and maximum
punishments. (Plea Tr. 3). Appellant’s attorney indicated that he had explained each of
these items to appellant. (Plea Tr. 3). The court then asked appellant if his attorney
had explained everything to him, if he realized which offense he was pleading to, and if
he understood what the maximum sentence could be. (Plea Tr. 4). Appellant stated
that he understood each of these items. (Plea Tr. 4-5). Additionally, appellant told the
court that he had reviewed the plea agreement with his counsel and that he understood
its terms. (Plea Tr. 5). The plea agreement plainly stated that appellant was pleading
guilty to third-degree felony failure to comply and that he faced a maximum prison term
of three years and a license suspension. Based on these circumstances, the trial court
substantially complied with Crim.R. 11(C) in informing appellant of his non-constitutional
rights.
          {¶19} But because the trial court did not strictly comply with Crim.R. 11(C)(2) in
advising appellant of his constitutional right to a jury trial before accepting his guilty
plea, appellant’s plea was not valid.
          {¶20} Accordingly, appellant’s second assignment of error has merit and is
sustained.
          {¶21} Appellant’s remaining assignments of error state, respectively:

                WITHOUT       AN    EXPRESS      ADMISSION       BY    DEFENDANT-
          APPELLANT TO AN AGGRAVATING FACT THAT ELEVATES A
          MISDEMEANOR VIOLATION OF R.C. 2921.331 TO A FELONY, THE
          IMPOSITION OF A SENTENCE FOR A THIRD-DEGREE FELONY


Case No. 17 BE 0036
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       VIOLATED HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATES CONSTITUTION.

              THE      TRIAL    COURT’S        RELIANCE       ON   DEFENDANT-
       APPELLANT’S PRIOR HISTORY OF CHARGES FOR WHICH THE
       DISPOSITION       LISTED     IN   THE    PRESENTENCE        REPORT       IS
       “UNKOWN,” TO JUSTIFY A MAXIMUM PRISON TERM, RESULTED IN A
       SENTENCE THAT IS CLEARLY AND CONVINCINGLY UNSUPPORTED
       BY THE RECORD AND/OR IS CONTRARY TO LAW.

              DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO THE
       EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE
       SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, DUE TO MULTIPLE INSTANCES OF DEFICIENT
       PERFORMANCE.

       {¶22} Given our resolution of appellant’s second assignment of error, appellant’s
first, third, and fourth assignments of error are rendered moot.
       {¶23} For the reasons stated above, the trial court’s judgment is hereby reversed
and the matter is remanded to the trial court for further proceedings pursuant to law and
consistent with this opinion.

Waite, J., concurs
Robb, P. J., concurs




Case No. 17 BE 0036
[Cite as State v. Putnam, 2018-Ohio-3724.]




        For the reasons stated in the Opinion rendered herein, appellant’s second
assignment of error is sustained and it is the final judgment and order of this Court that
the judgment of the Court of Common Pleas of Belmont County, Ohio, is reversed.
Appellant’s first, third, and fourth assignments of error are rendered moot. We hereby
remand this matter to the trial court for further proceedings according to law and
consistent with this Court’s Opinion. Costs to be taxed against the Appellee.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
