[Cite as State v. Conley, 2019-Ohio-2763.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. No.     18CA011314

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
NOAH CONLEY                                          COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   17CR097259

                                 DECISION AND JOURNAL ENTRY

Dated: July 8, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Noah Conley, appeals from the judgment of the Lorain County Court

of Common Pleas. This Court affirms.

                                                I.

        {¶2}     Mr. Conley pled guilty to two counts of improperly discharging a firearm at or

into a habitation or school safety zone, felonies of the second degree, one count of menacing by

stalking, a felony of the fourth degree, one count of receiving stolen property, a felony of the

fourth degree, and one count of aggravated menacing, a misdemeanor of the first degree. The

felonies were all accompanied by firearm specifications. The trial court sentenced him to an

aggregate total prison term of five years.

        {¶3}     Mr. Conley moved this Court for leave to file a delayed appeal, which was

granted. He now appeals from the trial court’s judgment and raises two assignments of error for

our review.
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       {¶4}   Because Mr. Conley’s assignments of error are related, we will consolidate them

and address them together.

                                               II.

                              ASSIGNMENT OF ERROR ONE

       APPELLANT SUFFERED A DEPRIVATION OF HIS CONSTITUTIONAL
       RIGHTS BECAUSE THE TRIAL COURT ACCEPTED THE FELONY
       GUILTY PLEAS BEFORE EXPLAINING THE CONSTITUTIONAL RIGHTS
       BEING SURRENDERED IN VIOLATION OF CRIMINAL RULE 11.

                             ASSIGNMENT OF ERROR TWO

       THE FELONY PLEAS MUST BE VACATED BECAUSE THE TRIAL COURT
       FAILED TO STRICTLY COMPLY WITH OHIO CRIMINAL RULE 11(C)(2)
       BEFORE ASKING CONLEY IF HE WISHED TO PLEAD GUILTY AND TO
       SURRENDER HIS CONSTITUTIONAL RIGHTS.

       {¶5}   In his first assignment of error, Mr. Conley argues that the trial court erred when

it accepted his guilty pleas before informing him of the constitutional rights he waived by

pleading guilty. In his second assignment of error, he argues that the trial court erred when it

failed to strictly comply with Crim.R. 11 by not explaining his constitutional rights before he

entered his guilty pleas. We disagree with both propositions.

       {¶6}   We first note that Mr. Conley appears to misinterpret throughout the body of his

merit brief the requirements set forth in Crim.R. 11. Under his first assignment of error, he

claims the trial court erroneously “appeared to accept” his guilty pleas prior to advising him of

his rights. “Crim.R. 11(C) prohibits a trial judge from accepting a guilty plea without first

ensuring that the defendant is fully informed regarding his rights and that he understands the

consequences of his plea.” (Emphasis added.) State v. Farnsworth, 9th Dist. Medina No.

15CA0038-M, 2016-Ohio-7919, ¶ 4. See also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, ¶ 13. The rule does not prohibit trial courts from “appearing to accept” guilty pleas prior
                                                3


to advising defendants of their rights. Under his second assignment of error, he claims that trial

courts are required to explain a defendant’s constitutional rights before the defendant pleads

guilty. However, the Supreme Court of Ohio has held that a defendant need only be informed of

his constitutional rights “in a reasonable manner at the time of entering his guilty plea * * *.”

(Emphasis added.) State v. Ballard, 66 Ohio St.2d 473, 478 (1981). Crim.R. 11(C)(2)(c)

requires trial courts to address the defendant personally prior to accepting the defendant’s guilty

plea, and:

       [i]nform[] the defendant and determin[e] 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.

Trial courts must strictly comply with the mandates of Crim.R. 11(C)(2)(c). Veney at ¶ 31. If a

trial judge fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), the guilty

plea is invalid “‘under a presumption that it was entered involuntarily and unknowingly.’” State

v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31, quoting State v. Griggs, 103 Ohio St.3d 85,

2004-Ohio-4415, ¶ 12.

       {¶7}    Mr. Conley relies on dicta from a Tenth District case to support his

misinterpretation of Crim.R. 11. See State v. Rand, 10th Dist. Franklin No. 03AP-745, 2004-

Ohio-5838, ¶ 13 (stating the issue as being whether Mr. Rand was afforded a full Crim.R. 11

hearing “before he entered the plea”). However, not only is this language merely dicta from

another district, but the Rand Court’s discussion of constitutional rights and Crim.R. 11(C)(2)(c)

was limited to the following statement: “A trial court must strictly comply with the provisions of

Crim.R. 11(C)(2) that relate to the waiver of constitutional rights * * *.” Id. at ¶ 14. Rand,

instead, dealt primarily with a trial court’s failure to substantially comply with the
                                                 4


nonconstitutional requirements of Crim.R. 11(C)(2)(a). See id. at ¶ 22. The trial court had

improperly informed Mr. Rand at his plea hearing and erroneously sentenced him to a

nonmandatory prison term, then later amended its judgment entry to reflect that the sentence was

actually mandatory. See id. at ¶ 2-3. Therefore, Rand is neither persuasive to us in the instant

matter, nor relevant to Mr. Conley’s appeal. Mr. Conley also broadly cites to an Eleventh

District case for the same proposition, yet that case does not support his argument and instead

cites to the Ballard holding, whereby “a defendant must be ‘informed in a reasonable manner at

the time of entering his guilty plea of his [constitutional] rights * * *.’” (Emphasis added.) State

v. Gensert, 11th Dist. Trumbull No. 2015-T-0084, 2016-Ohio-1163, ¶ 8, quoting Ballard at 478.

       {¶8}    Regardless, a review of the record here reveals that the trial court in a reasonable

manner at the time of entering the guilty plea, and prior to actually accepting the guilty

pleas properly advised Mr. Conley of the constitutional rights he would be waiving by pleading

guilty. The trial court engaged him in an extensive Crim.R. 11 plea colloquy, explaining each

charge to Mr. Conley and asking how he wished to plead to each one. Mr. Conley pled guilty to

each charge individually. We discern nothing from the record that demonstrates the court, at that

point, then accepted Mr. Conley’s guilty pleas prior to advising him of his constitutional rights.

The court, instead, continued its Crim.R. 11 plea colloquy with Mr. Conley, which included the

following discussion regarding the constitutional rights he would be waiving by pleading guilty:

       THE COURT: Do you understand when you plead guilty, like you are doing now,
       you are waiving certain constitutional rights that you have?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT: Do you understand you are waiving your right to a trial by [a] jury
       of twelve people?

       THE DEFENDANT: Yes, Your Honor.
                                                 5


       THE COURT: Do you understand you are waiving your right to make the State
       prove your guilt beyond a reasonable doubt to all twelve of those people?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT: Do you understand you are waiving your right to have your lawyer
       cross-examine any witness that testifies against you at trial?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT: Do you understand you are waiving your right to issue subpoenas
       to force witnesses to show up on your behalf at trial?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT: Do you understand you are waiving the right you have to remain
       silent throughout your trial and that means that no one can force [you to] take the
       witness stand and testify; furthermore, if you decide you are going to remain
       silent, the State can’t use your silence against you? Okay?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT: All right. Do you have any questions for me on your plea here
       today?

       THE DEFENDANT: No, Your Honor.

       THE COURT: All right. Based on all of the information that I have explained to
       you, is it still your desire to have the [c]ourt accept your guilty plea?

       THE DEFENDANT: Yes, Your Honor.

Only then did the trial court actually accept Mr. Conley’s guilty pleas:

       THE COURT: All right. Let the record reflect the defendant was here with
       counsel in open court. He was informed of all constitutional rights and has made
       a knowing, intelligent and voluntary waiver of those rights. I also find he does
       understand the nature of the charges against him, the effect of his plea, as well as
       the maximum penalty that could be given. Finding it to be voluntary[,] the
       [c]ourt accepts the defendant’s plea and finds him guilty of the indictment.

(Emphasis added.). The court then set the matter for sentencing at a later date.

       {¶9}    After reviewing the record, we determine that the trial court strictly complied with

its obligations under Crim.R. 11(C)(2)(c). The court did not err when it properly explained the
                                                 6


constitutional rights Mr. Conley would be waiving by pleading guilty in a reasonable manner at

the time the plea was entered and prior to accepting the pleas.

       {¶10} Mr. Conley’s first and second assignments of error are overruled.

                                                III.

       {¶11} Mr. Conley’s first and second assignments of error are both overruled. The

judgment of the Lorain County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



CALLAHAN, J.
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CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
