[Cite as State v. Dehart, 2020-Ohio-3897.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28356
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-4839
                                                  :
 DAVID DEHART                                     :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                              Rendered on the 31st day of July, 2020.

                                             ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek,
Ohio 45432
      Attorney for Defendant-Appellant

                                             .............

WELBAUM, J.
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       {¶ 1} Defendant-appellant, David Dehart, appeals from his conviction in the

Montgomery County Court of Common Pleas after he pled guilty to one count of domestic

violence. In support of his appeal, Dehart claims that his guilty plea was not knowingly,

intelligently, and voluntarily entered. For the reasons outlined below, the judgment of the

trial court will be affirmed.



                                Facts and Course of Proceedings

       {¶ 2} On January 4, 2019, a Montgomery County Grand Jury returned an

indictment charging Dehart with one count of domestic violence in violation of R.C.

2919.25(A). The indictment indicated that the charge was a third-degree felony due to

Dehart having two prior domestic violence convictions. See R.C. 2919.25(D)(4). The

indicted charge arose after Dehart assaulted his 75-year-old, invalid mother with whom

he lived.

       {¶ 3} The matter was scheduled for a jury trial on March 11, 2019. On the day of

trial, Dehart instead decided to plead guilty to the indicted charge. In exchange for

Dehart’s guilty plea, the State agreed to stand silent as to a motion for judicial release,

but made no agreement with regard to sentencing.

       {¶ 4} After learning that Dehart wanted to plead guilty, the trial court conducted a

Crim.R. 11 plea colloquy. As part of the colloquy, the trial court had the State recite the

elements of the domestic violence charge in question, i.e., that Dehart did knowingly

cause or attempt to cause physical harm to a family or household member.              R.C.

2919.25(A). Dehart indicated that he understood the domestic violence charge and that

a plea of guilty was an admission of guilt to that charge. At the end of the colloquy, the
                                                                                          -3-


trial court asked Dehart if he had any questions, to which Dehart responded as follows:

             Your Honor, I just – I just want to state the fact that I – I’m not one to

      hurt or I did not hurt my mother. I’m a great person. I’m a law-abiding

      citizen. I have one child. And I know she’s going to be terribly torn apart

      about this if I go to prison. I humbly, respectfully, please probation, so I

      can go home with her. I mean, I love her to death. I work very hard. I’ve

      had a full-time job since I was 14. I went back to school last year. I’m

      severely depressed. I mean, I’ve been hurt – this – everyone gets hurt.

      I’m just an emotional person. I just – I – (indiscernible) is to go home on

      probation. I love my mother.

Trans. (Mar. 11, 2019), p. 9.

      {¶ 5} Following Dehart’s statement, the State noted its concern that Dehart had

“cast a cloud” on his admission of guilt when he stated that he did not hurt his mother.

Id. at 10. As a result, the State requested that the trial court have Dehart clarify on the

record that he still agreed he committed domestic violence by causing or attempting to

cause physical harm to his mother. The trial court saw no issue with Dehart’s statement

and denied the State’s request for clarification. Dehart thereafter entered a guilty plea

to the domestic violence charge, which the trial court accepted. The trial court then

ordered a presentence investigation and scheduled the matter for sentencing.              At

sentencing, the trial court ordered Dehart to serve 36 months in prison.

      {¶ 6} Dehart appealed from his conviction, and his appellate counsel filed a brief

under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), asserting the absence of any non-frivolous issues for appeal. Upon conducting
                                                                                          -4-


an independent review of the record as required by Anders, this court found at least one

non-frivolous issue for appeal concerning whether Dehart’s guilty plea was knowingly,

intelligently, and voluntarily entered. Therefore, this court rejected Dehart’s Anders brief

and appointed new appellate counsel to Dehart. Dehart’s new appellate counsel then

filed an appellate brief on Dehart’s behalf raising a single assignment of error for review.



                                  Assignment of Error

       {¶ 7} Under his sole assignment of error, Dehart contends that his guilty plea to

domestic violence was not knowingly, intelligently, and voluntarily entered because he

denied a material element of the offense at the plea hearing and contradicted his guilty

plea when he told the trial court that he did not hurt his mother. We disagree.

       {¶ 8} “To be constitutionally valid and comport with due process, a guilty plea must

be entered knowingly, intelligently, and voluntarily.”       State v. Bateman, 2d Dist.

Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama, 395 U.S. 238,

89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Compliance with the procedures set forth in

Crim.R. 11(C) ensures that a plea meets this constitutional mandate. State v. Cole, 2d

Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12.             Crim.R. 11(C) “ensures an

adequate record on review by requiring the trial court to personally inform the defendant

of his rights and the consequences of his plea and determine if the plea is understandingly

and voluntarily made.” State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975).

       {¶ 9} In this case, Dehart does not dispute that the trial court complied with Crim.R.

11(C) at his plea hearing. Instead, Dehart claims that the trial court should not have

accepted his guilty plea because he contradicted his plea when he told the trial court that
                                                                                        -5-


he did not hurt his mother. Dehart’s claim lacks merit.

       {¶ 10} To be guilty of domestic violence, one must “knowingly cause or attempt to

cause physical harm to a family or household member.”          (Emphasis added.)      R.C.

2919.25(A). Therefore, no actual physical harm is required; an attempt to cause physical

harm is sufficient to constitute the offense.    State v. Younker, 2d Dist. Darke No.

02CA1581, 2002-Ohio-5376, ¶ 23. Because only an attempt to cause physical harm is

necessary to be found guilty of domestic violence, Dehart’s statement that he did not hurt

his mother did not contradict his guilty plea to that offense. As noted above, Dehart could

have committed domestic violence simply by attempting to physically harm his mother.

       {¶ 11} Moreover, when reviewing Dehart’s entire statement to the trial court, it

becomes clear that the purpose of Dehart’s statement was not to deny the domestic

violence charge. Instead, Dehart’s statement provided the trial court with reasons to

impose probation as opposed to a prison term. For example, after stating that he did not

hurt this mother, Dehart went on to describe himself as a great person, a law-abiding

citizen, a hard worker, a depressed and emotional person, and a parent whose child

would be “torn apart” if he went to prison. Trans. (Mar. 11, 2019), p. 9. After mentioning

all of these perceived qualities, Dehart asked to be placed on probation. Therefore,

when considering Dehart’s entire statement, the effect of his statement was not to deny

that he had committed domestic violence, but to request leniency at sentencing.

       {¶ 12} For the foregoing reasons, Dehart’s sole assignment of error is overruled.

                                       Conclusion

       {¶ 13} Having overruled Dehart’s assignment of error, the judgment of the trial

court is affirmed.
                                               -6-


                               .............



DONOVAN, J. and FROELICH, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Chris Beck
David Dehart
Hon. Gregory F. Singer
