[Cite as State v. Schmick, 2011-Ohio-2263.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95210




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.


                                         EUGENE SCHMICK

                                                    DEFENDANT-APPELLANT



                                JUDGMENT:
                              PLEA VACATED,
                          REVERSED AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-532200

        BEFORE: Jones, J., Celebrezze, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEYS FOR APPELLANT

Ian N. Friedman
Ronald L. Frey
Ian N. Friedman & Associates, LLC
1304 West 6 Street
            ht




Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Jesse W. Canonico
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Eugene Schmick (“Schmick”), appeals his conviction for

17 counts of pandering sexually-oriented matter involving a minor, 27 counts of illegal use of a

minor in nudity-oriented material or performance, and one count of possessing criminal tools.

Finding merit to the appeal, we vacate his guilty pleas and remand the case.
       {¶ 2} In 2009, Schmick was charged with 28 counts of pandering sexually-oriented

matter involving a minor, 53 counts of illegal use of a minor in nudity-oriented material or

performance, and one count of possessing criminal tools.     On April 6, 2010, Schmick entered

pleas of guilty to the counts as described above.   The trial court sentenced him to a total of 17

years in prison, designated him a Tier II sex offender, and imposed five years of postrelease

control.

       {¶ 3} Schmick appeals, raising six assignments of error.       After review, we find that

the first and second assignments of error are dispositive of this appeal.    The first and second

assignments of error are as follows:

       I. The court’s failure to strictly comply with Crim.R. 11(C)(2)(c) violated the
       defendant-appellant’s right to due process of law as guaranteed by Article I, Section 10
       of the Ohio State Constitution and the Fourteenth Amendment to the United States
       Constitution.”

       II.    The defendant-appellant’s plea was not made knowingly, voluntarily or

       intelligently as the court failed to strictly comply with Crim.R. 11(C)(2)(c).”

       {¶ 4} In the first and second assigned errors, Schmick argues his guilty plea was not

knowingly, intelligently, and voluntarily made and, therefore, his right to due process of law

was violated when the trial court failed to inform him of his privilege against

self-incrimination.

       {¶ 5} Crim.R. 11(C) governs the process by which a trial court must inform a

defendant of certain constitutional and non-constitutional rights before accepting a felony plea
of guilty or no contest.     The underlying purpose of Crim.R. 11(C) is to convey certain

information to a defendant so that he can make a voluntary and intelligent decision regarding

whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480, 423 N.E.2d

115.

        {¶ 6} We employ a de novo standard of review to determine whether the trial court

accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, Cuyahoga App. No.

92796, 2009-Ohio-6827, ¶26, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d

1163.   We are required to review the totality of the circumstances and determine whether the

plea hearing was in compliance with Crim.R. 11(C).       Id.

        {¶ 7} Crim.R. 11(C)(2) provides, in pertinent part, that the court shall not accept a plea

of guilty 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 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.”

       {¶ 8} The trial court must strictly comply with those provisions of Crim.R. 11(C) that

relate to the waiver of constitutional rights. Stewart at 86, 88-89; Ballard at paragraph one of

the syllabus.   That being said, “strict compliance” does not require an exact recitation of the

precise language of the rule, but instead focuses on whether the trial court explained or referred

to the right in a manner reasonably intelligible to that defendant.     Id.

       {¶ 9} In State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the

Ohio Supreme Court held that “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 (1) the right to a

jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory process to obtain

witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the

privilege against compulsory self-incrimination.     When a trial court fails to strictly comply

with this duty, the defendant’s plea is invalid.”    Id. at ¶31.      If the record confirms that the

trial court failed to perform this duty, the defendant’s plea is constitutionally infirm, making it

presumptively invalid.    Id. at ¶29; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814

N.E.2d 51, ¶12 .

       {¶ 10} In the present case, the trial court failed to inform Schmick of his constitutional

right against compulsory self-incrimination or his “right to remain silent.”            See State v.

Burston, Cuyahoga App. No. 93645, 2010-Ohio-5120 (advising a defendant that he is waiving
his right to remain silent is sufficient to explain the privilege against compulsory

self-incrimination and complies with Crim.R. 11(C)).    In fact, the state concedes the first two

assignments of error as set forth by the appellant.

       {¶ 11} The trial court’s failure to strictly comply with Crim.R. 11(C)(2)(c) renders

Schmick’s plea invalid.    Consequently, we must vacate Schmick’s plea.

       {¶ 12} The first assignment of error is sustained.      Based on this, the remaining

assignments of error are moot.    See App.R. 12(A)(1)(c); appendix.

       {¶ 13} Accordingly, the plea is vacated, Schmick’s conviction and sentence are

reversed, and the case is remanded to the trial court for proceedings in accordance with this

opinion.




       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR




                                           Appendix


“III. The court’s imposition of consecutive sentences, without making appropriate findings and
        reasons as required by R.C. 2929.14, violated the defendant-appellant’s right to due
        process of law as guaranteed by Article I, Section 10 of the Ohio State Constitution and
        the Fourteenth Amendment to the United States Constitution.

“IV.   The defendant-appellant’s right to due process of law as guaranteed by Article I, Section
       10 of the Ohio State Constitution and the Fourteenth Amendment to the United States
       Constitution was violated when the trial court sentenced defendant upon claims of other
       alleged offenses occurring on other dates.

“V.    The defendant-appellant’s right to due process of law as guaranteed by Article I, Section
        10 of the Ohio State Constitution and the Fourteenth Amendment to the United States
        Constitution was violated when the trial court sentenced defendant to consecutive
        sentences amounting to seventeen (17) years.
“VI.   The defendant-appellant was denied his fundamental right to effective assistance of
       counsel as guaranteed by the Sixth Amendment to the Constitution of the Unites States
       of America and made applicable to the States by and through the Fourteenth
       Amendment to the Constitution of the United States of America.”
