[Cite as State v. Smith, 2019-Ohio-4115.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY

STATE OF OHIO,                                 :    Case No. 19CA3680

        Plaintiff-Appellee,                    :

        v.                                     :    DECISION AND
                                                    JUDGMENT ENTRY
ROBERT D. SMITH,                               :

        Defendant-Appellant.                   :    RELEASED 10/03/2019

                                            APPEARANCES:

Paige J. McMahon, Chillicothe, Ohio, for appellant.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.

Hess, J.
        {¶1}     Robert D. Smith pleaded guilty to theft from a person in a protected class.

After accepting the plea, the court convicted him and imposed a sentence. Smith

contends that his guilty plea was not entered knowingly, intelligently and voluntarily

because the trial court did not explain to him that if he had paid only a nominal amount

towards restitution, rather than a substantial amount, the trial court would have granted

his request for intermittent jail service.

        {¶2}     However, the trial court correctly found Smith’s plea was made knowingly,

intelligently and voluntarily. The trial court informed Smith that it would be willing to

consider some form of intermittent jail service only if Smith made a substantial or a full

payment of restitution at sentencing. Smith stated that he understood that when he

entered the guilty plea. Smith subsequently failed to make any restitution payment and
Ross App. No. 19CA3680                                                                  2


the trial court informed him he would not receive intermittent jail service. The trial court

sentenced him to 75 consecutive days in jail. We overrule Smith’s assignment of error

and affirm the trial court’s judgment.

                                         I. FACTS

       {¶3}   The state indicted Smith for theft from a person in a protected class in

violation of R.C. 2913.02, a fourth-degree felony. He pleaded guilty. The trial court

conducted a Crim.R. 11 colloquy to determine whether Smith was fully informed of his

rights and understood the consequence of his guilty plea. Upon being satisfied that Smith

voluntarily entered his plea and waived his constitutional rights, the court accepted his

plea and convicted him.

       {¶4}   At the plea hearing, the trial court expressed a willingness to consider some

form of intermittent jail service, such as 14 days on and 14 days off, in order to assist

Smith with childcare obligations. However, the trial court stated that it would consider

intermittent jail service only if Smith made “a substantial payment or a full payment of

restitution at sentencing.” A month later at the sentencing hearing, Smith’s counsel

explained that because Smith was the sole caretaker of several small children, he was

financially unable to make any restitution payment. The trial court asked Smith if he would

like to make a statement and Smith replied, “No, sir.”

       {¶5}   The trial court explained the deal again to Smith, “If you made a payment

toward restitution, I would seriously consider allowing you to serve intermittent time in the

Ross County Jail so that you could take care of your children.” The trial court stated that

it would not consider honoring the request of intermittent jail time because Smith did not

generate so much as one dollar towards restitution for the victims: “You had your
Ross App. No. 19CA3680                                                                 3


opportunity and you were silent just like you were silent on the ability to generate one

dollar. Had you brought in a dollar, at least I would have considered honoring your

request.” The trial court imposed a 75-day consecutive (non-intermittent) sentence in the

county jail, 200 hours of community service, and ordered restitution in the sum of

$1,350.00.

                              II. ASSIGNMENT OF ERROR

      {¶6}   Smith assigns the following error for our review:


    APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER
    THE FOURTEENTH AMENDMENT TO THE UNITED STATES
    CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
    CONSTITUTION WHEN THE TRIAL COURT ACCEPTED AN UNKNOWING,
    UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA.


                                III. LAW AND ANALYSIS

                                 A. Standard of Review

      {¶7}    A defendant who enters a plea in a criminal case must act 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.

See State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting

State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). An appellate court that

determines whether a guilty plea was entered knowingly, intelligently, and voluntarily must

conduct a de novo review of the record to ensure that the trial court complied with the

constitutional and procedural safeguards. See State v. Cassell, 2017-Ohio-769, 79

N.E.3d 588, ¶ 30-32 (4th Dist.), see also State v. Moore, 4th Dist. Adams No. 13CA965,

2014-Ohio-3024, ¶ 13.
Ross App. No. 19CA3680                                                                 4


                          B. Defendant’s Claim of Lack of Knowledge

       {¶8}   To decide Smith’s claim we look to Crim.R. 11(C), which governs the

process for accepting a felony plea of guilty or no contest. See Veney at ¶ 8. Before

accepting a guilty plea in a felony case a trial court must address the defendant personally

and determine 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.” Crim.R. 11(C)(2)(a). The court must inform the

defendant of both the constitutional and nonconstitutional rights he is waiving and

determine that he “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.” Crim.R.

11(C)(2)(b). Finally, the court must determine that the defendant understands that he “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.” Crim.R. 11(C)(2)(c).

       {¶9}   Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient for a

valid plea because they do not involve constitutional rights. State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. “ ‘Substantial compliance means that,

under the totality of the circumstances, appellant subjectively understood the implications

of his plea and the rights he waived.’ ” State v. McDaniel, 4th Dist. Vinton No. 09CA677,

2010-Ohio-5215, ¶ 13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP-903, 2009-

Ohio-3240, ¶ 6.
Ross App. No. 19CA3680                                                                                5


        {¶10} But strict compliance with Crim.R. 11(C)(2)(c) is required because

constitutional rights are involved. “ ‘However, failure to [literally comply] will not

necessarily invalidate a plea. The underlying purpose, from the defendant's perspective,

of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a

voluntary and intelligent decision whether to plead guilty.’ ” Veney at ¶ 18, quoting State

v. Ballard, 66 Ohio St.2d 473, 479–480, 423 N.E.2d 115 (1981). A guilty plea that is not

entered into knowingly, intelligently, and voluntarily is void. State v. Moore, 165 Ohio

App.3d 538, 2006-Ohio-114, ¶ 22 (4th Dist.), citing McCarthy v. United States, 394 U.S.

459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

        {¶11} Smith contends that he did not knowingly, intelligently, and voluntarily make

his guilty plea under Crim.R. 11(C)(2)(a) because he was not informed that making a one-

dollar restitution payment was all that was required of him to avoid the sterner sentence.1

For the nonconstitutional notifications required by Crim.R. 11(C)(2)(a), substantial

compliance is sufficient. “ ‘[A] defendant who challenges his guilty plea on the basis that

it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.’ ”

Veney at ¶ 15, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). To

demonstrate prejudice in this context, the defendant must show that the plea would

otherwise not have been entered. Veney at ¶ 15.

        {¶12} Smith contends that at the plea hearing, the trial court informed him that he

must make substantial payment towards restitution to receive an intermittent jail

sentence, but at the sentencing hearing the trial court changed the requirement to only a

one-dollar payment to receive an intermittent sentence. Smith inaccurately characterizes


1 Smith does not contend that the trial court erred in any of the other requirements of Crim.R. 11(C) and
the record shows that the trial court conducted a proper Crim.R. 11(C) plea colloquy.
Ross App. No. 19CA3680                                                                                   6


the trial court’s statements. At the sentencing hearing, the trial court did not state that all

Smith had to do was pay one-dollar restitution to obtain an intermittent jail sentence.

Instead the trial court explained it was Smith’s lack of sincere initiative towards restitution

for the victims that guided the trial court’s discretion. Had Smith made even the slightest

showing of good faith towards restitution for the victims, it might have triggered some

discretionary leniency because of the trial court’s concern for Smith’s small children:

        If you made a payment toward restitution, I would seriously consider
        allowing you to serve intermittent time * * * so that you could take care of
        your children. * * * I know that you probably do care about your children but
        a deal is a deal. You didn’t even come up with a dollar. * * * Had you brought
        in a dollar, at least I would have considered honoring your request. I hate to
        punish your children because you can’t keep a bargain and apparently don’t
        want to generate any kind of money to pay the victims of this offense back
        * * * you’re going to spend some time in the Ross County Jail, not as much
        as the prosecutor wants. This is your first foray into the big time so to speak.

        {¶13} The trial court was not changing the standard of the previously agreed

sentencing terms, but rather was explaining that no amount of discretionary leniency

would be shown where Smith failed to take even the smallest steps to begin restitution

for the victims. Smith received the benefit of his bargain – he failed to make restitution,

so the trial court did not consider intermittent sentencing and instead sentenced him to

75 consecutive days in jail.2 Moreover, Smith has failed to contend that he was prejudiced

and that his plea would not have been otherwise entered. Here where Smith argues that

the trial court intended to be more lenient with restitution than it led him to believe, it

strains the limits of credulity to believe Smith would have changed his plea.




2The state points out that the 75-day sentence imposed by the trial court was less than the 90-day sentence
agreed to by the parties. The trial court stated it was imposing jail time, but “not as much as the prosecutor
wants.”
Ross App. No. 19CA3680                                                                   7


         {¶14} Smith also contends that the trial court failed to allow him the right to make

a statement on his own behalf as provided in Crim.R. 32(A)(1), which states, “* * *At the

time of imposing sentence, the court shall do all of the following: (1) Afford counsel an

opportunity to speak on behalf of the defendant and 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.”

         {¶15} The record shows that the trial court complied with Crim.R. 32(A)(1) in

allowing both Smith’s attorney an opportunity to be heard and, after Smith’s counsel

spoke, asking Smith, “* * * Mr. Smith, would you like to make a statement as to why

sentence should not be imposed or in mitigation or lessening of your punishment?” Smith

responded, “No, sir.” After Smith declined to make a statement, he later interrupted the

trial court and interjected excuses for his failed restitution efforts. The trial court

admonished him for the interruption. The trial court had previously given Smith an

opportunity to speak and was simply controlling the courtroom decorum by admonishing

Smith for the interruption. “A trial judge is empowered to maintain decorum and enforce

reasonable rules to insure the orderly and judicious disposition of the court's business.”

State v. Baskin, 3rd Dist. Allen No. 1-18-23, 2019-Ohio-2071, ¶ 22. The record shows

that the trial court complied with Crim.R. 32(A)(1) and Smith declined the opportunity to

speak.

         {¶16}   We overrule Smith’s sole assignment of error.
Ross App. No. 19CA3680                                                       8




                                  IV. CONCLUSION

      {¶17} Having overruled the assignment of error, we affirm the trial court’s

judgment.

                                                         JUDGMENT AFFIRMED.
Ross App. No. 19CA3680                                                                    9



                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J. & McFarland, J.: Concur in Judgment and Opinion.


                                           For the Court,


                                           BY: ________________________
                                               Michael D. Hess, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
