[Cite as State v. Smiddy, 2015-Ohio-4200.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2014-CA-148
                                                   :
 v.                                                :   Trial Court Case No. 2014-CR-492
                                                   :
 CHARLES SMIDDY                                    :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 9th day of October, 2015.

                                              ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting
Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

BRANDON CHARLES MCCLAIN, Atty. Reg. No. 0088280, 117 South Main Street, Suite
400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                             .............
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WELBAUM, J.

       {¶ 1} Defendant-Appellant, Charles Smiddy, appeals from his conviction and

sentence on two counts of Gross Sexual Imposition, one count of Pandering Sexually

Oriented Matter Involving a Minor, and one count of Pandering Obscenity Involving a

Minor. Following a guilty plea, Smiddy was sentenced to the maximum and consecutive

sentences on these charges, for a total of 26 years in prison.

       {¶ 2} Smiddy contends that the trial court erred by failing to comply with the

requirements of Crim.R. 11.     We conclude that the trial court sufficiently explained

Smiddy’s rights during the plea colloquy. Accordingly, the judgment of the trial court will

be affirmed.



                             I. Facts and Course of Proceedings

       {¶ 3} On August 4, 2014, Smiddy was indicted on two counts of Rape, with a

specification that the alleged victim was under the age of 10 at the time of the offenses;

four counts of Gross Sexual Imposition involving a child under the age of 12 or 13; five

counts of Pandering Sexually Oriented Matter Involving a Minor; and five counts of

Pandering Obscenity Involving a Minor. Smiddy initially pled not guilty, but on October

23, 2014, appeared in court and pled guilty to two counts of Gross Sexual Imposition, one

count of Pandering Sexually Oriented Matter Involving a Minor, and one count of

Pandering Obscenity Involving a Minor.

       {¶ 4} In exchange for the guilty plea, the State agreed to dismiss all the remaining

charges and specifications, and also agreed to a presentence investigation.            The

offenses of Gross Sexual Imposition involved a child who was less than ten years old at
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the time of the offenses. Regarding the other offenses, the State indicated that Smiddy

had, in a continuous course of conduct from May 2006 to June 2014, created, reproduced,

or published obscene material that had a minor as one of its participants or portrayed the

observers. Finally, Smiddy had downloaded a photograph of a minor participating in

sexual activity.

       {¶ 5} At the plea hearing, the trial court ascertained that Smiddy had signed the

written plea agreement, had gone over the plea agreement with his attorney, and

understood everything in the plea agreement. The written plea agreement, which was

filed on October 23, 2014, contained a section entitled “Waiver of Rights.” This section

included the following paragraph:

              I understand by pleading guilty I give up my right to a jury trial or court

       trial, where I could confront and have my attorney question witnesses

       against me, and where I could use the power of the Court to call witnesses

       to testify for me. I know at trial I could not have to take the witness stand

       and could not be forced to testify against myself and that no one could

       comment if I chose not to testify. I understand I waive my right to have the

       prosecutor prove my guilt beyond a reasonable doubt on every element of

       each charge.

Doc. #10, p. 3.

       {¶ 6} During the plea hearing, the court engaged in a plea colloquy with Smiddy

that included the following discussion:

              THE COURT: Do you understand that you have the right to a trial

       in this case?
                                                                                           -4-


              THE DEFENDANT: Yes, Your Honor. I do.

              THE COURT: At that trial you would have the right to require the

       State to prove beyond a reasonable doubt each and every element of the

       offenses to which you are pleading guilty and you could only be convicted

       upon a unanimous verdict of a jury.

Transcript of Proceedings, October 23, 2014 Plea Hearing, p.11.

       {¶ 7} The trial court accepted Smiddy’s plea and found him guilty of the offenses.

After a presentence investigation, the court sentenced Smiddy, as noted above, to a total

of 26 years in prison. Smiddy timely appealed from his conviction and sentence.



                     II. Did the Trial Court Fail to Comply with Crim.R. 11?

       {¶ 8} Smiddy’s sole assignment of error states that:

              The Trial Court Erred by Accepting Mr. Smiddy’s Guilty Pleas Prior

       to Complying With the Procedural Requirements of Rule 11 of the Ohio

       Rules of Criminal Procedure.

       {¶ 9} Under this assignment of error, Smiddy contends that the trial court failed to

comply with the requirements of Crim.R. 11 because the court did not tell him, prior to

accepting his plea, that he was waiving his constitutional right to a jury trial. Instead, the

court only informed Smiddy that he was waiving his right to a trial.

       {¶ 10} Crim.R. 11(C)(2) provides that trial courts may not accept guilty or no

contest pleas in criminal cases without personally addressing a defendant and doing a

number of things, including: “(c) Informing the defendant and determining that the

defendant understands that by the plea the defendant is waiving the rights to jury trial * *
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*.”

       {¶ 11} “The rights enunciated in Crim.R. 11(C)(2)(c) are constitutional in nature.”

State v. Perkins, 2d Dist. Montgomery No. 22956, 2010-Ohio-2640, ¶ 42, citing State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 21. In Veney, the

Supreme Court of Ohio “reaffirmed that strict, or literal, compliance with Crim.R.

11(C)(2)(c) is required when advising the defendant of the constitutional rights he is

waiving by pleading guilty or no contest.” State v. Barker, 129 Ohio St.3d 472, 2011-

Ohio-4130, 953 N.E.2d 826, ¶ 15, citing Veney at ¶ 18. As a result, “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 * * *.” Veney at ¶ 31.

       {¶ 12} In Barker, however, the Supreme Court of Ohio also stressed that “an

alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to

other portions of the record, including the written plea, in determining whether the

defendant was fully informed of the right in question.” Barker at ¶ 25.

       {¶ 13} The issue in the case before us is whether the trial court failed to comply

with Crim.R. 11 requirements by omitting the word “jury” when advising Smiddy of his

right to a jury trial. We previously addressed this particular point in State v. Courtney, 2d

Dist. Clark No. 2013-CA-73, 2014-Ohio-1659, where the trial court had also advised the

defendant that “she had ‘the right to a trial,’ and explained that: ‘At that trial you would

have the right to require the State to prove beyond a reasonable doubt each and every

element of the offense to which you are pleading guilty, and you could only be convicted

upon the unanimous verdict of a jury.’ ” (Emphasis sic.) Id. at ¶ 9. We concluded that

the trial court sufficiently explained the defendant’s right to a jury trial because “an
                                                                                            -6-


average person of [her] age and intelligence would know that a trial requiring a

‘unanimous verdict of a jury’ to convict necessitates a jury trial * * *.” Id.

       {¶ 14} The same considerations apply here, in nearly identical circumstances.

Smiddy was 51 years old at the time of the plea, and there is no indication in the record

that he lacked the intelligence to understand the trial court’s explanation.

       {¶ 15} We further stressed in Courtney that even if we had found the court’s

explanation ambiguous (which we did not), the written plea specifically referenced the

right to a jury trial, and the defendant, therefore, was “fully informed of her right to a jury

trial.” Id. at ¶ 10. This is consistent with the decision in Barker. In the present case,

the discussion during Smiddy’s plea colloquy was not ambiguous, but any ambiguity

would have been resolved by the written plea agreement that Smiddy signed. Barker,

129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, at ¶ 25.

       {¶ 16} Accordingly, Smiddy’s sole assignment of error is overruled.



                                          III. Conclusion

       {¶ 17} Smiddy’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.




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



FROELICH, P.J. and DONOVAN, J., concur.
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Copies mailed to:

Ryan A. Saunders
Brandon Charles McClain
Hon. Douglas M. Rastatter
