[Cite as State v. Smith, 2016-Ohio-3361.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 26746
                                                  :
 v.                                               :   T.C. NO. 13CR1999
                                                  :
 GARRETT D. SMITH                                 :   (Criminal appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                    Rendered on the __10th__ day of ____June____, 2016.

                                             ...........

ANN M. GRABER, Atty, Reg. No. 0091731, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton,
Ohio 45426
      Attorney for Defendant-Appellant

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

DONOVAN, P.J.

        {¶ 1} Defendant-appellant Garrett D. Smith appeals from his conviction and

sentence for one count of rape (force), in violation of R.C. 2907.02(A)(2), a felony of the

first degree, and one count of gross sexual imposition (victim less than thirteen years of

age) (GSI), in violation of R.C. 2907.05(A)(4), a felony of the third degree. Smith filed a
                                                                                         -2-


timely notice of appeal with this Court on June 30, 2015.

        {¶ 2} On September 18, 2013, Smith was indicted for one count of rape (victim

less than ten years of age), in violation of R.C. 2907.02(A)(1)(b), a felony of the first

degree. At his arraignment on March 4, 2014, Smith stood mute, and the trial court

entered a plea of not guilty on his behalf. On March 18, 2014, Smith filed a waiver of

speedy trial time.

        {¶ 3} On April 14, 2014, Smith filed a motion requesting a competency evaluation.

On May 21, 2014, the parties stipulated to the contents of the contents of the psychiatric

report prepared by Forensic Psychiatry for Western Ohio. The trial court found Smith

competent to stand trial.

        {¶ 4} Smith also filed a motion to suppress in which he argued that any statements

he made to police were the fruits of an illegal arrest, involuntary, and made without an

effective waiver of his constitutional rights. A hearing was held on said motion on August

5 and August 26, 2014. On August 26, 2014, the trial court overruled Smith’s motion to

suppress in an oral pronouncement but failed to make any findings of facts, only

conclusions of law. The trial court journalized its denial of Smith’s motion to suppress

on September 4, 2014. Thereafter, Smith’s case was transferred to another judge.

        {¶ 5} At a hearing on March 31, 2015, the newly assigned trial judge made the

requisite findings of fact after examining the exhibits and reviewing the video recording of

the hearing on the motion to suppress.       Smith objected and requested that a new

suppression hearing be held. The trial court overruled Smith’s objection and made its

findings of fact, overruling his motion to suppress in an entry journalized on March 31,

2015.
                                                                                         -3-


       {¶ 6} On June 2, 2015, Smith pled guilty by way of bill of information to one count

of rape (force), and one count of GSI.         Pursuant to the parties’ negotiated plea

agreement, the State dismissed the indictment and agreed to a sentencing range of

twelve to fifteen years in prison. The trial court accepted Smith’s plea and entered guilty

findings on both counts. The trial court also ordered the adult probation department to

prepare a pre-sentence investigation report (PSI).

       {¶ 7} On June 24, 2015, the trial court sentenced Smith to a mandatory eleven

year term for the rape and four years for the GSI. The trial court ordered that the

sentences be served consecutively for an aggregate prison term of fifteen years.

       {¶ 8} It is from this judgment that Smith now appeals.

       {¶ 9} Smith’s first assignment of error is as follows:

       {¶ 10} “MR.      SMITH    DID    NOT       KNOWINGLY,     INTELLIGENTLY        AND

VOLUNTARILY WAIVE HIS RIGHTS WHEN HE ENTERED A PLEA BECAUSE HE

LACKED THE CAPACITY TO ENTER A PLEA.”

       {¶ 11} In his first assignment, Smith contends that his guilty pleas were not valid

“because his diminished capacity made it impossible for him to knowingly, intelligently

and voluntarily enter a guilty plea.” Specifically, Smith argues that he suffered from a

diagnosis of anxiety and depression which rendered him unable to comprehend the

nature and effect of the guilty pleas that he entered. Smith notes that his mental issues

were significant enough that his trial counsel filed a motion for a competency evaluation.

       {¶ 12} An appellate court must determine whether the record affirmatively

demonstrates     that    a   defendant's   plea    was    made   knowingly,   intelligently,

and voluntarily. State v. Russell, 2d Dist. Montgomery No. 25132, 2012–Ohio–6051, ¶ 7.
                                                                                          -4-


“If a defendant's guilty plea is not knowing and voluntary, it has been obtained in violation

of due process and is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705,

2012–Ohio–199, ¶ 13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23

L.Ed.2d 274 (1969). In order for a plea to be given knowingly and voluntarily, the trial

court must follow the mandates of Crim.R. 11(C). Brown at ¶ 13.

       {¶ 13} Crim.R. 11(C)(2) requires the court to address the defendant personally

and (a) determine that the defendant is making the plea voluntarily, with an understanding

of the nature of the charges and the maximum penalty, and, if applicable, that the

defendant is not eligible for probation or for the imposition of community control sanctions;

(b) inform the defendant of and determine that the defendant understands the effect of

the plea of guilty and that the court, upon acceptance of the plea, may proceed with

judgment and sentencing; and (c) inform the defendant and determine that he

understands that, by entering the plea, the defendant is waiving the rights to a jury trial,

to confront witnesses against him, to have compulsory process for obtaining witnesses,

and to require the State to prove his guilt beyond a reasonable doubt at a trial at which

he cannot be compelled to testify against himself. State v. Brown, 2d Dist. Montgomery

No. 21896, 2007–Ohio–6675, ¶ 3.

       {¶ 14} The Supreme Court of Ohio has urged trial courts to literally comply

with Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462,

¶ 29. However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights,

the trial court need only substantially comply with those requirements. E.g., State v.

Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means

that under the totality of the circumstances the defendant subjectively understands the
                                                                                          -5-

implications of his plea and the rights he is waiving.” Id. In contrast, the trial court must

strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal

constitutional rights. Clark at ¶ 31.

       {¶ 15} At the plea hearing, the following exchange occurred between the trial court

and Smith:

       Trial Court: Okay, And just I need to make sure that you answer out loud,

       all right. Sir, are you a U.S. citizen?

       Smith: Yes, ma’am.

       Q: How old are you?

       A: Twenty-six.

       Q: How far did you go in school?

       A: College.

       Q: Were you able to read and understand the waivers of indictment, waiver

       of one-day service, and the two plea forms that [defense counsel] went over

       with you?

       A: Yes, ma’am.

       Q: Do you have any questions about those documents?

       A: No.

       Q: Sir, are you currently under the influence of any drug, alcohol, or

       medication?

       A: No.

       Q: Do you have any mental or physical difficulty that would make it hard for

       you to understand what we’re doing today?
                                                                                    -6-


A: No.

***

Q: *** Sir, there’s certain rights that you’re waiving by entering pleas to these

two counts by bill of information today. First of all, you have the right to

have these two charges presented to the grand jury.

         It’s my understanding that you were served with bills of information

outside of the courtroom. You also have the right to have those bills of

information for twenty-four hours before you act on them or do anything

including entering any pleas. However, by entering your pleas today do

you understand that you’re waiving your right to have these two charges

indicted and waiving one-day service.

A: Yes.

Q: Sir, if you want to waive your right to have these two charges indicted

and waive one-day service, if you’ll sign there at the bottom.           It’s my

understanding – I should have also mentioned that it’s my understanding

that upon a plea to these two counts the State will dismiss the indicted

counts, correct?

The State: Correct, Your Honor.

Trial Court: And I know that’s what [defense counsel] understood, but I

should have mentioned that and I apologize. Did you understand that, sir?

Smith: Yes, ma’am.

Q: *** And the record will reflect that the Defendant and his Counsel have

signed the waiver of indictment and waiver of one-day service. And the
                                                                                              -7-


       Court will find the Defendant has made a knowing, intelligent, and voluntary

       waiver of those rights.

       {¶ 16} At this point in the colloquy, we note that the trial court identified the offenses

to which Smith was pleading guilty, rape by force and GSI. The trial court also explained

the possible sentencing range for each offense, as well as the potential financial sanctions

that could be imposed. The trial court specifically informed Smith that he would be

subject to a mandatory prison term for the rape offense. The trial court informed Smith

that upon release from prison, he would be subject to a mandatory period of five years of

post-release control. The trial court also explained to Smith the effect of violating his

post-release control.      Lastly, the trial court informed Smith of the registration

requirements for the sexually oriented offenses to which he was pleading guilty. At no

point did Smith express any confusion regarding the information that the trial court was

explaining to him. In fact, whenever he was prompted, Smith stated that he understood

all of the information that the trial court was explaining to him regarding the effect of his

guilty pleas.

       {¶ 17} Thereafter, the following exchange occurred:

       Trial Court: All right. Sir, do you understand that the effect of your guilty

       pleas today are a complete admission of your guilt as to these charges by

       bill of information and you’re giving up your right to appeal any pretrial

       rulings?

       Smith: Yes.

       Q: Do you also understand that upon accepting your guilty pleas today the

       Court will proceed to a judgment of guilty and set sentencing for *** June 16
                                                                                   -8-


[2015]?

A: Yes.

Q: All right. And it’s my understanding the Defendant is withdrawing any

pending motions under the circumstances.

***

Defense Counsel: Yes, Your Honor.

Trial Court: Sir, you have Constitutional rights that you’re waiving as a result

of your plea today. You have the right to trial by jury of twelve persons.

At that trial, the prosecutor would be required to prove your guilt beyond a

reasonable doubt to all of those jurors. You have the right to confront in

open court the witnesses who are against you and to have your attorney

cross-examine those witnesses under oath. You have the right to have the

Court order witnesses who are in your favor to appear at your trial and testify

even if they don’t want to.

       Also, at your trial, you cannot be forced to take the witness stand and

testify against yourself. The fact you chose not to testify cannot be used

against you. Do you understand those rights?

Smith: Yes, ma’am.

Q: Do you understand that by entering your plea today you’re giving up

those rights?

A: Yes, ma’am.

***

Defense Counsel: The only other thing, Your Honor, is just for the record
                                                                                  -9-


and if I can, [Smith] has a history of suicide attempts and some mental

problems. Early on in this case I did file competency. He did come back

competent. That’s not an issue with me, at least, but just for the record, I

just want to make clear that [Smith] understands everything that you just

explained to him.

Trial Court: All right.

Smith: Yes, ma’am.

Trial Court: Do you have any difficulty understanding, Mr. Smith?

Smith: No, ma’am.

***

Trial Court: All right. And let me ask, [Defense Counsel], for the record.

Have you seen any negative change in your communication – I don’t know

how else to put it – with Mr. Smith that might cause you to believe currently

that there’s any issue with his competency?

Defense Counsel: No, Your Honor.          I’ve been on this case from the

beginning and I’ve not seen any problems. I know he’s emotional.

Trial Court: That’s understandable, completely understandable.

Defense Counsel: I don’t believe there’s any disability at this point.

***

Trial Court: Have you had an opportunity to talk with [Defense Counsel]

about these two charges including what the Prosecutor would have to prove

in order for you to be found guilty of these offenses as well as any additional

motions you could file and any defenses there may be to these charges?
                                                                                          -10-


       Smith: Yes.

       Q: Do you have any questions for [Defense Counsel] or me?

       A: No.

       Q: Have you had enough time to consider this, not only the plea offer, but

       your plea today?

       A: Yes.

       Q: All right.       And are you satisfied with [Defense Counsel]’s

       representation?

       A: Very.

       Q: *** Are you entering your plea today voluntarily meaning is that what you

       want to do today?

       A: Yes.

       {¶ 18} The trial court informed Smith of the facts underlying the charges against

him, the maximum sentence that he faced, and the constitutional rights that he waived by

foregoing a trial. Prior to accepting the plea, the trial court asked Smith whether he

understood what he was doing, whether he was acting of his own free will and not as the

result of any promises aside from those incorporated in the plea agreement, and whether

he wanted the court to accept the plea. Smith responded to all of these questions in the

affirmative.    Smith acknowledged that he had discussed his case with his attorney,

including the elements of the offenses with which he was charged and his potential

defenses. Smith stated that his attorney had gone over the plea forms with him and that

he was satisfied with his attorney's representation. Significantly, the trial court also

informed Smith that by pleading guilty, he waived the right to appeal the court's disposition
                                                                                           -11-


with respect to any of his pre-trial motions, including his motions to suppress.

       {¶ 19} Finally, the trial court did its best to insure that Smith did not have any

emotional or mental issues that were hindering his ability to understand the nature of the

plea proceedings. The trial court made inquiries of both Smith and defense counsel

regarding whether any competency issues existed that would render his plea less than

knowing, intelligent, and voluntary. Both Smith and his counsel responded that no such

issues existed. We also note that Smith had been found competent to stand trial earlier

in the proceedings after his counsel filed a motion for a competency evaluation.

Accordingly, the record demonstrates that Smith was competent to enter guilty pleas to

the offenses for which he was charged. Upon review, we conclude that the record

reflects that Smith knowingly, intelligently, and voluntarily entered into the plea

agreement.

       {¶ 20} Smith’s first assignment of error is overruled.

       {¶ 21} Smith’s second assignment of error is as follows:

       {¶ 22} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED MR.

SMITH’S RIGHTS WHEN IT ENTERED ITS FINDINGS OF FACT FOLLOWING THE

MOTION TO SUPPRESS HEARING WITHOUT HAVING PRESIDED OVER THE

HEARING.”

       {¶ 23} In his second and final assignment, Smith argues that the trial court erred

when it entered findings of fact following the motion to suppress hearing without having

presided over the hearing. Smith also asserts that if we find that his guilty pleas were

knowingly, intelligently, and voluntarily made, then the trial court’s decision overruling his

motion to suppress constituted plain error.
                                                                                        -12-


       {¶ 24} We have held that a guilty plea waives a claim that the trial court errs when

it denies a motion to suppress evidence. State v. Brookins, 2d Dist. Montgomery No.

20325, 2004-Ohio-6676; Huber Heights v. Duty, 27 Ohio App.3d 244, 500 N.E.2d 339 (2d

Dist.1985). A plea of guilty waives all appealable errors that may have occurred during

the trial, unless such errors precluded Defendant from knowingly and voluntarily entering

his guilty plea. State v. Frost, 2d Dist. Clark No. 06CA0083, 2008-Ohio-1869, ¶ 8; State

v. Montgomery, 2d Dist. Montgomery No. 21508, 2007-Ohio-439, ¶ 19. Smith makes no

such claim in this case. Therefore, Smith's guilty pleas waive the error he now assigns on

appeal as it relates to the findings of fact entered by the second trial judge.

       {¶ 25} Smith’s second assignment of error is overruled.

       {¶ 26} Both of Smith’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                        ..........

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Ann M. Graber
Christopher A. Deal
Hon. Mary Katherine Huffman
