[Cite as State v. Gensert, 2016-Ohio-1163.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2015-T-0084
        - vs -                                  :

NICKOLAS ALLEN GENSERT,                         :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR
00385.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

J. Gerald Ingram, 7330 Market Street, Youngstown, OH            44512 (For Defendant-
Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Nickolas Allen Gensert, appeals his conviction for

Rape in the Trumbull County Court of Common Pleas. The issues before this court are

whether a guilty plea is constitutionally valid where the trial court failed to advise the

defendant that he was ineligible for probation/community control sanctions, question the

defendant as to whether he both understood and waived each of his constitutional rights

individually, advise the defendant that the court could proceed immediately to
sentencing, and where the defendant suggested his actual innocence during his

allocution at sentencing. For the following reasons, we affirm the decision of the court

below.

         {¶2}   On May 22, 2015, the Trumbull County Grand Jury returned an

Indictment, charging Gensert with Rape, in violation of R.C. 2907.02(A)(1)(b) and (B),

and R.C. 2971.03(B)(1)(b) (“the victim was less than ten years of age”) and (c) (“the

offender purposely compels the victim to submit by force or threat of force”).

         {¶3}   On June 1, 2015, Gensert was arraigned and entered a plea of not guilty.

         {¶4}   On June 18, 2015, a change of plea hearing was held. Gensert pled guilty

to Rape, in violation of R.C. 2907.02(A)(1)(b) and (B), and the factual finding that “the

victim was less than ten years of age.” R.C. 2971.03(B)(1)(b). On the State’s motion,

the trial court entered a nolle prosequi as to the factual finding that “the offender

purposely compel[led] the victim to submit by force or threat of force.”             R.C.

2971.03(B)(1)(c).

         {¶5}   The trial court proceeded immediately to Gensert’s sentencing. The court

ordered Gensert to serve the jointly recommended sentence of life with a mandatory

minimum term of fifteen years, and classified him as a Tier III Sex Offender.

         {¶6}   On July 29, 2015, Gensert filed a Notice of Appeal. On appeal, Gensert

raises the following assignment of error:

         {¶7}   “[1.] The trial court erred when it accepted Appellant’s guilty plea which

was not knowingly, voluntarily and intelligently made.”

         {¶8}   “When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points renders




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enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

In order for a plea to be knowingly, intelligently, and voluntarily entered, a defendant

must be “informed in a reasonable manner at the time of entering his guilty plea of his

rights to a trial by jury and to confront his accusers, and his privilege against self-

incrimination, and his right of compulsory process for obtaining witnesses in his behalf.”

State v. Ballard, 66 Ohio St.2d 473, 478, 423 N.E.2d 115 (1981), interpreting Boykin v.

Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      {¶9}   In 1973, Criminal Rule 11 was adopted to ensure that certain information

necessary for entering a knowing, intelligent, and voluntary plea would be conveyed to a

defendant. Id. at 479-480; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 7 (Crim.R. 11 provides “detailed instruction to trial courts on the

procedure to follow when accepting pleas”); State v. Stone, 43 Ohio St.2d 163, 167-168,

331 N.E.2d 411 (1975).

      {¶10} Criminal Rule 11(C) provides, in relevant part, as follows:

             (2) In felony cases the court may refuse to accept a plea of guilty or

             a plea of no contest, and shall not accept a plea of guilty or no

             contest 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




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                     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.

       {¶11} “Before accepting a guilty or no-contest plea, the court must make the

determinations and give the warnings required by Crim.R. 11(C)(2)(a) and (b) and notify

the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c).” Veney at ¶ 13.

       {¶12} A trial court’s compliance with Criminal Rule 11(C) is reviewed under two

different standards, one applied to the “nonconstitutional” portions of the Rule,

subsections (a) and (b), and another applied to the “constitutional” portion, subsection

(c). Id.

       {¶13} The standard applied to the nonconstitutional portions of Rule 11 is

substantial compliance. Id. at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86, 93, 364




                                             4
N.E.2d 1163 (1977).      “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and

the rights he is waiving. * * * Furthermore, a defendant who challenges his guilty plea

on the basis that it was not knowingly, intelligently, and voluntarily made must show a

prejudicial effect. * * * The test is whether the plea would have otherwise been made.”

(Citation omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

       {¶14} For the constitutional rights outlined in subsection (c), “strict, or literal,

compliance” with the Rule is required. (Citations omitted.) Veney, 2008-Ohio-5200, at

¶ 18, and at syllabus (“[w]hen a trial court fails to strictly comply with this duty, the

defendant’s plea is invalid”).

       {¶15} The failure to comply literally with the provisions of subsection (c) does not

automatically invalidate a guilty plea. Ballard, 66 Ohio St.2d at 479, 423 N.E.2d 115.

“Failure to use the exact language contained in Crim. R. 11(C), in informing a criminal

defendant of his constitutional right to a trial and the constitutional rights related to such

trial, including the right to trial by jury, is not grounds for vacating a plea as long as the

record shows that the trial court explained these rights in a manner reasonably

intelligible to that defendant.” Id. at paragraph two of the syllabus. The Ohio Supreme

Court has reaffirmed that “a trial court can still convey the requisite information on

constitutional rights to the defendant even when the court does not provide a word-for-

word recitation of the criminal rule, so long as the trial court actually explains the rights

to the defendant.” Veney at ¶ 27.

       {¶16} Gensert contends, in the first instance, that the trial court failed to obtain a

knowing and voluntary waiver of his constitutional rights: “The trial court set forth the




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constitutional rights held by Appellant, but, with the exception of his right to a trial by

jury, no advice was given to Appellant that by entering his guilty plea, he was waiving

those rights.” Appellant’s brief at 7.

       {¶17} During the plea colloquy, the trial court addressed Gensert as follows with

respect to his constitutional rights: “Before I can accept your plea today, Mr. Gensert, I

need to ask you some questions, make sure that you understand and that you are

willing to waive certain rights that you have under the United States and Ohio

Constitutions.”

       {¶18} The trial court proceeded to explain the right to trial by jury and to inquire

of Gensert: “By pleading here today you’re waiving your right to a trial by jury, do you

understand that?”

       {¶19} The trial court next explained the State’s burden of proof, the right to

confront his accusers, the right to compulsory process, and that he could not be forced

to testify against himself. At the close of its explanation of each of these rights, the

court asked Gensert if he understood the right being explained, but not if he understood

that he was waiving the right by pleading guilty. In other words, the court introduced its

explanation of Gensert’s constitutional rights by advising him that he would be waiving

certain rights by pleading guilty. With exception of the right to a jury trial, the court did

not ask Gensert about waiver with respect to individual rights, only whether he

understood the court’s explanation of the right. Gensert maintains this falls short of

strict or literal compliance with the Rule. We disagree.

       {¶20} The Rule does not require the trial court to obtain an express waiver for

each individual right being waived.       Rather, the Rule states that the court must




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“determin[e] that the defendant understands that by the plea [he] is waiving” certain

rights and the law requires that the court explain the rights being waived “in a manner

reasonably intelligible to [the] defendant.” Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115,

at paragraph two of the syllabus. Here, the court prefaced its explanation of the rights

by advising Gensert that these are the rights he must be willing to waive in order for the

court to accept his plea. The court’s manner of explaining the rights being waived was

reasonably intelligible to Gensert. With respect to the right to a jury trial, the court did

expressly inquire whether Gensert understood he was waiving the right. No reasonable

defendant could fail to grasp that, in this context, the recitation of rights was for the

purpose of ensuring that he understood the rights being waived.

       {¶21} Any possible confusion on Gensert’s part with respect to the rights being

waived is nullified by the written plea agreement, which provides, in relevant part:

              The Court and my Attorney have advised me that by entering this

       Plea of Guilty I am waiving (giving up) the following Constitutional Rights:

              My right to a jury trial or trial to the Court;

              My right to confront and cross-examine the witnesses against me;

              My right to have compulsory process for obtaining witnesses in my

              favor;

              My right to require the State to prove my guilt beyond a reasonable

              doubt at a trial;

              My right not to be compelled to testify against myself; and

              My right to appeal upon conviction after trial.




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              I specifically acknowledge that I understand all of the above, and I

       expressly waive all of those rights, including my right to trial by jury, as to

       each and every count.

The Ohio Supreme Court has held “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.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 25.

       {¶22} Gensert next argues that the “trial court * * * failed to advise Appellant that

he wasn’t eligible for probation or community control.” Appellant’s brief at 7. Gensert

relies on the case of State v. Byrd, 178 Ohio App.3d 646, 2008-Ohio-5515, 899 N.E.2d

1033 (2nd Dist.), for the proposition that “when a defendant on whom a mandatory

prison sentence is imposed enters a plea of guilty or no contest, before accepting the

plea the court must determine the defendant’s understanding that the mandatory

sentence renders the defendant ineligible for alternative sentences of probation or

community control sanctions.” Id. at ¶ 30.

       {¶23} “Where the circumstances indicate that the defendant knew he was

ineligible for probation and was not prejudiced by the trial court’s failure to comply with

Crim.R. 11(C)(2)(a), the trial court’s acceptance of the defendant’s guilty plea to the

nonprobationable crime of rape without personally advising the defendant that he was

not eligible for probation constitutes substantial compliance with Crim. R. 11.” Nero, 56

Ohio St.3d 106, 564 N.E.2d 474, at syllabus.

       {¶24} In the present case, the circumstances demonstrate that Gensert knew

that he was ineligible for probation or community control sanctions by virtue of the fact




                                             8
that the trial court advised him that prison was mandatory. At the plea hearing, the

court, addressing Gensert directly, stated: “prison is presumed necessary and it is

mandatory because it is a Felony of the First Degree with a specific factual finding

because of the age of the female victim.”            The court further stated: “the potential

penalties you’re looking at is life without possibility of parole, or a mandatory minimum

term of 15 years and a maximum term of life imprisonment.” Gensert acknowledged

that he understood prison was necessary and mandatory, both at the plea hearing and

in his written plea agreement.1 The acknowledgment of a mandatory prison sentence is

inconsistent with any reasonable belief in the possibility of probation or community

control sanctions. State v. Brown, 11th Dist. Geauga No. 2003-G-2504, 2004-Ohio-

1843, ¶ 12 (“a trial court substantially complies with the requirement of Crim.R.

11(C)(2)(a) when the court informs a defendant that a mandatory prison sentence will

be imposed and the defendant subjectively understands that his sentence must include

prison time”); State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 15

(“defendant who understands that actual incarceration is mandatory necessarily

understands that he is ineligible for probation or community control sanctions and,

therefore, cannot demonstrate prejudice as a result of the court’s failure to comply

literally with the rule”).

        {¶25} Gensert further argues that he “was never advised by the trial court that,

upon acceptance of his guilty plea, the court could proceed to sentence him

immediately.” Appellant’s brief at 8.




1. Gensert’s written plea states: “I have been informed by the Court, and understand, that I am not
eligible for probation or community control sanctions.”


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       {¶26} Although the trial court did fail to advise Gensert that it could proceed with

judgment and sentence upon acceptance of the plea, under the totality of the

circumstances, Gensert was either aware that the court could proceed to sentence him

or has failed to show a prejudicial effect from the court doing so.

       {¶27} In the written plea agreement, Gensert acknowledged that “the Court,

upon acceptance of a plea of guilty, can sentence me immediately after accepting my

plea and upon completion of my sentencing hearing.” In the plea agreement, Gensert

also waived a PSI (pre-sentence investigation report) and agreed to a jointly

recommended prison sentence of a “mandatory minimum term of fifteen (15) years and

a maximum term of Life Imprisonment.” At the change of plea hearing, Gensert again

waived the PSI and reaffirmed the jointly recommended sentence. The court proceeded

to impose the jointly recommended sentence without objection.

       {¶28} This court has previously reached the same conclusion under similar

circumstances. State v. Porterfield, 11th Dist. Trumbull No. 2002-T-0045, 2004-Ohio-

520, ¶ 46 (the fact that “during the plea hearing appellant specifically waived his right to

a pre-sentencing investigation report, raised no objections to the trial court’s immediate

sentence, and failed to make any request of the trial court to delay sentencing until a

future date * * * establishes appellant’s subjective understanding that the trial court

would move directly to judgment and sentencing after the acceptance of his guilty plea”)

and ¶ 47 (“appellant has failed to show any resulting prejudice” where he did not

“present any evidence * * * which would demonstrate that had he not understood the

manner in which the trial court would enter judgment and sentence”), rev’d on other

grounds, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690.




                                            10
        {¶29} Finally, Gensert claims his statement to the court before sentencing

negates “any allegation that Appellant had an understanding of the consequences of his

plea or the waiver of his rights.” Appellant’s brief at 8. Gensert addressed the court as

follows:

                This is more of a family affair but – for the most part. Her family

                had some issues back [sic], which she explained to me. And so far,

                from what I can notice is, my family doesn’t get along with hers. So

                I’m assuming this is just an allegation, if anything.                 She has a

                history of trying to make my family look bad. I just want to point it

                out.

        {¶30} Contrary to Gensert’s position, this statement has little or no relevance to

his understanding of the consequences of his plea or the waiver of his rights. At most, it

suggests equivocation with respect to the factual basis for the plea.2 It does not raise

doubts regarding the voluntary, knowing, and intelligent nature of the plea. State v.

Siders, 78 Ohio App.3d 699, 701, 605 N.E.2d 1283 (11th Dist.1992), quoting Menna v.

New York, 423 U.S. 61, 62 fn. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (“a counseled

plea of guilty is an admission of factual guilt so reliable that, where voluntary and

intelligent, it quite validly removes the issue of factual guilt from the case”). It has been

oft held that “a defendant’s protestations of innocence * * * are insufficient grounds for

vacating a plea that was voluntarily, knowingly, and intelligently entered,” and “when a

defendant makes claims of innocence after a guilty plea has been accepted, a trial court


2. With respect to the factual basis for the plea, the State proffered the following: “[T]he State would have
proven * * *, specifically on or about May 11th, 2015 in Trumbull County, Ohio, this defendant, Nickolas
Gensert, did perform anilingus on a three-year old child, date of birth, August 9th, 2011. The State would
have offered testimony from the child, assuming she was competent, the statement she made to medical
personnel, the child’s mother, law enforcement and the defendant’s own statements.”


                                                    11
has no duty to inquire into a defendant’s reasons for pleading guilty.” State v. Reeves,

8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, ¶ 13 (citations omitted) (cases cited);

State v. Wynn, 1st Dist. Nos. C-150051 and C-150052, 2015-Ohio-4646, ¶ 12 (“[a]fter a

defendant has entered a plea and the plea has been accepted pursuant to Crim.R. 11,

courts are not required to inquire into a defendant’s reasoning for pleading * * * despite

later assertions of innocence”).

       {¶31} Gensert’s sole assignment of error is without merit.

       {¶32} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, accepting Gensert’s plea of guilty to a single count of Rape, is affirmed.

Costs to be taxed against appellant.




TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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