[Cite as State v. Blair, 2019-Ohio-4308.]


                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY


STATE OF OHIO,
                                                           CASE NO. 11-19-01
         PLAINTIFF-APPELLEE,

    v.

TRISTEN A. BLAIR,                                          OPINION

         DEFENDANT-APPELLANT.


STATE OF OHIO,
                                                           CASE NO. 11-19-02
         PLAINTIFF-APPELLEE,

    v.

TRISTEN A. BLAIR,                                          OPINION

         DEFENDANT-APPELLANT.


                Appeals from Paulding County Common Pleas Court
                    Trial Court Nos. CR-17-592 and CR-18-681

                                      Judgments Reversed

                            Date of Decision: October 21, 2019



APPEARANCES:

         Howard A. Elliot for Appellant

         Joseph R. Burkard for Appellee
Case Nos. 11-19-01 and 11-19-02


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Tristen A. Blair (“Blair”) brings these appeals

from judgments of the Court of Common Pleas of Paulding County. On appeal

Blair challenges the voluntariness of the pleas, the sufficiency of the evidence, and

the effectiveness of counsel. For the reasons set forth below, the judgments are

reversed.

                      Background in Case Number 11-19-01

       {¶2} On September 15, 2017, the Paulding County Grand Jury indicted Blair

on one count of Burglary in violation of R.C. 2911.12(A)(1), a felony of the second

degree and one count of Theft in violation of R.C. 2913.02(A)(1), a felony of the

fourth degree. Doc. 2. The matter was assigned case number CR-17-592. Id. Blair

entered pleas of not guilty to both counts. A change of plea hearing was held on

December 20, 2018. Doc. 35. At that time, the State agreed to dismiss the theft

charge and in exchange Blair entered a plea of guilty to the burglary charge. Id.

The trial court accepted the guilty plea and entered a judgment of guilty on January

4, 2019. Id. On January 14, 2019, the trial court held a sentencing hearing. Doc.

36. The trial court sentenced Blair to a seven year prison term and ordered that it

be served consecutive to a thirty-six month prison term in case number CR-18-681

for an aggregate prison term of ten years. Id. Blair then filed a timely notice of

appeal. Doc. 40.



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Case Nos. 11-19-01 and 11-19-02


                            Background in Case Number 11-19-02

         {¶3} Blair was originally charged with one count of murder in trial court case

number CR-17-618.1 A trial was held from December 18-20, 2018. Before the case

was sent to the jury, the State and Blair reached a plea agreement that resolved this

case. In exchange for dismissing this case, Blair agreed to be charged with one

count of reckless homicide by bill of information in a new case number CR-18-681

and to plead no contest to this charge. The agreement also indicated that the State

would dismiss another case and included the agreement in case number CR-17-592

discussed above. The trial court accepted the no contest plea in case number CR-

18-681 and found Blair guilty of reckless homicide in violation of R.C.

2903.041(A), a felony of the third degree. Doc. 3. The sentencing hearing was held

on January 14, 2019. Doc. 4. The trial court ordered Blair to serve a prison term of

thirty-six months and ordered that it be run consecutive to the seven year prison

term imposed in case number CR-17-592 for an aggregate prison term of 10 years.

Id. Blair then filed a timely notice of appeal. Doc. 6.

         {¶4} The two cases were consolidated for the purpose of appeal. On appeal,

Blair raises the following assignments of error.

                                    First Assignment of Error

         The pleas of guilty and the plea of no contest of [Blair] as to the
         burglary and reckless homicide charges of the two cases were not
         received with a knowing and intelligent [voluntary] waiver of

1
 Although the transcripts from the trial were filed in this case, the remainder of record in CR-17-618 is not
available for our review.

                                                    -3-
Case Nos. 11-19-01 and 11-19-02


      [Blair’s] rights in that the trial court in taking the pleas failed to
      comply with Criminal Rule 11(C)(2)(c) as the trial court failed to
      explain to [Blair] his right to confront witnesses against him,
      accordingly the please must be vacated and the matter remanded
      to the trial court for further proceedings.

                           Second Assignment of Error

      The trial court abused its discretion and committed reversible
      error by over objection, allowing into evidence a description of
      the law enforcement officer’s recollection [of] an interview with
      [Blair] in lieu of recording the same, all in violation of Evidence
      Rule 1002, the so called best evidence rule.

                           Third Assignment of Error

      The conviction herein of [reckless homicide] by way of the no
      contest plea of [Blair] must be reversed in that insufficient
      evidence supports the necessary element of the offense of
      recklessness as opposed to negligence or an accident.

                           Fourth Assignment of Error

      The trial counsel for [Blair] rendered [ineffective assistance] of
      counsel in advising [Blair] to proceed with a no contest plea to the
      reckless homicide charge which may preclude effective challenge
      of the evidence concerning the mental capability the [State]
      presented to establish the charge.

                                   Plea Colloquy

      {¶5} In the first assignment of error, Blair alleges that the trial court failed to

comply with Criminal Rule 11(C)(2)(c) before accepting the pleas of guilty to

burglary and no contest to reckless homicide.

      (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:

                                          -4-
Case Nos. 11-19-01 and 11-19-02



       ***

       (c) Informing the defendant and determining that the defendant
       understands that by the plea the defendant is waiving the right 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). “Despite the evolution of substantial compliance as a standard

for the court's nonconstitutional notifications and determinations required by

[Criminal Rule] 11(C)(2)(a) and (b), the same is not true for the constitutional rights

within [Criminal Rule] 11(C)(2)(c).” State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, ¶ 18, 897 N.E.2d 621. As to these rights, strict compliance with criminal

rule 11 is required. Id. In its conclusion regarding what happens when strict

compliance is not present, the Ohio Supreme Court held as follows.

       We hold 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. When a trial court omits any of the above rights, the failure is not subject

to a harmless error review and the plea is invalid. State v. Johnson, 10th Dist.

Franklin Nos. 15AP-1021, 15AP-1022, and 15AP-1023, 2016-Ohio-7945 (holding




                                          -5-
Case Nos. 11-19-01 and 11-19-02


that trial court’s failure to notify defendant of the right to confront witnesses

rendered the plea invalid).

       {¶6} In this case, the trial court notified Blair as follows regarding the

constitutional rights set forth in Criminal Rule 11(C)(2)(c).

       The Court: Do you understand you are entitled to a trial by jury
       on both of these cases? Did you understand by entering these
       pleas of guilty and no contest, you’re giving up your right to trial
       by jury? Do you understand that?

       The Defendant: Yes.

       The Court: You understand that we were in the midst of a jury
       trial on the other charge and that that jury trial will not continue?
       Do you understand?

       The Defendant: Yes.

       The Court: If I accept your pleas. Do understand [sic] that you
       are giving up your right to use the Court’s subpoena power to
       bring in witnesses to testify on your behalf?

       The Defendant: Yes.

       The Court: Do you understand you’re giving up your right in
       these two cases to require the State to prove your guilt beyond a
       reasonable doubt?

       The Defendant: Yes.

       The Court: Do you understand you cannot be forced or
       compelled to testify against yourself?

       The Defendant: Yes.

Tr. 377-78. At no time did the trial court notify Blair of his right to confront his

accusers as is required by Criminal Rule 11(C)(2)(c). The trial court’s failure to

                                         -6-
Case Nos. 11-19-01 and 11-19-02


strictly comply with this duty renders the pleas invalid. Thus, the first assignment

of error is sustained.

       {¶7} Having found that the pleas are invalid, the remaining assignments of

error are moot. This court will therefore not address them at this time. App.R.

12(A)(1)(c).

       {¶8} Having found error prejudicial to the appellant in the particulars

assigned and argued, the judgments of the Court of Common Pleas of Paulding

County are reversed and the matters are remanded to the trial court for further

proceedings.

                                                              Judgments Reversed
                                                             and Cause Remanded
ZIMMERMAN, P.J. and SHAW, J., concur.

/hls




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