[Cite as State v. Smith, 2020-Ohio-3074.]




                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




 STATE OF OHIO,                                   :

        Appellee,                                 :     CASE NOS. CA2019-10-113
                                                                  CA2019-11-121
                                                  :
     - vs -                                                     OPINION
                                                  :              5/26/2020

 JIMMY RAY SMITH, JR.,                            :

        Appellant.                                :




      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 19CR35314


David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Johnna M. Shia, P.O. Box 145, Springboro, Ohio 45066, for appellant



        S. POWELL, J.

        {¶ 1} Appellant, Jimmy Ray Smith, Jr., appeals his conviction in the Warren County

Court of Common Pleas after he pled guilty to one count of rape, two counts of gross sexual

imposition, two counts of illegal use of a minor in nudity oriented material or performance,

one count of endangering children, and one count pandering sexual oriented material

involving a minor. For the reasons outlined below, we affirm.
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       {¶ 2} On April 8, 2019, the Warren County Grand Jury returned an indictment

charging Smith with the seven above-named offenses. Five of those charges arose after

Smith raped an eight-year-old family member, caused her to masturbate him, and took lewd

photographs of her naked body exposing her genitalia and breast area. Smith then shared

those photographs with an undercover police officer over the Internet. The remaining two

charges arose after Smith took lewd photographs of another four-year-old family member

and forced her to touch and masturbate his penis. Although initially entering a not guilty

plea, Smith ultimately pled guilty to each of the seven offenses as alleged in the indictment.

Upon finding Smith's plea was knowingly, intelligently, and voluntarily entered, the trial court

accepted Smith's guilty plea, ordered the completion of a presentence-investigative report

("PSI"), and scheduled the matter for sentencing.

       {¶ 3} On October 10, 2019, the trial court held the previously scheduled sentencing

hearing. During this hearing, and without any objection from Smith, the state set forth the

underlying facts for each of the seven offenses to which Smith had pled guilty. Although in

slightly less detail, these facts were the same facts as provided to the trial court in the PSI.

Noting that it had considered the PSI, which included Smith's statements to police admitting

to the charged conduct, the trial court merged the two offenses relating to the four-year-old

victim as allied offenses of similar import. The trial court then sentenced Smith to a total

aggregate term of 25 years to life in prison, classified Smith as a Tier III sex offender, and

notified Smith that he would be subject to a mandatory five-year postrelease control term

should he ever be released from prison. Smith now appeals his conviction, raising three

assignments of error for review.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF CRIM.R. 11


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RENDERING SMITH'S PLEA INVOLUNTARY.

       {¶ 6} In his first assignment of error, Smith argues his guilty plea was involuntarily

entered since the trial court failed to properly advise him of the nature of the charges and

the maximum penalties involved for each offense prior to him entering his guilty plea as

required by Crim.R. 11(C)(2)(a). We disagree.

       {¶ 7} When a defendant enters a guilty plea in a felony criminal case, the plea must

be knowingly, intelligently, and voluntarily made. State v. Mosley, 12th Dist. Warren No.

CA2014-12-142, 2015-Ohio-3108, ¶ 6.           "Failure on any of those points 'renders

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

Ohio Constitution.'" State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶ 18

(12th Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). To ensure that a

defendant's guilty plea is knowingly, intelligently and voluntarily made, the trial court must

engage the defendant in a plea colloquy pursuant to Crim.R. 11(C). State v. Reynolds, 12th

Dist. Madison No. CA2018-02-005, 2018-Ohio-4942, ¶ 9. That is to say, Crim.R. 11(C)

"ensures an adequate record on review by requiring the trial court to personally inform the

defendant of his rights and the consequences of his plea and determine if the plea is

understandingly and voluntarily made." State v. Stone, 43 Ohio St.2d 163, 168 (1975).

       {¶ 8} To that end, pursuant to Crim.R. 11(C)(2), the trial court may not accept a

defendant's guilty plea without first addressing the defendant personally and:

              (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 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.

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               (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.

       {¶ 9} As recently explained by the Ohio Supreme Court, "[w]hen a criminal

defendant seeks to have his conviction reversed on appeal, the traditional rule is that he

must establish that an error occurred in the trial-court proceedings and that he was

prejudiced by that error." State v. Dangler, Slip Opinion No. 2020-Ohio-2765, ¶ 13. There

are two limited exceptions, however, where no showing of prejudice is required in the

criminal-plea context. Id. at ¶ 14.

       {¶ 10} The first exception to the prejudice requirement occurs "[w]hen a trial court

fails to explain the constitutional rights that a defendant waives by pleading guilty or no

contest[.]" Id. When this occurs, "we presume that the plea was entered involuntarily and

unknowingly, and no showing of prejudice is required." Id., citing State v. Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, ¶ 31. The constitutional rights that the trial court must explain

to a defendant are set forth in Crim.R. 11(C)(2)(c): the right to a jury trial, the right to confront

one's accusers, the privilege against self-incrimination, the right to compulsory process to

obtain witnesses, and the right to require the state to prove guilt beyond a reasonable doubt.

Id., citing Clark at ¶ 19. "But when a trial court fails to fully cover other 'nonconstitutional'

aspects of the plea colloquy, a defendant must affirmatively show prejudice to invalidate a

plea." Id., citing Clark at ¶ 17.

       {¶ 11} The second exception to the prejudice requirement occurs as a result of "a

trial court's complete failure to comply with a portion of Crim.R. 11(C)[.]" Id. at ¶ 15, citing

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 22. This, too, "eliminates the

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defendant's burden to show prejudice." Dangler, 2020-Ohio-2765 at ¶ 15. For example, in

Sarkozy, the Ohio Supreme Court "held that the trial court had completely failed to comply

with Crim.R. 11(C)(2)(a)'s requirement that it explain the maximum penalty when the court

made no mention of postrelease control in the plea colloquy, despite the fact the defendant

was subject to a mandatory five years of postrelease control." Id.

       {¶ 12} "Aside from these two exceptions, the traditional rule continues to apply: a

defendant is not entitled to have his plea vacated unless he demonstrates he was

prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C)." Id.

at ¶ 16, citing State v. Nero, 56 Ohio St.3d 106, 108 (1990). "The test for prejudice is

'whether the plea would have otherwise been made.'" Id. citing Nero.

       {¶ 13} Noting that its caselaw has "muddled" the analysis that should apply when

reviewing a defendant's plea of guilty or no contest "by suggesting different tiers of

compliance with the rule," the Ohio Supreme Court has set forth what it believes "should be

a fairly straightforward inquiry." Id. at ¶ 17. Therefore, rather than reviewing a defendant's

plea of guilty or no contest to determine whether the trial court substantially complied,

partially complied, or completely failed to comply with the requirements set forth in Crim.R.

11(C), "the questions to be answered are simply: (1) has the trial court complied with the

relevant provision of the rule? (2) if the court has not complied fully with the rule, is the

purported failure of a type that excuses a defendant from the burden of demonstrating

prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?"

Id.

       {¶ 14} Answering the first question in the affirmative, the record firmly establishes

that the trial court complied with the relevant provision of the rule, Crim.R. 11(C)(2)(a), by

properly advising Smith of the nature of the charges and the maximum penalties involved


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for each offense prior to him entering his guilty plea. To begin Smith's plea hearing, the trial

court advised Smith that "this is an important matter, sir." The trial court then asked Smith

if he had enough time to speak with his attorney about the ramifications he faced by entering

a guilty plea. Smith responded, "Yes, sir." The trial court then notified Smith that he was

"facing a life sentence; do you understand that?" Smith again responded, "Yes, sir." The

trial court then went through each of the seven offenses set forth in the indictment. This

included the trial court accurately describing each of the seven offenses, as well as the

maximum penalty for each of those seven offenses. The trial court then notified Smith that

he would be classified as a Tier III sex offender if he pled guilty.

       {¶ 15} At the trial court's request, the state then explained each of the registration

requirements Smith faced as a Tier III sex offender.           Upon being notified of these

requirements, the trial court addressed Smith and stated:

              THE COURT: All right. Did you hear everything that was said
              on that, Mr. Smith?

              Mr. SMITH: Yes, sir.

              THE COURT: Okay. Do you understand it?

              MR. SMITH: Yes.

              THE COURT: All right. You heard what I said about the
              potential penalties. Do you understand those, sir?

              MR. SMITH: Yes, sir.

       {¶ 16} The trial court then advised Smith of the constitutional rights that he would be

waving upon entering a guilty plea. After verifying that Smith understood the constitutional

rights he would be waiving by pleading guilty, the trial court engaged Smith in the following

exchange:

              THE COURT: Do you feel that there's been any sense of
              pressure from anyone on you to waive your constitutional rights

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              and to plead guilty?

              MR. SMITH: No, sir.

              THE COURT: You're doing this of your own free will?

              MR. SMITH: Yes, sir.

              THE COURT: Have you had enough time to think about this,
              sir?

              MR. SMITH: I've had many months to think about this, sir.

       {¶ 17} Smith claims that his guilty plea was not voluntarily entered since neither the

trial court nor the state provided "sufficient information" concerning the nature of the charges

and the maximum penalty involved for each offense. Smith also claims that his plea was

not voluntary because the state did not provide a recitation of the facts underlying each

offense prior to him entering his plea. We disagree.

       {¶ 18} Contrary to Smith's claims, there is no requirement that the trial court "enter

into a discussion with a defendant or defendant's counsel to ensure there is an

understanding where no uncertainty is otherwise indicated." State v. Rivera, 12th Dist.

Butler No. CA2013-05-072, 2014-Ohio-3378, ¶ 28, citing State v. Dotson, 12th Dist. Preble

No. CA2007-11-025, 2008-Ohio-4965, ¶ 10. Such is the case here.

       {¶ 19} There is also no requirement that the trial court determine whether a factual

basis exists to support a guilty plea prior to the accused entering his or her plea. State v.

Isbell, 12th Dist. Butler No. CA2003-06-152, 2004-Ohio-2300, ¶ 16. This is because,

pursuant to Crim.R. 11(B)(1), a guilty plea is a complete admission of the defendant's guilt.

State v. McClellan, 12th Dist. Preble No. CA2018-10-014, 2019-Ohio-5034, ¶ 9. Therefore,

by entering a guilty plea, Smith admitted that he was guilty of the substantive crimes

charged in the indictment, State v. Fuller, 12th Dist. Butler No. CA2008-09-240, 2009-Ohio-

5068, ¶ 105, and "waived the right to require the state to prove his guilt beyond a reasonable

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doubt." Isbell. Accordingly, because the trial court properly advised Smith of the nature of

the charges and the maximum penalties involved prior to him entering his guilty plea as

required by Crim.R. 11(C)(2)(a), Smith's first assignment of error lacks merit and is

overruled.

       {¶ 20} Assignment of Error No. 2:

       {¶ 21} SMITH'S SENTENCE IS CONTRARY TO LAW BECAUSE THE COURT

FAILED TO MERGE ALLIED OFFENSES.

       {¶ 22} In his second assignment of error, Smith argues the trial court erred by

considering "additional evidence" when making its allied offenses determination at

sentencing. In support of this claim, Smith takes issue with the fact that "[i]t was not until

the issue of merger was raised at the time of sentencing that the [state] recited the specific

conduct that related to each alleged victim for each charged offense." This is because,

according to Smith, it was improper for the trial court to rely on "facts [he] did not plead to

when it decided not to merge certain offenses." We disagree.

       {¶ 23} Despite Smith's claims, considering the underlying facts recited by the state

were the same facts detailed in the PSI, we find it was proper for the state to set forth the

salient facts necessary to assist the trial court in making its allied offenses determination.

It was also proper for the trial court to then consider those facts as part of its allied offenses

analysis.    This is because it is well established that the trial court may consider the

information contained in the PSI when deciding whether offenses are allied offenses of

similar import. State v. Knight, 12th Dist. Butler No. CA2016-02-028, 2016-Ohio-7991, ¶

13 (trial court can "look to the information contained in the record," including the PSI, when

making its allied offenses determination), citing State v. Cisco, 5th Dist. Delaware No. 13

CAA 04 0026, 2013-Ohio-5412, ¶ 30 ("the trial court does not err in relying upon the [PSI]


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in deciding whether to merge offenses"). That is exactly what the trial court did here.

Therefore, because the trial court did not err by considering "additional evidence" when

making its allied offenses determination at sentencing, Smith's second assignment of error

lacks merit and is overruled.

       {¶ 24} Assignment of Error No. 3:

       {¶ 25} SMITH'S SENTENCE IS CONTRARY TO LAW BECAUSE THE FACTS TO

WHICH SMITH PLEAD FAILS TO SUPPORT CONSECUTIVE SENTENCES.

       {¶ 26} In his third assignment of error, Smith argues the trial court erred by

considering "additional evidence" when deciding whether to impose consecutive sentences.

Similar to his argument in his second assignment of error, Smith argues that it was improper

for the trial court to rely on the state's "recitation of the specific conduct related to each

alleged victim constituting the offenses at the time of sentencing." We disagree.

       {¶ 27} Contrary to Smith's claims, not only is the state permitted under R.C.

2929.19(A) to "present information relevant to the imposition of sentence" at sentencing, as

stated previously, the underlying facts recited by the state at sentencing were the same

facts detailed in the PSI. R.C. 2929.19(B)(1) "explicitly enables" the trial court to consider

the information contained in the PSI before imposing its sentence. State v. Milner, 6th Dist.

Erie No. E-14-113, 2015-Ohio-2446, ¶ 31. The trial court is in fact required to consider that

information before issuing its sentencing decision. State v. Mavrakis, 9th Dist. Summit No.

27457, 2015-Ohio-4902, ¶ 29 ("[t]he court is required to consider information presented by

the prosecutor, the offender, and the presentence investigation report, which contains the

defendant's criminal history").   That is, again, exactly what the trial court did here.

Therefore, because the trial court did not err by considering "additional evidence" when

deciding whether to impose consecutive sentences, Smith's third assignment of error lacks


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merit and is overruled.

      {¶ 28} Judgment affirmed.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




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