[Cite as State v. Gheen, 2018-Ohio-4465.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                      AUSTIN LEE GHEEN,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 17 BE 0023


                                   Criminal Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                     Case No. 17 CR 60

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                            JUDGMENT:
                                       Reversed and Remanded


Atty. Joseph Vavra, Assistant Prosecutor, 147 A West Main Street, St. Clairsville, Ohio
43950, for Plaintiff-Appellee (No Brief Filed), and

Atty. Scott Essad, 721 Boardman-Poland Road, Suite 201, Youngstown, Ohio 44512,
for Defendant-Appellant.
                                     Dated:
                                November 2, 2018
                                                                                      –2–




Donofrio, J.

         {¶1}   Defendant-appellant, Austin Gheen, appeals from a Belmont County
Common Pleas Court judgment convicting him of burglary following his guilty plea.
         {¶2}   On March 2, 2017, a Belmont County Grand Jury indicted appellant on
one count of burglary, a second-degree felony in violation of R.C. 2911.12(A)(1), and
one count of theft, a third-degree felony in violation of R.C. 2913.02(A)(1). Appellant
initially entered a not guilty plea.
         {¶3}   Appellant subsequently entered into a plea agreement with plaintiff-
appellee, the State of Ohio. Pursuant to the terms of the plea agreement, the state
agreed to amend the indictment so that the burglary charge was reduced from a
second-degree felony to a third-degree felony in violation of R.C. 2911.12(A)(3). It also
agreed to dismiss the theft count. Appellant then entered a guilty plea to the amended
burglary charge.
         {¶4}   Next, the trial court held a sentencing hearing. It sentenced appellant to
36 months in prison for the burglary conviction. It also sentenced him to 12 months for
his violation of postrelease control in another case. The court ordered appellant to
serve the sentences consecutively for a total prison sentence of 48 months.
Additionally, the court ordered appellant to pay restitution to the victim.
         {¶5}   Appellant filed a timely notice of appeal on June 2, 2017.
         {¶6}   Appellant’s appointed counsel filed a no-merit brief and a request to
withdraw pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.
1970).
         {¶7}   On April 23, 2018, this court overruled Toney in State v. Cruz-Ramos, 7th
Dist. No. 17 MA 0077, 2018-Ohio-1583. We held that it is no longer an acceptable
practice in this court for counsel to file a Toney no-merit brief and motion to withdraw on
the ground that the appeal is frivolous. Id. at ¶ 16. But because appellant’s counsel
filed the Toney brief and motion to withdraw before we released Cruz-Ramos, we still
applied the Toney procedure. State v. Gheen, 7th Dist. No. 17 BE 0023, 2018-Ohio-
1924. Thus, pursuant to Toney, we conducted an independent review of the record.



Case No. 17 BE 0023
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       {¶8}   Upon our review, we found a potentially meritorious issue. Gheen, at ¶
12-13. Consequently, we granted counsel's motion to withdraw and appointed new
counsel. Id. at ¶ 14. New counsel briefed the case and it is now ready for our review.
Appellant raises two assignments of error.
       {¶9}   Appellant’s first assignment of error states:

              THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE
       AUSTIN GHEEN THAT HE WAS WAIVING THE RIGHT TO A JURY
       TRIAL UPON HIS GUILTY PLEA.

       {¶10} Appellant argues the trial court erred by failing to inform him that by
pleading guilty he was waiving his right to a jury trial. He asserts that while the court
informed him that he was waiving his right to a “speedy and public” trial, this is not the
advisement required by Crim.R. 11(C)(2). Because the trial court failed to advise him of
his right to a jury before it accepted his plea, appellant contends his plea was not
knowingly, voluntarily, and intelligently entered.
       {¶11} Appellant entered a guilty plea in this case. When determining the validity
of a plea, this court must consider all of the relevant circumstances surrounding it.
State v. Trubee, 3d Dist. No. 9-0365, 2005-Ohio-552, ¶ 8, citing Brady v. United States,
397 U.S. 742, 90 S.Ct. 1463 (1970). Pursuant to Crim.R. 11(C)(2), the trial court must
follow a certain procedure for accepting guilty pleas in felony cases. Before the court
can accept a guilty plea to a felony charge, it must conduct a colloquy with the
defendant to determine that he understands the plea he is entering and the rights he is
voluntarily waiving.    Crim.R. 11(C)(2).     If the plea is not knowing, intelligent, and
voluntary, it has been obtained in violation of due process and is void.              State v.
Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama,
395 U.S. 238, 243, 89 S.Ct. 1709 (1969).
       {¶12} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of federal constitutional rights. Martinez, at ¶ 12. These rights include the right
against self-incrimination, the right to a jury trial, the right to confront one's accusers, the
right to compel witnesses to testify by compulsory process, and the right to proof of guilt
beyond a reasonable doubt. Crim.R. 11(C)(2)(c).



Case No. 17 BE 0023
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       {¶13} In this case, the trial court advised appellant of four of the constitutional
rights he was waiving by entering a guilty plea. Before accepting appellant's plea, the
trial court informed appellant that by pleading guilty he was waiving his right to have the
state prove his guilt beyond a reasonable doubt, his right to subpoena witnesses, his
right to cross examine witnesses, and his right to remain silent at trial. (Plea Tr. 6).
Appellant stated that he understood that he was giving up these rights by pleading
guilty. (Plea Tr. 6).
       {¶14} But the trial court failed to inform appellant that by pleading guilty he was
waiving his right to a jury trial. The trial court only advised appellant that he was waiving
his right to a “speedy and public trial.” (Plea Tr. 6).
       {¶15} In a very similar case from this court, the trial court advised Thomas that
he was waiving his right to a “speedy and public” trial as opposed to advising him that
he was waiving his right to a “jury” trial. State v. Thomas, 7th Dist. No. 17 BE 0014,
2018-Ohio-2815, ¶ 12. We observed that in some cases, “when a reviewing court is
faced with this situation, the court can conclude there was a valid waiver by finding the
reference to a jury was orally made when explaining some other aspect of the plea.” Id.
at ¶ 13. But in Thomas’s case, there was no reference to a jury in any part of the plea
transcript. Id. at ¶ 15. Therefore, we concluded that the trial court failed to advise
Thomas of his constitutional right to a jury trial by informing him of the right to a speedy
and public trial but not referring anywhere to the right to a jury trial. Id. at ¶ 16. We also
noted that while the right to a jury trial was included in the written plea agreement, this
did not satisfy Crim.R. 11(C)(2) where the court did not mention it at the plea hearing.
Id. at ¶ 15.
       {¶16} In this case, as was the case in Thomas, there is no reference to a jury in
any other part of the plea transcript. In fact, the word “jury” is never spoken.
       {¶17} And while the plea agreement does include the advisement that by
pleading guilty appellant was giving up the right to a jury trial, including this advisement
in the written plea agreement alone does not satisfy the mandate of Crim.R. 11(C)(2).
Id. at ¶ 15.
       {¶18} Because the trial court failed to advise appellant at the change of plea
hearing that he was waiving his right to a jury trial by pleading guilty, the court failed to



Case No. 17 BE 0023
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strictly comply with Crim.R. 11(C)(2)(c). Therefore, appellant’s plea was not entered
knowingly, voluntarily, and intelligently.
       {¶19} Accordingly, appellant’s first assignment of error has merit and is
sustained.
       {¶20} Appellant’s second assignment of error states:

              AT     APPELLANT’S        SENTENCING,        THE        TRIAL   COURT
       COMPELLED AUSTIN GHEEN TO INCRIMINATE HIMSELF FOR AN
       ALLEGED CRIME THAT HE HAD YET TO EVEN BE CHARGED WITH.
       THAT WAS A VIOLATION OF HIS FIFTH AMENDMENT RIGHT
       AGAINST SELF-INCRIMINATION.

       {¶21} Here appellant argues the trial court coerced him into confessing to
another crime, thus violating his right against self-incrimination.
       {¶22} Pursuant to the Fifth Amendment to the United States Constitution no
person “shall be compelled in any criminal case to be a witness against himself.” The
Fifth Amendment applies to the states through the Fourteenth Amendment. State v.
Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 11, citing Malloy v.
Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
       {¶23} At appellant’s sentencing hearing, when the court asked appellant if he
had anything to say on his behalf, appellant explained to the court that since 2014,
when he began using opiates, he had been committing crimes to feed his addiction.
(Sentencing Tr. 2-3). This prompted the court to ask if appellant had a burglary charge
pending in Ohio County, West Virginia. (Sentencing Tr. 3). The prosecutor responded
that there was a charge pending. (Sentencing Tr. 3). Appellant’s counsel then stated
that appellant had never received a summons on the West Virginia charge. (Sentencing
Tr. 3). The court then stated: “Thank you, sir. Of course, the defendant knows whether
it’s true or not.” (Sentencing Tr. 3). Without any further prompting, appellant answered
“It’s true, Your Honor.” (Sentencing Tr. 3). This was the extent of the inquiry with which
appellant now takes issue.
       {¶24} The trial court did not coerce appellant into confessing to another crime.
Taken in context, it is possible that appellant was agreeing with the prosecutor that he



Case No. 17 BE 0023
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had received a summons on a burglary charge in West Virginia. It is equally possible
that appellant was agreeing with his counsel that he had not received a summons.
Either way, appellant did not confess to the actual burglary as he now contends. He
was either admitting that he had received a summons or he was denying the same.
Regardless, the trial court did not violate appellant’s right against self-incrimination.
       {¶25} Accordingly, appellant’s second assignment of error is without merit and is
overruled.
       {¶26} For the reasons stated above, the trial court’s judgment is hereby
reversed.    Appellant’s plea is vacated and the matter is remanded for further
proceedings.




Waite, J., concurs

Robb, P. J., concurs




Case No. 17 BE 0023
[Cite as State v. Gheen, 2018-Ohio-4465.]




        For the reasons stated in the Opinion rendered herein, the first assignment of
error has merit and is sustained. The second assignment of error is without merit and is
overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is reversed. Appellant’s plea is
vacated and we hereby remand this matter to the trial court for further proceedings
according to law and consistent with this Court’s Opinion. Costs to be taxed against the
Appellee.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




guilty plea to one count of burglary; strict compliance with Crim.R. 11(C)(2) required;
advisement of “speedy and public” trial is not advisement of “jury” trial; trial court did not
coerce appellant into confessing to another crime




                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
