[Cite as State v. Baker, 2019-Ohio-1808.]



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

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                  TERRY ALLEN BAKER, JR.,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 18 BE 0021


                                  Criminal Appeal from the
                   County Court, Northern Division, of Belmont County, Ohio
                                   Case No. 17CRB00748

                                        BEFORE:
                 Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.


                                               JUDGMENT:
                                                 Affirmed.


 Atty. Dan Fry, Belmont County Prosecuting Attorney and Atty. Kevin Flanagan, Chief
 Criminal Assistant Prosecuting Attorney, Courthouse Annex No. 1, 147-A West Main
 Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee, No Brief Filed.

 Atty. John D. Falgiani, Jr., P.O. Box 8533, Warren, Ohio 44484 and
 Atty. Wesley A. Johnston, P.O. Box 6041, Youngstown, Ohio 44501, for Defendant-
 Appellant.

                                            Dated: May 7, 2019
                                                                                        –2–


 WAITE, P.J.

       {¶1}   Appellant Terry Allen Baker, Jr. appeals a decision in the Belmont County

Court, Northern Division on March 14, 2018, denying his motion to vacate a guilty plea.

In this matter, Appellant argues that the trial court failed to conduct a meaningful dialogue

regarding his constitutional rights at his plea hearing and that he did not have an

opportunity to speak to his appointed counsel before the hearing. For the following

reasons, Appellant’s arguments are meritless and the judgment of the trial court is

affirmed. We note that this appeal was consolidated with Appellant’s appeal in case

number 18 BE 0018 which is separately addressed, for ease of understanding.

                              Factual and Procedural History

       {¶2}   Some background information is necessary in this case. On March 30,

2012, Appellant was convicted on one count of conveyance of certain prohibited items

onto the property of state facilities, a third degree felony. Appellant pleaded guilty in

Belmont County Common Pleas Court as part of an agreement to enter drug court.

Pursuant to the agreement, Appellant’s sentence was held in abeyance pending his

satisfactory completion of all requirements of the drug court.

       {¶3}   Several times between March 30, 2013 and August 1, 2014, Appellant was

found to be noncompliant during his drug court reviews. In the seven instances of

noncompliance, the common pleas court utilized various sanctions in an attempt to keep

Appellant in the drug court program. Finally, on September 11, 2014, the state filed a

motion to terminate Appellant’s drug court agreement after the court again found him

noncompliant for the eighth time.




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      {¶4}   When the common pleas court issued a warrant for Appellant’s arrest he

absconded, and the court granted the state’s motion to terminate Appellant from drug

court in absentia. On April 30, 2015, Appellant was located and arrested pursuant to the

warrant. On May 21, 2015, the common pleas court sentenced Appellant to thirty months

of incarceration, with credit for fifty-seven days served and imposed a three-year

postrelease control term.

      {¶5}   On November 19, 2015, Appellant filed a motion for judicial release. The

common pleas court denied that motion, but on February 23, 2016, Appellant filed a

second motion for judicial release, which was granted on May 3, 2016. Appellant’s

sentence was amended to three years of community control and 100 hours of community

service and the judgment entry specified that the balance of Appellant’s original sentence

would be reimposed if he violated the terms of his community control sanction.

      {¶6}   After serving a portion of his community control sanction in the Eastern Ohio

Correction Center, Appellant was released to serve the remainder of his term under the

supervision of the Ohio Adult Parole Authority.      However, on November 17, 2017,

Appellant was charged with one count of theft, a misdemeanor of the first degree in

violation of R.C. 2913.02(A)(1). On January 31, 2018, Appellant pleaded guilty in the

Belmont County Court, Northern Division. Although the record is limited, it appears that

the charges arose from an incident at WalMart. While Appellant was also charged with

unrelated domestic violence and child restraint charges during the same time period,

these were later dismissed by the state. It is from this guilty plea that Appellant now

appeals.




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       {¶7}   Following this plea, on February 22, 2018, the state filed a motion to revoke

Appellant’s community control sanction with the common pleas court. The state alleged

that Appellant violated the terms of his probation due to the instant theft conviction.

       {¶8}   On March 12, 2018, Appellant filed a motion to withdraw his guilty plea to

the theft in the Belmont County Court. After a hearing, the trial court denied Appellant’s

motion.

       {¶9}   On March 19, 2018, the common pleas court determined that Appellant had

violated his probation due to his theft conviction and sentenced Appellant to the balance

of his original prison sentence for the conveyance conviction, thirty months of

incarceration with credit for 563 days served.

       {¶10} On March 28, 2018, Appellant filed a pro se motion to appeal the trial court’s

denial of his motion to withdraw his plea. Two days later, appointed counsel filed a timely

notice of appeal. On April 4, 2018, the trial court granted Appellant’s motion to stay

execution of his sentence.      We again note that, while appeal in this matter was

consolidated with the appeal of the revocation of his community control, that appeal is

addressed separately. The state failed to file a brief in either case.

                               ASSIGNMENT OF ERROR


       THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

       WITHDRAW GUILTY PLEA.


       {¶11} Appellant argues that the trial court in this matter failed to conduct a

meaningful dialogue with him as to his constitutional rights when entering his guilty plea.

Further, Appellant argues that he was not given an opportunity to speak to his appointed




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                                                                                        –5–


counsel before entering the plea. Because of the circumstances surrounding his case

and his pending matters in common pleas court, he argues that he felt coerced into

pleading guilty.

       {¶12} “Crim.R. 11 governs the advisements that must be made at plea hearing

prior to accepting a no contest, guilty or not guilty plea.” State v. Durkin, 7th Dist.

Mahoning No. 13 MA 36, 2014-Ohio-2247, ¶ 10. Crim.R. 11(D) governs misdemeanor

cases that involve “serious offenses” whereas Crim.R. 11(E) governs misdemeanor cases

that involve “petty offenses.” Any misdemeanor with a penalty that includes confinement

for more than six months constitutes a “serious offense.” Crim.R. 2(C). A “petty offense”

is any misdemeanor that does not rise to a serious offense. Crim.R. 2(D).

       {¶13} Appellant pleaded guilty to theft, a misdemeanor of the first degree. The

maximum penalty for a misdemeanor of the first degree is one hundred eighty days (six

months), in jail. R.C. 2929.24(A)(1). As the maximum penalty is no more than six months,

theft is a petty offense and the plea is governed by Crim.R. 11(E). Crim.R. 11(E) provides

that a trial court “shall not accept such pleas without first informing the defendant of the

effect of the plea of guilty, no contest, and not guilty.”

       {¶14} When informing a defendant of the effect of a plea, a trial court must comply

with Crim.R. 11(B). Crim.R. 11(B) provides that:


       (1) The plea of guilty is a complete admission of the defendant's guilt.


       (2) The plea of no contest is not an admission of defendant's guilt, but is

       an admission of the truth of the facts alleged in the indictment, information,




Case No. 18 BE 0021
                                                                                         –6–


       or complaint, and the plea or admission shall not be used against the

       defendant in any subsequent civil or criminal proceeding.


       (3) When a plea of guilty or no contest is accepted pursuant to this rule, the

       court, except as provided in divisions (C)(3) and (4) of this rule, shall

       proceed with sentencing under Crim.R. 32.


       {¶15} In other words, before the trial court may accept a guilty plea to a

misdemeanor for a petty offense, the court must inform the defendant that a guilty plea

constitutes a complete admission of guilt. State v. Giovanni, 7th Dist. Mahoning No. 07

MA 60, 2008-Ohio-2924, ¶ 45, citing State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-

6093, 877 N.E.2d 677, ¶ 25. A trial court must substantially comply with this requirement.

State v. Ramey, 7th Dist. Mahoning No. 13 MA 64, 2014-Ohio-2345, ¶ 12, citing State v.

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

       {¶16} At the plea hearing, the trial court stated: “[d]o you understand that when

you enter a guilty plea, you are making a complete admission of your guilt, and that you’re

giving up all of your Constitutional rights?” (1/31/18 Plea Hrg., pp. 8-9.) As the trial court

clearly informed Appellant that his guilty plea constituted a complete admission of guilt,

the court complied with Crim.R. 11(E).

       {¶17} Appellant’s claim that he was not given an opportunity to speak to his

appointed counsel is also unsupported by the record. At an initial hearing held December

20, 2017, the trial court gave Appellant his appointed counsel’s contact information and

instructed him to initiate contact. Later, Appellant conceded that he did not attempt to call

his appointed counsel until the day before his plea hearing. At his plea hearing, Appellant




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was given the option of pleading guilty or continuing trial in order for him to have a full

discussion with his counsel. The following conversation occurred at the plea hearing:


       [Counsel]: Okay. If you don’t want to do this, we’ll have to continue it so

       you can talk to me.


       So, I’m not forcing you to do anything, but you can resolve it with a plea.

       He’s recommending probation, community service, there’s no restitution.


       Or I continue it, and you can talk to me at a later date, but before the next

       Court hearing.


       I’m not forcing you to do that.


       [Appellant]: I don’t mind doing that. I just want to ask –


       [Counsel]: Do you want to resolve it today?


       [Appellant]: - yeah.


(1/31/18 Plea Hrg. Tr., pp. 7-8.)

       {¶18} The record shows that Appellant’s lack of communication with his appointed

counsel was due to his own action. First, he failed to timely initiate contact. He also

declined the opportunity to continue the case in order to discuss the matter more fully with

his counsel. While his guilty plea in county court clearly resulted in revocation of his

community control in common pleas court, Appellant’s lack of diligence and his voluntary

agreement to plead guilty to theft instead of asking for the matter to be continued caused




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                                                                                       –8–


this result.   This record reveals absolutely no error on the part of the trial court.

Accordingly, Appellant’s sole assignment of error is without merit and is overruled.

                                        Conclusion

       {¶19} Appellant argues that the trial court failed to conduct a meaningful dialogue

of his constitutional rights and he did not have an opportunity to speak to his appointed

counsel before his plea hearing. For the reasons provided, Appellant’s arguments are

without merit and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

D’Apolito, J., concurs.




Case No. 18 BE 0021
[Cite as State v. Baker, 2019-Ohio-1808.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 County Court, Northern Division, of Belmont County, Ohio, is affirmed. Costs waived.

         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.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
