[Cite as State v. Steinmetz, 2014-Ohio-2235.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                                BUTLER COUNTY




STATE OF OHIO,                                        :
                                                            CASE NO. CA2013-10-185
        Plaintiff-Appellee,                           :
                                                                 OPINION
                                                      :           5/27/2014
    - vs -
                                                      :

MICHAEL STEINMETZ,                                    :

        Defendant-Appellant.                          :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-05-0810



Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Michael Steinmetz, appeals from his conviction and

sentence he received in the Butler County Court of Common Pleas following his guilty plea to

one count of breaking and entering. For the reasons outlined below, we reverse and remand

for further proceedings.

        {¶ 2} On the evening of April 30, 2013, Steinmetz was seen breaking into The Money

Store located at 1990 South Erie Highway, Hamilton, Butler County, Ohio. After police
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arrived, Steinmetz was arrested having been found hiding behind several 50-gallon drums.

Following his arrest, the Butler County grand jury indicted Steinmetz on one count of

breaking and entering in violation of R.C. 2911.13(A), a fifth-degree felony, as well as one

count of resisting arrest in violation of R.C. 2921.33(A), a second-degree misdemeanor.

       {¶ 3} On June 24, 2013, the trial court held a plea hearing wherein Steinmetz agreed

to plead guilty to the breaking and entering charge in exchange for the merger of the resisting

arrest charge. As part of this hearing, the state specifically stated on the record and in open

court that Steinmetz "now will enter a plea to Count 1, breaking and entering, felony of the

5th degree, Count 2 being merged." Steinmetz also signed a guilty plea form that explicitly

stated "[n]o promises have been made except as part of this plea agreement stated entirely

as follows: merge count two." Steinmetz never offered any objection at the plea hearing.

       {¶ 4} On September 9, 2013, the trial court held a sentencing hearing and sentenced

Steinmetz to 12 months in prison. Steinmetz now appeals from his conviction and sentence,

raising two assignments of error for review. For ease of discussion, Steinmetz's two

assignments of error will be addressed out of order.

       {¶ 5} Assignment of Error No. 2:

       {¶ 6} THE TRIAL COURT IN THE INSTANT CASE COMMITTED REVERSIBLE

ERROR WHEN IT FAILED TO ADVISE THE APPELLANT PRIOR TO ENTERING HIS PLEA

THAT UPON ACCEPTANCE OF THE PLEA, THE COURT COULD PROCEED WITH

JUDGMENT AND SENTENCE AS REQUIRED BY CRIMINAL RULE 11(C)2B AND

FURTHER COMMITTED ERROR WHEN IT FAILED TO ADVISE THE APPELLANT THAT

THE STATE WOULD HAVE TO PROVE THE DEFENDANTS GUILTY BEYOND

REASONABLE DOUBT AS REQUIRED BY CRIMINAL RULE 11(C)2C AND FURTHER

COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ADVISE THE APPELLANT OF

THE MAXIMUM PENALTY INVOLVED AS REQUIRED BY CRIMINAL RULE 11(C)2A.
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       {¶ 7} In his second assignment of error, Steinmetz argues his guilty plea was invalid

because the trial court failed to comply with the requirements of Crim.R. 11(C). Pursuant to

Crim.R. 11(C), before accepting a guilty 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)." State v. Irvin, 12th Dist. Warren No.

CA2013-03-027, 2013-Ohio-5209, ¶ 6, quoting State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, ¶ 7. "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 the defendant's constitutional

rights." State v. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, ¶ 9. When

a trial court fails to strictly comply with this duty, the defendant's plea is invalid. Id., citing

Veney at ¶ 31. However, regarding the non-constitutional notifications, a trial court must only

substantially comply with Crim.R. 11(C)(2)(a) and (b). Id.

       {¶ 8} The state concedes the trial court erred by failing to comply with the

requirements of Crim.R. 11(C), including the fact that the trial court did not strictly comply

with Crim.R. 11(C)(2)(c). After a thorough review of the record, we agree the trial court failed

to strictly comply with the requirements of Crim.R. 11(C)(2)(c), thereby rendering Steinmetz's

guilty plea invalid. We also find the trial court failed to substantially comply with the

requirements of Crim.R. 11(C)(2)(a) and (b). Therefore, Steinmetz's second assignment of

error is sustained and this matter is reversed and remanded for further proceedings. Upon

remand, the trial court must give the non-constitutional notifications required by Crim.R.

11(C)(2)(a) and (b) and notify Steinmetz of the constitutional rights listed in Crim.R.

11(C)(2)(c) should Steinmetz wish to accept the state's plea agreement and once again enter

a guilty plea.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} IF A NEGOTIATED PLEA IS NOT CLEARLY AND PLAINLY PLACED UPON
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THE RECORD AS REQUIRED BY OHIO CRIMINAL RULE OF PROCEDURE 11(F), A

REVERSAL OF THE CONVICTION AND SENTENCE IS WARRANTED.

       {¶ 11} In his first assignment of error, Steinmetz argues his conviction and sentence

must be reversed because the terms of his plea agreement were not stated on the record

and in open court as required by Crim.R. 11(F).

       {¶ 12} Pursuant to Crim.R. 11(F), in felony cases, when a defendant offers a

negotiated plea of guilty, such as the case here, "the underlying agreement upon which the

plea is based shall be stated on the record in open court." In other words, under Crim.R.

11(F), the parties are required to state the plea agreement on the record at the time the

defendant enters his guilty plea. State v. Darnell, 4th Dist. Gallia No. 02CA15, 2003-Ohio-

2775, ¶ 8. "Prudence also dictates that a plea agreement be in writing." State v. Billingsley,

133 Ohio St.3d 277, 2012-Ohio-4307, ¶ 25. However, as this court recently stated, "[i]t is not

necessary for the trial court to recite certain magical words in order to comply with Crim.R. 11

so long as it substantially complied with the rule." State v. Chasteen, 12th Dist. Butler No.

CA2013-07-129, 2014-Ohio-1129, ¶ 10.

       {¶ 13} As noted by the Ohio Supreme Court, "a contemporaneous objection is

necessary to preserve error for appellate review of a violation of Crim.R. 11(F)." State v.

Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 89.           Without such contemporaneous

objection, a defendant "cannot prevail on his claim under Crim.R. 11(F) unless he shows

plain error." Id. at ¶ 90. Pursuant to Crim.R. 52(B), plain error exists where there is an

obvious deviation from a legal rule that affected the outcome of the proceeding. State v.

Blanda, 12th Dist. Butler No. CA2010-03-050, 2011-Ohio-411, ¶ 20, citing State v. Barnes,

94 Ohio St.3d 21, 27 (2002). Notice of plain error is to be taken with utmost caution and

should be invoked only to prevent a clear miscarriage of justice. State v. Blankenburg, 197

Ohio App.3d 201, 2012-Ohio-1289, ¶ 53 (12th Dist.).
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       {¶ 14} Steinmetz did not raise any objections during his sentencing hearing. Yet, even

if he had made the necessary objection, a review of the transcript of the plea hearing clearly

demonstrates the plea agreement was properly read into the record and in open court as

required by Crim.R. 11(F). Again, as part of Steinmetz's plea hearing, the state specifically

stated on the record and in open court that Steinmetz "now will enter a plea to Count 1,

breaking and entering, felony of the 5th degree, Count 2 being merged." Moreover, the guilty

plea form Steinmetz signed explicitly states "[n]o promises have been made except as part of

this plea agreement stated entirely as follows: merge count two." Therefore, as the record

clearly demonstrates the trial court complied with the requirements of Crim.R. 11(F).

       {¶ 15} However, even though we find the plea agreement was stated on the record as

required by Crim.R. 11(F), based on our resolution of Steinmetz's second assignment of

error, we find Steinmetz's first assignment of error moot. Again, as noted above, this matter

must be reversed so that the trial court may properly comply with the requirements of Crim.R.

11(C) should Steinmetz wish to accept the state's plea agreement and once again enter a

guilty plea.

       {¶ 16} Judgment reversed and remanded for further proceedings.


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




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