[Cite as State v. Blakley, 2020-Ohio-1141.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                        MIAMI COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2019-CA-13
                                                    :
 v.                                                 :   Trial Court Case No. 2018-CR-537
                                                    :
 JOSEPH L. BLAKLEY                                  :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                             Rendered on the 27th day of March, 2020.

                                               ...........

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, Appellate Division, Safety Building, 201 West Main Street,
Troy, Ohio 45373
       Attorney for Plaintiff-Appellee

JOHN A. FISCHER, Atty. Reg. No. 0068346, 70 Birch Alley, Suite 240, Dayton, Ohio
45440
      Attorney for Defendant-Appellant

                                              .............




DONOVAN, J.
                                                                                          -2-


       {¶ 1} Joseph L. Blakley appeals from the trial court’s judgment finding him guilty,

following a plea of no contest, of one count of aggravated vehicular assault, in violation

of R.C. 2903.08(A)(1)(a)/(B)(1)(a), a felony of the second degree (Count 1); one count of

operating a vehicle while under the influence (“OVI”), in violation of R.C.

4511.19(A)(1)(b)/(G)(1)(b), a misdemeanor of the first degree (Count 2); and one count

of driving under suspension, in violation of R.C. 4510.11(A), also a misdemeanor of the

first degree (Count 3). The offenses related to a car accident in which Blakley’s girlfriend,

Brooke, was gravely injured; two children and Blakley were also in the vehicle at the time

of the accident. The court imposed a mandatory sentence of seven years on the felony

offense and a term of six months for each misdemeanor offense, all to be served

concurrently. On Count 1, the court also suspended Blakley’s driver’s license for ten

years and assessed six points on his driver’s license. On Count 2, the court imposed a

mandatory fine of $525, ordered Blakley to undergo mandatory alcohol/drug treatment,

and assessed six points on his driver’s license. On Count 3, the court assessed two

points on Blakley’s driver’s license. The trial court also entered judgment against Blakley

in favor of Miami County, Ohio, in the amount of $1,132.50 for costs, pursuant to R.C.

2947.23.

       {¶ 2} The State concedes that the trial court erred in finding Blakley guilty on

Counts 2 and 3 without an explanation of the circumstances surrounding the offense prior

to accepting his plea, as required by R.C. 2937.07. The judgment of the trial court on

those two counts is reversed, and the matter is remanded for further proceedings on those

offenses. The judgment of the trial court is affirmed with respect to Count 1.

       {¶ 3} Blakley was indicted on September 26, 2018. Blakley entered his pleas of
                                                                                        -3-


no contest on June 11, 2019. At the plea hearing, after ascertaining that Blakley had

reviewed the indictment with defense counsel, the court read the indictment into the

record.    The court advised Blakley of his constitutional rights and ascertained his

understanding that a plea of no contest meant that he did not admit guilt, but he admitted

the truth of the facts in the indictment. The court stated, “After reviewing the Indictment

in court here today, there is a sufficient factual basis for your plea.”

       {¶ 4} The following exchange occurred at Blakley’s subsequent sentencing

hearing:

              JUDGE: What would you like to say on your client’s behalf?

              [DEFENSE COUNSEL]: Your Honor, we provided the court with a

       letter from the Defendant’s mother. Beyond that, the facts kind of speak

       for themselves.     Obviously, we know this was a situation where Joe

       [Blakley] obviously got in a tragic accident. He was with his girlfriend.

       There’s not much I can say at this point that would make any difference, but

       I think it’s important that Joe say something to the court.

              JUDGE: Thank you; Mr. Blakley, what would you like to say?

              MR. BLAKLEY:        To ask God for your forgiveness.         I would do

       anything to take it back. I would do life in prison to change places with her

       right now. I would do anything in this world to take it back. I promise you

       I did not want to take her away from her kids. I love her and I miss her. I

       think about her every day, and I’m so sorry, and I would do any - - I swear I

       would do anything. I would take my life, and I would trade places with her

       right now. I miss her so much.
                                                                               -4-


{¶ 5} The victim’s sister, Nicole Wax, read the following statement:

      * * * I just wanted everybody to be aware of the condition that she’s

in. * * * It’s like a never ending nightmare since the day of the wreck.

Life is not the same anymore for us. There is no joy in our lives. My

nephew and my son were also in the wreck. Brooke basically lost her life

that day. They took half of her skull out to relieve the pressure. During

the surgery she had several strokes. They shaved all her hair off. Now

she lays in a bed at a nursing home every day. She can’t do anything for

herself at all. When she opens her eyes, she stares at the ceiling lifeless

looking. She don’t respond to light in her eyes, so they say that she can’t

see. Her arms and her legs are curled up and locked from laying there for

so long not moving. She has a hole in her throat to breathe with a trach.

That’s the only way she can breathe. The nurse’s aides and my family and

I have to brush her teeth, wash her; change her diapers. She has to be

turned every two hours so she don’t get bed sores. The only thing she can

do is cry out, mumble and cough. It’s the most painful cry I’ve ever heard.

Her two children have no mother anymore. Her son also lost his father.

He has a lot of issues now. He thinks everyone is going to die or get hurt

and leave him. He just turned five and his name is [C.]. Him and my son,

[D.], wait, I already said that. I was at work and had no clue that any of

them were even going. I guess they were going swimming somewhere that

day, and they were both drinking, Joey and Brooke, I believe. [D.] has a

lot of trauma because of this, too. He is currently in The Brooke Hospital –
                                                                                   -5-


KMI – in Louisville, Kentucky. He has nightmares and flashbacks a lot.

[D.] and [C.] had glass chips in them when it happened. They were lucky

they weren’t hurt worse than what they were. I’m furious that Joey decided

to take off with all of them while he was drinking, and I just want to add that

I know it was Brooke’s fault, too, just as much, and not telling me everything.

I could have lost all of them that day. Everyone in my family is affected by

this. My little sister, [P.], is now a mother that she didn’t plan on being.

She has [C.], but no kids of her own. My mom has lost her mind over this;

she’s a nervous wreck every day.         My poor grandparents are beside

themselves. This family will never be the same, and for Joey, I know if he

could live that day over, he would, I do know that, but any person in the

whole world has consequences to their actions and have to pay for what

they did. We’re praying for Brooke every day, and we will pray for Joey to

get through this. Unfortunately, for Brooke, this will most likely be a life

sentence, and, I just, I’m sorry that the whole thing happened. It’s just as

much Brooke’s fault as it is his, and I just wanted to say that.

{¶ 6} The victim’s mother, Flo Wax, made the following statement:

       * * * I really don’t know what to say other than I know Joey wouldn’t

have wanted this, and neither did any of us, like my daughter said, and I

know he would have never wanted this to happen. I want to say that I’m

trying to forgive you, Joey, and I’m just trying to learn to deal with it, and I

don’t even know what the right thing to do here is today, but I’ll pray for you

and just keep praying for Brooke.
                                                                                     -6-


{¶ 7} After hearing from the prosecutor and defense counsel, the court stated:

         JUDGE: * * * The court has put a lot of time into this case looking

at the pre-sentence investigation; listening to all the parties; had previously

received Nicole Wax’s statement, as well as your mother has emailed the

court and made a statement through that email. The court must consider

the principles and purposes of sentencing in the sentencing statute, and

that is to protect the public from future crime; to punish you for the offense

committed; and to promote effective rehabilitation. Really, this case does

not hit more on target all three points of that. When I look at your history

in the pre-sentence investigation report, there’s a clear issue of protecting

the public. There’s a clear issue of you probably and likely recommitting

based upon your history, and then, obviously in this case we’ve already

heard of the damage and the injury suffered by the victim in this case. The

court has to look at the seriousness factors under the Ohio Revised Code,

and that does indicate the significant physical harm to the victim, as well as

it is your relationship that facilitated the offense, and the other factor is that

you are on active community control and were on so at the time the offense

was committed. You’re 34 years old, and while I have no doubt you would

take everything back from that day; you would never want this kind of harm

on any person, not to mention the person that you love and care for deeply.

That’s very obvious to this court, but the problem is everything does lead up

to it.   Your history; the facts about the actual incident; you both were

drinking; you put children in the car; you had no control what was going on
                                                                                  -7-


that day; you were on community control; you did have [a] prior conviction

for OVI; you did have a prior driving under suspension; you weren’t valid

that day; nothing about that day was going in the right direction legally.

Your record starts, looks like in 2004 you had criminal damaging; in 2005

you had an underage that was amended, so it goes back a very long time

with the alcohol; in 2007 you had an assault; in 2009 you had an abduction

where you received community control; 2016 you had an OVI conviction; in

2016 you also had an OVI suspension conviction; in 2018 a failure to notify,

felony, but what’s more significant about that is you were on community

control, you absconded and now there’s a pending probation violation with

that active community control. Your record indicates that not only do you

have the prior felonies; that you have prior felony consequences; you get

put on community control and then you violate. That establishes you’re not

being rehabilitated; you’re not doing what you’re supposed to be doing. It’s

clear that you need treatment of some sort for alcohol, and you have not

done that. You’re put on community control to abstain from alcohol, and

you’re still drinking, and then you put people in the car and this is the

consequence.     Being a felony of the second degree, the penalty is

mandatory. The court finds you are a risk to society based upon all of the

above. The court also finds and looks for what else are you doing in your

life. Are you working; are you going to school; are you making progress in

some other way I just don’t normally see because it’s not the legal part of it,

and in this case, I don’t even see that. It looks like you have a 17 year old
                                                                                   -8-


son where you’re in arrears of over $29,000.00 in child support. You have

a nine year old daughter, and it doesn’t look like you’re paying support for

her either. It looks [like] at some point you did complete some treatment at

Recovery Works, but your pre-sentence investigation report states you

began drinking at the age of seven and at some point in your life you would

drink 30 beers in two days. You really want to believe that you’ve changed;

that this won’t happen again, and you say in your pre-sentence investigation

report that it was a wake up; that you weren’t going to drink again after that

accident, but yet the pre-sentence investigation report says the last day you

drank was January 1st of this year and that accident was June 28th of 2018.

I can’t imagine anything worse happening as a result of alcohol, and yet it

looks like from the court’s report that you continued to drink after that. The

court is not aware of any mitigating factors under the Revised Code in this

case given the history that I’ve just gone over, as well as the community

control violation and the significant injury to the victim. The court does find,

however, and the family admirably admits today, that there is blame on the

victim as well, and no one can take this day back and re-predict what’s going

to happen, but what I do see in the facts is that you and two other, two

children, were in that car wearing seatbelts, and all of you seem to be okay

other than probably some psychological damage. Brooke was not wearing

her seatbelt. We have no idea what injury would have resulted had she

been wearing her seatbelt. The other factor, though, the victim also knew

you had been drinking, but it doesn’t take away from you driving and
                                                                                          -9-


       drinking. Everyone got in the car; two innocent children were in there who

       would have no idea what’s going on knowing not to get in a car like that;

       and when the investigating officer was at the scene, his statement was that

       there were beer bottles laying all around the scene, and your blood taken

       at the hospital showed a blood alcohol content of .142. There’s no doubt

       that that victim will never be whole in this case, and we’ve already heard the

       impact on her family with two young children and someone else having to

       take care of them as the victim can no longer do that and will never be able

       to do that. You’ve heard the descriptive detail of her condition, and I’m

       sure you were already familiar with that. She has no ability to take care of

       her own bodily functions not [sic] alone anyone else’s. The victims in the

       car include her son, who’s now suffering psychological consequences as

       well.   After everything that I’ve gone over, as well as the mandatory

       sentence: what the court finds of your inability to make changes at this point;

       you have not been rehabilitated, and you are likely to recommit, as well as

       there is a huge risk to the public. * * *

       {¶ 8} For these reasons, the court imposed an aggregate sentence of seven years

in prison, plus financial sanctions, a driving suspension, and points, as described above.

       {¶ 9} Blakley raises two assignments of error on appeal.               Blakley’s first

assignment of error is as follows:

               THE TRIAL COURT ERRED BY FINDING THAT THERE WERE NO

       MITIGATING FACTORS WHEN SENTENCING MR. BLAKLEY.

       {¶ 10} Blakley asserts that the record does not support his sentence “[b]ecause
                                                                                            -10-


the trial court failed to recognize even one mitigating factor in the face of a multitude of

such factors.” Blakley argues that, although the trial court is not required to specifically

state its analysis of the factors on the record, the court cannot simply state that there are

no mitigating factors “when those factors exist.” Thus, Blakley contends that the trial

court erred by imposing a seven-year prison sentence and that the sentence should be

“vacated.”

       {¶ 11} Blakley asserts that R.C. 2929.12(C)(1) applied, in that the victim facilitated

the offense, yet the trial court found no mitigating evidence. Blakley also asserts that the

trial court had before it evidence that he did not expect or want to cause any harm to the

victim, such that R.C. 2929.12(C)(3) applied as a mitigating factor. Further, Blakley

asserts that he and the victim “had a close relationship,” that he “showed genuine remorse

for his conduct,” and that “the victim was at least partly at fault for choosing to get into the

car with” him, citing R.C. 2929.12(C)(4). Finally, Blakley asserts that he has the support

of the victim’s family.

       {¶ 12} The State responds that “a careful reading of the transcript” shows that the

trial court’s finding that there were no mitigating factors related to Blakley’s history of

criminal convictions and compliance while on court supervision. The State asserts that

the court did consider Blakley’s remorse.        According to the State, “if it is somehow

determined that the trial court did not consider mitigating factors,” any error was harmless,

as the error was not prejudicial to Blakley based on the entire record at the sentencing

hearing, which supported a seven-year sentence.

       {¶ 13} Regarding the mitigating factors that Blakley claims the court ignored, the

State argues that the victim did not induce Blakley to drink alcohol, to drive the car drunk
                                                                                           -11-


with three passengers, or to cause the crash; Blakley “did that all alone.” The State

describes Blakley’s argument that the victim somehow induced or facilitated the crime

because she did not wear a seatbelt as “total speculation.” The State asserts that to

“argue that [Blakley] climbed into a vehicle, unlicensed, and drove it drunk but did not

expect to cause physical harm to anyone only highlights the likelihood of recidivism, as

clearly [Blakley] has not demonstrated any understanding of the risks of drunk driving.”

According to the State, “drunk driving puts the entire public at risk,” and “drunk driving

with someone you love in the car is not a mitigating factor, it is an aggravating factor.”

       {¶ 14} Regarding the seriousness factors set forth in R.C. 2929.12(B), the State

asserts that the significant physical injury to the victim “cannot be understated; she is in

a body-shaped tomb for as long as she lives. The life-shattering impact of her condition

on her life and the lives of her mother, sisters, and children is immeasurable.” The State

also argues that Blakley’s relationship with the victim facilitated the offense, as she trusted

him with her life and her child’s life. According to the State, none of the factors that make

the crime less serious applied.

       {¶ 15} Regarding recidivism, the State asserts that “at least three out of the five

factors” demonstrate that Blakley is likely to commit future crimes. Specifically, he was

on community control at the time of the offense (with a condition that he abstain from

alcohol use), and he had a prior criminal history that included two felony convictions and

convictions for both OVI and driving with a suspended license. The State argues that

Blakley’s commission of these crimes demonstrated that he had not been rehabilitated

and had not responded favorably to criminal sanctions. The State asserts that, other

than his remorse, there was no factor to suggest that Blakley was not likely to commit
                                                                                         -12-


future crime.

       {¶ 16} In reply, Blakley asserts that the trial court did not limit its finding of no

mitigating factors in any way, and it found no mitigating factors in the entire case.

According to Blakley, it “is not this Court’s job to decide that a seven-year sentence is

appropriate based on all the evidence that the trial court had before it. The State is

asking this Court to become the sentencing judge and to hand down a seven-year

sentence because the evidence seemed to support it. Such is not the mandate of this

Court.” Finally, Blakley asserts that the crucial question is whether or not the trial court

would have sentenced him to a prison term “if it had properly considered his remorse.”

       {¶ 17} As this Court has noted:

                When reviewing felony sentences, appellate courts apply the

       standard of review found in R.C. 2953.08(G)(2), not an abuse of discretion

       standard.     State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

       N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may

       increase, reduce, or modify a sentence, or it may vacate the sentence and

       remand for resentencing, only if it “clearly and convincingly” finds either (1)

       that the record does not support certain specified findings or (2) that the

       sentence imposed is contrary to law.

                “The trial court has full discretion to impose any sentence within the

       authorized statutory range, and the court is not required to make any

       findings or give its reasons for imposing maximum * * * sentences.” State v.

       King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial

       court must consider the statutory criteria that apply to every felony offense,
                                                                                         -13-


       including those set out in R.C. 2929.11 and R.C. 2929.12.            State v.

       Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d

       Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d

       1, ¶ 38. . * * * R.C. 2929.12(B) sets forth nine factors indicating that an

       offender's conduct is more serious than conduct normally constituting the

       offense, whereas R.C. 2929.12(C) sets forth four factors indicating that an

       offender's conduct is less serious than conduct normally constituting the

       offense. Similarly, R.C. 2929.12(D) and (E) each lists five factors that trial

       courts are to consider regarding an offender being more or less likely to

       commit future crimes.

State v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 6-7.

       {¶ 18} We conclude that, contrary to his assertions, Blakley’s felony sentence is

not unsupported by the record. At the start of the sentencing hearing, the court indicated

that it considered the principles and purposes of sentencing, as set forth in R.C.

2929.11(A). Pursuant to R.C. 2929.12(B)(2) and (6), the court considered the extensive

harm to the victim, and that Blakley’s relationship with her facilitated the offense.

Pursuant to R.C. 2929.12(D), the court considered that Blakley was on post-release

control at the time of the offense, had a history of criminal convictions, had not responded

favorably to previously imposed consequences, and had a demonstrated pattern of

alcohol abuse.

       {¶ 19} Regarding Blakley’s assertion that the court found that there were no

mitigating factors applicable to him, we conclude that he mischaracterizes the record.

The court considered Blakley’s entire criminal history, which included a prior OVI
                                                                                         -14-


conviction, a prior conviction for driving under suspension, no valid license on the day of

the accident, a criminal damaging conviction in 2004, an assault conviction in 2007, and

an abduction conviction in 2009. The court considered that Blakley’s history “indicates

that not only do you have the prior felonies; that you have felony consequences; you get

put on community control and then you violate.         That establishes you’re not being

rehabilitated; you’re not doing what you’re supposed to be doing. * * * You’re put on

community control to abstain from alcohol, and you’re still drinking.” The court also noted

that Blakley reported drinking after the accident. After the thorough review of Blakley’s

conduct from past to present, the court determined that it was “not aware of any mitigating

factors under the Revised Code in this case given the history that I’ve just gone over, as

well as the community control violation and the significant harm to the victim.”

       {¶ 20} The sentencing transcript further reflects that the court considered Blakley’s

remorse, noting that he “would take everything back from that day” and would “never want

this kind of harm on any person, not to mention the person that you love and care for

deeply.” The court recognized that there was blame on the victim as well, that she was

not wearing a seatbelt, and that she knew Blakley had been drinking, but concluded that

those facts did not “take away from [his] driving and drinking” with two innocent children

in the car.    The transcript reflects that Blakley’s “inability to make changes” was

significant to the court. Any weight to be given to the factor of remorse was solely within

the trial court’s discretion.   Notably, according to the PSI, Blakley resolved to stop

drinking as a result of the accident and failed to do so. We conclude that the record

reflects that the court thoroughly considered all relevant factors, and the record supports

Blakley’s sentence. Accordingly, Blakley’s first assignment of error is overruled.
                                                                                         -15-


       {¶ 21} Blakley’s second assignment of error is as follows:

              THE TRIAL COURT ERRED BY FINDING MR. BLAKLEY GUILTY

       ON THE MISDEMEANOR CHARGES WITHOUT AN EXPLANATION OF

       CIRCUMSTANCES.

       {¶ 22} Blakley asserts that the trial court failed to comply with R.C. 2937.07

because it found him guilty without an explanation of circumstances of his offense. The

State filed a notice of conceded error with respect to this assignment of error, noting that

the trial court did not obtain an explanation of circumstances before finding Blakley guilty

of the two misdemeanor counts on his plea of no contest. The State further concedes

that these two convictions should be reversed and remanded for further prosecution.

       {¶ 23} R.C. 2937.07 provides in part: “A plea to a misdemeanor offense of ‘no

contest’ or words of similar import shall constitute an admission of the truth of the facts

alleged in the complaint and that the judge or magistrate may make a finding of guilty or

not guilty from the explanation of circumstances of the offense.”

       {¶ 24} This Court has previously analyzed the “explanation of circumstances”

requirement as follows:

              The Supreme Court of Ohio has held that “the provision in R.C.

       2937.07 requiring an explanation of circumstances following a plea of no

       contest [in a misdemeanor case] has not been superseded by the

       enactment of Crim.R. 11 because the statutory provision confers a

       substantive right.” Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151, 459

       N.E.2d 532 (1984); see also Girard v. Giordana, 155 Ohio St.3d 470, 2018-

       Ohio-5024, 122 N.E.3d 151, ¶ 15 (“[T]he explanation-of-circumstances
                                                                                  -16-


requirement exists to provide an extra layer of procedural protection to the

defendant.”).

       “The statutorily required explanation of circumstances does not

mandate that sworn testimony be taken but instead only contemplates some

explanation of the facts surrounding the offense [so] that the trial court does

not make a finding of guilty in a perfunctory fashion.” State v. Jasper, 2d

Dist. Greene No. 2005 CA 98, 2006-Ohio-3197, ¶ 32, citing Bowers at 151.

The explanation “necessarily involves, at a minimum, some positive

recitation of facts which, if the court finds them to be true, would permit the

court to enter a guilty verdict and a judgment of conviction on the charge to

which the accused has offered a plea of no contest.” State v. Osterfeld, 2d

Dist. Montgomery No. 20677, 2005-Ohio-3180, ¶ 6.

       The State bears the burden of ensuring that an explanation of

circumstances appears on the record before a conviction is entered. State

v. Schornak, 2015-Ohio-3383, 41 N.E.3d 168, ¶ 8 (2d Dist.). However, it

is immaterial who actually states the explanation on the record.            Id.

Regardless of who states the explanation of circumstances, the record must

affirmatively demonstrate that a sufficient explanation of circumstances was

made. Id.

       An explanation that merely restates the statutory elements of the

offense is insufficient. State v. Wieckowski, 2d Dist. Clark No. 2010-CA-

111, 2011-Ohio-5567, ¶ 4. And, the explanation of circumstances

requirement “is not satisfied by a presumption that the court was aware of
                                                                                          -17-


       facts   which may be       gleaned from a review of            ‘the available

       documentation.’ ” State v. Keplinger, 2d Dist. Greene No. 98-CA-24, 1998

       WL 864837, *3, quoting Bowers at 151.

               Many Ohio appellate districts permit a waiver of the explanation of

       circumstances requirement. See Schornak [at] ¶ 12 (citing cases from other

       districts that permit waiver of the explanation of circumstances); State v.

       Fields, 2017-Ohio-400, 84 N.E.3d 193 (2d Dist.).      Nevertheless, we have

       held that a defendant's stipulation of guilt upon pleading no contest does

       not, by itself, waive the requirement. Schornak at ¶ 12; State v. Roland, 2d

       Dist. Champaign No. 2005 CA 30, 2006-Ohio-3517.

(Footnote omitted.) State v. Glowney, 2d Dist. Montgomery Nos. 27896, 27897, 2019-

Ohio-3390, ¶ 57-61.

       {¶ 25} We agree with the parties that the trial court erred in finding Blakley guilty

of Counts 2 and 3 without an explanation of circumstances as to the misdemeanor

offenses. In other words, for those offenses, the court was not permitted to find Blakley

guilty based upon the facts set forth in the indictment as read into the record by the court;

an explanation of circumstances was required. In the absence thereof, the court found

Blakley guilty in a “perfunctory fashion.” Jasper, 2d Dist. Greene No. 2005 CA 98, 2006-

Ohio-3197, ¶ 32, citing Bowers at 151.

       {¶ 26} The court in Girard, 155 Ohio St.3d 470, 2018-Ohio-5024, 122 N.E.3d 151,

determined that a failure to obtain the required explanation of circumstances prior to

finding a defendant guilty was a “procedural error,” and the matter must be remanded to

the trial court to make a finding of guilt or innocence based upon an explanation of
                                                                                           -18-


circumstances. Id. at ¶ 21-24. Accordingly, Blakley’s second assignment of error is

sustained.

      {¶ 27} The judgment of the trial court is reversed as to Blakley’s convictions on

Counts 2 and 3, and the matter is remanded for further proceedings on those counts

consistent with this opinion. The judgment of the trial court is affirmed as to Count 1.

                                          ...........



TUCKER, P.J. and HALL, J., concur.



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Janna L. Parker
John A. Fishcer
Hon. Stacy M. Wall
