[Cite as State v. Donegan, 2017-Ohio-8520.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 6-17-05

        v.

THOMAS J. DONEGAN,                                       OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. CRI 20162155

                                     Judgment Affirmed

                         Date of Decision: November 13, 2017




APPEARANCES:

        Michael J. Short for Appellant

        Jason M. Miller for Appellee
Case No. 6-17-05



ZIMMERMAN, J.

       {¶1} Defendant-appellant, Thomas J. Donegan (“Donegan”), appeals the

April 12, 2017 sentencing entry of the Hardin County Court of Common Pleas. For

the reasons that follow, we affirm the judgment and sentence of the trial court.

       {¶2} On October 28, 2016, the Hardin County grand jury indicted Donegan

on Count One: Rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first

degree;   and   Count    Two:     Gross    Sexual   Imposition    in   violation   of

2907.05(A)(4)(C)(2), a felony of the third degree. (Doc. 1).

       {¶3} On November 8, 2016, Donegan entered a plea of not guilty to both

charges and his case was set for a jury trial for January 17, 2017. (Doc. 6).

       {¶4} On November 16, 2016, Donegan filed a motion for a competency

evaluation. The evaluation was ultimately conducted on January 11, 2017 and the

competency hearing occurred on February 9, 2017, wherein the trial court found

Donegan competent to stand trial. A new trial date was then set for March 30, 2017.

(Doc. 26).

       {¶5} On March 9, 2017, the trial court conducted its final pretrial hearing on

the charges at which time Donegan withdrew his plea of not guilty to Count Two

and entered a plea of guilty. Pursuant to negotiations, the State dismissed Count

One (Rape) of the indictment in exchange for Donegan’s guilty plea. (Change of

Plea Tr. Pg. 2). At the plea hearing Donegan signed a “Waiver of rights and plea of

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guilty” form that reflected his change of plea. (Doc. 30). In accepting Donegan’s

plea, the trial court found him guilty of Gross Sexual Imposition, and ordered a pre-

sentence investigation (“PSI”) report. (Doc. 31).

       {¶6} Donegan was sentenced to a prison term of thirty months which was

journalized by the trial court’s judgment entry filed April 12, 2017. (Doc. 35).

       {¶7} On April 19, 2017 Donegan timely filed a notice of appeal raising the

following assignment of error.

                           ASSIGNMENT OF ERROR

       THE DEFENDANT’S PLEA WAS NOT GIVEN KNOWINGLY,
       INTELLIGENTLY, AND VOLUNTARILY.

       {¶8} In his sole assignment of error, Donegan asserts that the trial court erred

in accepting his guilty plea because it was not made knowingly, intelligently, and

voluntarily.

       {¶9} “ ‘When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points

renders enforcement of the plea unconstitutional under both the United States

Constitution and the Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, ¶7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996).

       {¶10} Crim.R. 11(C) states:

       (2) In felony cases the court may refuse to accept a plea of guilty
           or a plea of no contest, and shall not accept a plea of guilty


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            or no contest without first addressing the defendant
            personally and doing all of the following:

       (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.

       (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.

       {¶11} “[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, citing Veney, at ¶31. “When a trial court fails to strictly

comply with this duty, the defendant’s plea is invalid.” Id. However, a trial court

is required to only substantially comply with the non-constitutional notifications

required by Crim.R. 11(C)(2)(a) and (b). Id. at ¶14. An appellate court reviews that

substantial-compliance standard based upon the totality of the circumstances


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surrounding the defendant’s plea and determines whether he subjectively

understood the implications of his plea and the rights he waived. Id., citing State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶20. “Furthermore, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made must show a prejudicial effect. * * * The test is whether the plea

would have otherwise been made.” Id., quoting State v. Nero, 56 Ohio St.3d 106,

108 (1990).

       {¶12} In the case sub judice, we find that Donegan was properly advised of

his constitutional rights under Crim.R. 11 by the trial court. The record establishes

that the Court personally addressed Donegan regarding his plea of guilty in

accordance with Crim.R. 11(C)(2).          Specifically, with respect to Crim.R.

11(C)(2)(b), the record reflects as follows:

       Court:      Mr. Donegan, is that your understanding – that
       you’re prepared to enter a plea to the one count, is that what
       you’re gonna do today?

       Defendant: Yes sir.

       ***

       Court:        Alright. You can turn the page sir. Do you
       understand, Mr. Donegan, when you plead guilty to a criminal
       charge, one of the effects of that plea of guilty is that you, in
       essence, are admitting the facts that form the basis for that charge
       * * *. Do you understand that?

       Defendant: Yes sir.


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       Court:        Do you understand, Mr. Donegan, if I accept your
       plea today, I legally have the right to go ahead and sentence you
       today if I want to do that. Do you understand that?

       Defendant: Yes sir.

(Change of Plea Tr. Pgs. 2, 3, 6).

{¶13} Furthermore, with respect to Crim.R. 11(C)(2)(c), the record states:

       Court:        Alright. Do you understand, Mr. Donegan, that you
       share with every citizen in the State of Ohio the right, having been
       charged with a crime, you have the right to have your guilt or
       your innocence on this charge determined not by one person, not
       by me alone, but you have a right to have a jury of twelve citizens
       of Hardin County chosen – they would be chosen by you and your
       attorney, as well as the State’s attorney, and once chosen, those
       twelve citizens – we call them a jury – they would be the ones that
       would determine if you’ve broken the law. So you understand
       you have a complete right to a trial by jury?

       Defendant: Yes sir.

       Court:        Alright. Do you understand by entering this plea of
       guilty that you’re giving up your right to a jury trial?

       Defendant: Yes sir.

       Court:       Do you understand if you wanted to have a trial, we
       would all expect the State, the prosecutor, would call witnesses to
       try to prove its case against you? Do you understand for every
       witness the State would use, you have a right to see that witness
       and question that witness?

       Defendant: Yes.

       ***

       Court:        Alright. So do you understand by entering these
       pleas of guilty, this one plea of guilty – excuse me – you’re giving

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      up your right to see and question all of the State’s witnesses,
      you’re also giving up your right to make people come to court to
      be your witness. Do you understand all of that?

      Defendant: Uh

      Court:       Let me break it down. Do you understand that
      you’re not going to be able to see and question any of the State’s
      witnesses, because when you plead guilty they won’t use any
      witnesses? Do you understand that?

      Defendant: Yes sir.

      Court:      And you also understand by pleading guilty you
      won’t be bringing witnesses in to determine whether you
      committed this crime, you’re just admitting it. Do you
      understand that?

      Defendant: Yes sir.

      ***

      Court:       Alright. Do you understand that by entering this
      plea you’re giving up your right to a trial?

      Defendant: My question is, sir, is if I don’t want a jury trial

      Court:       Correct. This is what you do when you choose not to
      have a jury trial. That’s what we’re going through now. There
      won’t be a trial. Is that what you understand?

      Defendant: Yes.

(Change of Plea Tr. Pgs. 6-10).

      {¶14} The court further questioned Donegan as follows with respect to

Crim.R. 11(C)(2)(b):



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      Court:        * * * What I’m saying is at the moment legally you
      are still innocent, but as soon as we go through this process you
      will no longer be considered innocent of this charge. Do you
      understand that?

      Defendant: Yes sir.

      ***

      Court:        Alright. So do you understand that you would not
      have to testify if there was a trial? Do you understand that?

      Defendant: Yeah.

      Court:       Nobody can make you speak.

      Defendant: I understand.

      ***

      Court:        * * * Are you making this plea because someone is
      threatening you or forcing you to do it, or are you doing this
      because it’s your decision?

      Defendant: I’m doing this on my own decision.

      Court:      Alright. That’s what I want to ask, because I want
      to make sure nobody is making you do this.

      Defendant: No.

      Court:      Alright. Very good. And are you doing this, Mr.
      Donegan, knowing that there is no decision as to what my sentence
      would be? There’s absolutely no decision. That remains to be
      seen. Do you understand that?

      Defendant: Yes sir.

      ***

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       Court:      Mr. Donegan, having gone through this whole
       process now, to the count of gross sexual imposition, as I said, do
       you plead guilty or not guilty?

       Defendant: Well on that I pleaded guilty.

       ***

       Court:        So to the charge of gross sexual imposition

       Defendant: I’m guilty.

       Court:         Alright. So then the Court’s going to find – first of
       all I have to decide whether I think you’re acting voluntarily, and
       you’ve convinced me you are acting voluntarily, and that
       nobody’s making you do anything

       Defendant: No.

       Court:        Very good. I understand. And that you are doing
       this without any knowledge of what the sentence will be, so the
       Court finds you’re doing voluntary action. I also find you have
       been given all of your constitutional and statutory rights, and
       you’ve questioned me about many of those and have then
       answered the questions appropriately. So the Court’s going to
       find that you have acknowledged that you understand your rights
       and therefore the Court is going to find that your plea to count
       two of guilty is knowingly and intelligently and voluntarily based.
       So we will enter that plea of record now.

(Change of Plea Tr. Pgs. 13 - 15, 22 - 23, 33 - 34).

       {¶15} In addition to the trial court’s personal advisement (to Donegan) of his

constitutional rights, Donegan also reviewed and signed a “waiver of rights and plea

of guilty” form (Doc. 30) that contained a recital of his following constitutional and

statutory rights:

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           Waiver of trial by jury
           Waiver of confrontation and cross-examination of State’s
            witnesses
           Waiver of subpoenaing and/or calling witnesses
           Waiver of State’s requirement to prove guilty beyond a
            reasonable doubt
           Waiver of presumption of innocence
           Waiver of right to remain silent

       {¶16} Based upon the trial court’s advisement colloquy with Donegan and

our review of Donegan’s rights waiver form (Doc. 30), we find the record

establishes that the requirements of Crim.R. 11(C)(2) have been satisfied in this

case. The record reflects that the trial court meticulously inquired of Donegan of

his understanding of the nature of the proceedings, his constitutional rights, the

maximum punishment involved and the impact of entering a plea of guilty. Further,

Donegan reviewed and signed a rights waiver form which duplicated the trial court’s

advisement of his constitutional rights. Thus, Donegan was properly advised of his

Crim.R. 11 rights by the trial court and we find that his plea of guilty was knowingly,

intelligently and voluntarily entered. Accordingly, we overrule Donegan’s sole

assignment of error.

       {¶17} Having found no error prejudicial to the appellant herein in the

particular assignment of error, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr

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