[Cite as State v. Swaney, 2020-Ohio-210.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case Nos. 28357 & 28515
                                                  :
 v.                                               :   Trial Court Case Nos. 2018-CR-3334
                                                  :   & 2019-CR-340
 NICHOLAS R. SWANEY                               :
                                                  :   (Criminal Appeal from
         Defendant-Appellant                      :    Common Pleas Court)
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 24th day of January, 2020.

                                             ...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419
    Attorney for Defendant-Appellant

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

FROELICH, J.
                                                                                             -2-


       {¶ 1} Nicholas R. Swaney pled guilty to having weapons while under disability, a

third-degree felony, in Montgomery C.P. No. 2018-CR-3334 and to breaking and entering

and theft, both fifth-degree felonies, in Montgomery C.P. No. 2019-CR-340. The trial

court found Swaney guilty and imposed concurrent sentences totaling 24 months in

prison.

       {¶ 2} Swaney appeals from his convictions, claiming that his pleas were not made

knowingly, intelligently, and voluntarily, that the trial court acted unlawfully by interjecting

itself into the plea bargaining process, and that his sentences were contrary to law and

unsupported by the record. For the following reasons, the trial court’s judgments will be

affirmed.

                            I. Factual and Procedural History

       {¶ 3} In September 2018, in Case No. 2018-CR-3334, a grand jury indicted

Swaney for having weapons while under disability, in violation of R.C. 2923.13(A)(2).

The trial court set bail of a surety bond in the amount of $2,500. Swaney initially pled

not guilty. On October 10, 2018, however, Swaney appeared with counsel and pled

guilty to the charged offense.

       {¶ 4} At the beginning of the plea hearing, defense counsel told the trial court that

Swaney was “prepared to plead guilty as charged. The State has agreed to defer to the

Court as to sentencing.” Defense counsel asked the court to consider “COR to PSI so

that Mr. Swaney could show the Court that he is amenable to community control

sanctions.” The prosecutor indicated that she would defer to the court on the conditional

own recognizance bond request. The court told Swaney that it would take his plea and

change his bond to COR.          The court emphasized that “[i]f you don’t show up for
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everything, if you get in any trouble, if you don’t show up for final disposition that will be

weighing very heavily against you. You might want to just sit there for two weeks if you

don’t think you can do it.” The court stated that it was “looking at community control

sanctions for you but if you screw up between now and when you’re supposed to come

back that may not be my first option.” Swaney stated that he understood.

       {¶ 5} The trial court then engaged in a Crim.R. 11 plea colloquy, during which it

asked Swaney if he were under the influence of drugs or alcohol, his level of education,

if he had any difficulty reading the plea form, and if he were on probation or parole for any

other offense. (He was not.) The court informed Swaney of the constitutional rights that

he was waiving by entering a plea, and Swaney acknowledged that he was giving up

those rights.

       {¶ 6} The trial court told Swaney of the possible prison terms for having weapons

while under disability, as well as the possible financial sanctions. The court informed

Swaney that he would be subject to three years of post-release control if he were

sentenced to prison. The court also told Swaney that he was eligible for community

control sanctions, including various residential and non-residential sanctions. The court

indicated that if he were sentenced to community control sanctions, he would be required

to serve 36 months in prison if he violated community control. At the court’s request, the

State provided the factual basis for the charge using the language of the indictment. The

court asked Swaney how he wished to plead based on those facts. Swaney pled guilty.

       {¶ 7} The court asked Swaney to read the plea form and to sign it “[i]f you

understand what’s on it, what we’ve gone over and this is your voluntary plea.” Swaney

signed the plea form. The plea form included a statement that “I understand the effect
                                                                                      -4-


of my plea(s) and that the Court, upon acceptance of my plea(s), may proceed with

judgment and sentence.” The trial court accepted Swaney’s plea, ordered a presentence

investigation, and scheduled sentencing for November 7, 2018.

        {¶ 8} Swaney failed to appear for sentencing as required, and the court issued a

capias for his arrest. It is unclear whether Swaney had participated in the presentence

investigation; the presentence investigation report (PSI) is not part of the record.

Swaney was arrested on January 15, 2019.

        {¶ 9} On March 13, 2019, in Case No. 2019-CR-340, Swaney was indicted for

breaking and entering (unoccupied structure – barn) and for theft (without consent -

$1,000 or more, but less than $7,500) based on events that allegedly occurred on

February 27, 2018.       A deputy sheriff served Swaney with the indictment at the

Montgomery County Jail. Swaney pled not guilty to the new charges on March 19.

        {¶ 10} On March 27, 2019, the trial court held a combined sentencing hearing on

the weapons charge in Case No. 2018-CR-3334 and a plea/sentencing hearing on

Swaney’s new charges in Case No. 2019-CR-340. The trial court imposed 24 months in

prison for having weapons while under disability in Case No. 2018-CR-3334, to be served

concurrently with the sentences in Case No. 2019-CR-340.           The court accepted

Swaney’s guilty pleas to both breaking and entering and theft in Case No. 2019-CR-340

and imposed 12 months in prison on each count, to be served concurrently with each

other and to the sentence in Case No. 2018-CR-3334. The court credited Swaney with

122 days of jail time credit.

        {¶ 11} Swaney appeals from his convictions.1 In his first and second assignments


1   On October 1, 2019, we granted Swaney’s motion for a delayed appeal, pursuant to
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of error, Swaney claims that his pleas were not made knowingly, intelligently, and

voluntarily, and that he was denied due process.          He further claims in his fourth

assignment of error that the trial court failed to determine his understanding of the

maximum penalties involved.       Swaney argues that the trial court impermissibly had

“controlling involvement” in the plea bargaining process when it discussed Swaney’s

possible sentences with him.       Swaney’s third assignment of error challenges his

sentences.

                                II. Felony Plea Standards

       {¶ 12} “An appellate court must determine whether the record affirmatively

demonstrates that a defendant’s plea was knowing, intelligent, and voluntary[.]” State v.

Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama,

395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a defendant’s plea is not

knowing, intelligent, and voluntary, it “has been obtained in violation of due process and

is void.” Id. “In order for a plea to be given knowingly and voluntarily, the trial court

must follow the mandates of Crim.R. 11(C).” State v. Brown, 2d Dist. Montgomery Nos.

24520, 24705, 2012-Ohio-199, ¶ 13.

       {¶ 13} Crim.R. 11(C)(2) requires a trial court to address the defendant personally

and (a) determine that the defendant is making the plea voluntarily, with an understanding

of the nature of the charges and the maximum penalty, and, if applicable, that the

defendant is not eligible for probation or for the imposition of community control sanctions;

(b) inform the defendant of and determine that the defendant understands the effect of

the plea of guilty and that the court, upon acceptance of the plea, may proceed with


App.R. 5(A), in Montgomery App. No. 28515 (Case No. 2019-CR-340).
                                                                                           -6-


judgment and sentencing; and (c) inform the defendant and determine that he or she

understands that, by entering the plea, the defendant is waiving the rights to a jury trial,

to confront witnesses against him or her, to have compulsory process for obtaining

witnesses, and to require the State to prove guilt beyond a reasonable doubt at a trial at

which he or she cannot be compelled to testify against himself or herself. State v. Brown,

2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.

       {¶ 14} The Supreme Court of Ohio has urged trial courts to comply literally with

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

The trial court must comply strictly with Crim.R. 11(C)(2)(c), as it pertains to the waiver of

federal constitutional rights. Id. at ¶ 31. However, because Crim.R. 11(C)(2)(a) and (b)

involve non-constitutional rights, the trial court need comply only substantially with those

requirements. E.g., State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d

766, ¶ 11. “Substantial compliance means that under the totality of the circumstances

the defendant subjectively understands the implications of his plea and the rights he [or

she] is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

       But “[w]hen the trial judge does not substantially comply with Crim.R. 11 in

       regard to a nonconstitutional right, reviewing courts must determine

       whether the trial court partially complied or failed to comply with the rule.”

       (Emphasis sic.) Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

       462, at ¶ 32.    “If the trial judge partially complied, e.g., by mentioning

       mandatory postrelease control without explaining it, the plea may be

       vacated only if the defendant demonstrates a prejudicial effect.” Id. But if

       the trial court completely failed to comply with the rule, the plea must be
                                                                                           -7-


          vacated. Id. Complete failure “ ‘to comply with the rule does not implicate

          an analysis of prejudice.’ ” Id., quoting State v. Sarkozy, 117 Ohio St.3d

          86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

Bishop at ¶ 19. See also State v. McGlinch, 2019-Ohio-1380, __ N.E.3d __, ¶ 28 (2d

Dist.).

          {¶ 15} Plea agreements are generally made between the State and a defendant.

State v. Sage, 2d Dist. Montgomery No. 25453, 2013-Ohio-3048, ¶ 23. Unless the court

involves itself in the plea negotiations or agrees to the terms of the agreement, the trial

court is not bound by the plea agreement, and the court may determine the appropriate

sentence for the charges to which the defendant has pled guilty or no contest. Id., citing

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28.

          {¶ 16} The Ohio Supreme Court has held that judicial participation in plea

negotiations does not render a plea invalid per se, but such involvement requires careful

scrutiny to determine if “the judge’s active conduct could lead a defendant to believe he

cannot get a fair trial because the judge thinks that a trial is a futile exercise or that the

judge would be biased against him at trial.” State v. Mills, 2d Dist. Montgomery No.

26619, 2015-Ohio-5385, ¶ 11, quoting State v. Byrd, 63 Ohio St.2d 288, 293-94, 407

N.E.2d 1384 (1980). “Byrd stands for the proposition that a plea of guilty or no contest

will be presumed to be coerced if the trial judge takes a partisan position in support of the

plea.” State v. Chenoweth, 2d Dist. Montgomery No. 15846, 1997 WL 630018, *2 (Sept.

19, 1997).

          {¶ 17} We have repeatedly stated that, when the trial court promises a certain

sentence at a plea hearing, that promise “becomes an inducement to enter a plea, and
                                                                                         -8-


unless that sentence is given, the plea is not voluntary.” E.g., State v. Anderson, 2d Dist.

Montgomery No. 26056, 2014-Ohio-4699, ¶ 9; State v. Gilroy, 195 Ohio App.3d 173,

2011-Ohio-4163, 959 N.E.2d 19, ¶ 22 (2d Dist.); State v. Layman, 2d Dist. Montgomery

No. 22307, 2008-Ohio-759, ¶ 15, quoting State v. Bonnell, 12th Dist. Clermont No.

CA2001-12-094, 2002-Ohio-5882.

                III. Voluntariness and Lawfulness of Swaney’s Pleas

       {¶ 18} We find nothing in the trial court’s conduct at either plea hearing that

rendered Swaney’s pleas unlawful or other than knowing, intelligent, and voluntary.

       A. Case No. 2018-CR-3334

       {¶ 19} During the plea hearing for the charge of having weapons while under

disability (Case No. 2018-CR-3334), the trial court initially addressed Swaney’s possible

sentence in the context of defense counsel’s request (made prior to the plea colloquy)

that Swaney be released on an own-recognizance bond so that he could demonstrate his

amenability to community control. The trial court told Swaney that it was “looking at

community control sanctions for you but if you screw it up between now and when you’re

supposed to come back that may not be my first option.” By making this and similar

statements to Swaney, the trial court did not interject itself into the plea bargaining

process. It merely emphasized to Swaney that any failure to comply with the conditions

of the own-recognizance bond would negatively affect Swaney’s ultimate sentence. At

no time did the trial court promise that Swaney would receive a particular sentence or

encourage Swaney to enter a guilty plea in order to receive a more lenient sentence.

       {¶ 20} During the court’s subsequent plea colloquy, the court informed Swaney of

the maximum sentence that he faced for having weapons while under disability, saying
                                                                                         -9-


that he could “be sentenced to any following – financial sanctions including a fine of up to

$10,000, court costs, restitution, and other financial sanctions.” The court further told

Swaney that he faced “a possible prison term of 9, 12, 18, 24, 30, or 36 months.” The

court notified Swaney of the post-release control obligation if a prison sentence were

imposed.    The court also told Swaney that he was eligible for community control

sanctions for a period of up to five years, which could include “community residential

sanctions including up to six months in jail or the MonDay, STOP program or inpatient

treatment * * * [and] nonresidential sanctions – outpatient drug treatment, community

service work, classes for probation, getting and keeping a job, having a curfew, things

like that, not having guns.” The court told Swaney that he would be required to serve 36

months in prison if he were placed on community control and violated the conditions of

his community control. At the court’s request, the prosecutor read the “facts” as alleged

in the indictment. The court thus complied with Crim.R. 11(C)(2)(b).

       {¶ 21} The trial court strictly complied with its obligation to inform Swaney of and

determine that he understood the constitutional rights that he was waiving by entering his

plea. The trial court did not inform Swaney that a guilty plea was a complete admission

of guilt, but Swaney read and signed his plea form, which indicated that he understood

the nature of his plea and understood that the court could proceed immediately to

sentencing. The record reflects that Swaney’s plea to having weapons while under

disability in Case No. 2018-CR-3334 was made knowingly, intelligently, and voluntarily.

       {¶ 22} After accepting Swaney’s plea, the court reiterated that it was changing

Swaney’s bond to “COR to PSI” and that “any problems, they’re going to really weigh

heavily against you. And I mean it on that. I take these gun charges seriously.” Again,
                                                                                       -10-


the court’s comments simply reiterated that any failure to comply with the terms of the

bond could affect the sentence ultimately imposed.

      B. Pleas in Case No. 2019-CR-340

      {¶ 23} Swaney emphasizes that the trial court had “controlling involvement” in the

plea negotiations in Case No. 2019-CR-340. At the beginning of the March 27, 2019

hearing, defense counsel and the trial court discussed the potential plea agreement:

      [DEFENSE COUNSEL]: Your Honor, I’ve discussed the agreement with Mr.

      Swaney this morning that if he were to plead guilty to both counts of the

      new indicted charge, that the B and E and theft were felonies of the fifth

      degree, that he would receive a concurrent sentence for the case for which

      he’s before the Court for sentencing [i.e., Case No. 2018-CR-3334].

      THE COURT: Correct. So what are you doing?

      [DEFENSE COUNSEL]: We’re going to tender the plea.

      THE COURT: Okay.

      [DEFENSE COUNSEL]: And we would waive any additional pre-sentence

      investigation.

      ***

      THE COURT: Okay. So it’s breaking and entering and a theft. Those are

      both felonies of the fifth degree. So I would give you 12 months on each

      of those, 24 months on the other one concurrent to each other and then

      since it’s the [sic] concurrent you get 122 days jail time credit. Okay?

      THE DEFENDANT: Yeah.

      {¶ 24} The court then conducted its Crim.R. 11 colloquy. The court informed
                                                                                         -11-


Swaney of the constitutional rights he was waiving by pleading guilty to the two charges.

The court told him that he could be ordered to pay financial sanctions. The court further

told Swaney that he could “be sentenced to a prison term of between six and 12 months

on each count,” but specified that it was “going to sentence you to 24 months on the case

pending sentence and 12 months on these two.” Swaney stated that he understood.

The court told Swaney that, since it was “sending you to prison, following your release

you could be placed on post-release control for a period of three years.” As to community

control, the court stated: “Technically, you’re eligible for community control sanctions but

we’re not even going to consider it. Do you understand that?” Swaney responded,

“Yes.”

         {¶ 25} The prosecutor read the facts, as stated in the indictment, for each of the

charges.     When asked how he pleaded based on those facts, Swaney responded,

“Guilty.” Swaney read and signed the plea form, which stated that he understood the

nature of his plea and that he could be sentenced immediately.

         {¶ 26} The record does not support Swaney’s contentions that his pleas were not

made knowingly, intelligently, and voluntarily, or that the trial court acted improperly. At

the beginning of the March 27 hearing, defense counsel indicated to the court that she

had discussed with Swaney a proposed plea agreement whereby he would receive

concurrent sentences in both Case Nos. 2018-CR-3334 and 2019-CR-340 if he were to

plead guilty to the two fifth-degree felonies. (The prosecutor did not comment on the

proposed plea agreement at the plea hearing.) The court indicated, prior to conducting

the Crim.R. 11 colloquy, that it would impose those sentences concurrently, in

accordance with the plea agreement.
                                                                                         -12-


       {¶ 27} It is unclear from the record whether the trial court discussed with counsel

its intended sentences prior to the hearing. Nevertheless, prior to the plea colloquy, the

trial court notified Swaney that it intended to impose a 24-month sentence in Case No.

2018-CR-3334 and 12-month sentences in Case No. 2019-CR-340, all to be served

concurrently. The court did not suggest that Swaney would receive harsher sentences

or consecutive sentences if he did not enter guilty pleas in Case No. 2019-CR-340. And,

immediately following the entry of his guilty pleas, the court imposed the concurrent

sentences, as previously stated.       Swaney’s plea was not rendered involuntary or

contrary to law merely because the trial court informed him of the sentences it would

impose if he pled to the charges.

       {¶ 28} Swaney further argues that he did not understand the maximum penalty in

Case No. 2019-CR-340, because the trial court did not inform him that he faced a

maximum of five years in prison if his sentences were run consecutively (12 months + 12

months + 36 months in Case No. 2018-CR-3334).              However, such an advisement

generally is not required. As stated by the Ninth District:

       Usually, a trial judge is not required to advise a defendant at the time of his

       plea that consecutive sentences may be imposed. See State v. Johnson,

       40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), syllabus. In Johnson, the

       Court reasoned that “the decision of whether the criminal defendant is to

       serve the sentences for all his crimes consecutively or concurrently is a

       matter of sentencing discretion” and “[t]he exercise of such discretion”

       occurs at the time of sentencing not when the plea is entered. Id. at 133-

       134, 532 N.E.2d 1295.
                                                                                         -13-


State v. Bailey, 2016-Ohio-4937, 68 N.E.3d 416, ¶ 11 (9th Dist.). An exception exists

when a statute requires that sentences be served consecutively, e.g., Bailey at ¶ 13, but

that circumstance did not exist in this case. Regardless, the trial court ordered all the

sentences to be served concurrently, as promised. Swaney’s argument lacks merit.

       {¶ 29} Swaney’s first, second, and fourth assignments of error are overruled.

                                IV. Swaney’s sentences

       {¶ 30} In his third assignment of error, Swaney claims that “the record does not

support Appellant’s sentence(s) under the purposes and principles in R.C. §2929.11 and

the seriousness and recidivism factors in R.C. §2929.12.” However, Swaney’s appellate

brief focuses solely on his understanding of the possible maximum sentence; he does not

address the length of the sentences imposed.

       {¶ 31} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

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. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,

2017-Ohio-4097, ¶ 6.

       {¶ 32} “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 or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
                                                                                        -14-


court must consider the statutory policies that apply to every felony offense, 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.

       {¶ 33} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others, to punish the offender, and to promote the effective rehabilitation of

the offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A). The court must “consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the offender,

and making restitution to the victim of the offense, the public, or both.”       Id.   R.C.

2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably

calculated to achieve the three overriding purposes of felony sentencing * * *,

commensurate with and not demeaning to the seriousness of the offender’s conduct and

its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.”

       {¶ 34} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious than conduct normally

constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts

are to consider regarding the offender’s likelihood of committing future crimes. Finally,

R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service
                                                                                       -15-


record, if any.

       {¶ 35} Prior to imposing sentence, the trial court asked defense counsel if she had

anything to say on Swaney’s behalf. Defense counsel responded, “No, we’ve had the

opportunity to discuss this. I appreciate that. Thank you, Judge.” Swaney declined to

say anything on his own behalf. The court did not ask the prosecutor if she wished to

comment on Swaney’s sentence. The trial court then imposed sentence in each case.

The court stated that, for Case No. 2018-CR-3334, it had “consider[ed] the purposes and

principles of sentencing in the Revised Code Section 2929.11 and the seriousness and

recidivism factors in the Ohio Revised Code Section 2929.12.” For Case No. 2019-CR-

340, it indicated that it had considered “the same statutes.” The 24-month sentence in

Case No. 2018-CR-3334 and the 12-month sentences for Case No. 2019-CR-340 were

within the statutory ranges for the charged offenses. See R.C. 2929.14(A)(3)(b) and

2929.14(A)(5).    Because Swaney previously had pleaded guilty to a felony offense,

mandatory community control for the fifth-degree felonies did not apply.        See R.C.

2929.13(B)(1)(a).

       {¶ 36} Based on the limited record before us, we cannot conclude that Swaney’s

sentences were contrary to law or clearly and convincingly unsupported by the record.

Swaney’s third assignment of error is overruled.

                                     V. Conclusion

       {¶ 37} The trial court judgments will be affirmed.

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



TUCKER, P.J. and DONOVAN, J., concur.
                         -16-



Copies sent to:

Mathias H. Heck
Lisa M. Light
Carlo C. McGinnis
Hon. Barbara P. Gorman
