[Cite as State v. Huston, 2018-Ohio-2818.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLINTON COUNTY 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 - vs - 

GEORGE S. HUSTON, 

 Defendant-Appellant. 

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CASE NO. CA2017-08-012 

O P I N I O N 

 7/16/2018 

CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS 

Case No. CRI 16-500-300 

Richard W. Moyer, Clinton County Prosecuting Attorney, Lindsey M. Fleissner, 103 East 

Main Street, Wilmington, OH 45177, for plaintiff-appellee 

Craig A. Newburger, 477 Forest Edge Drive, South Lebanon, OH 45065, for defendantappellant 

 S. POWELL, P.J.

{¶ 1} Defendant-appellant, George S. Huston, appeals from his conviction in the 

Clinton County Court of Common Pleas after he pled no contest to single counts of burglary 

and attempted aggravated arson. For the reasons outlined below, we reverse in part and 

remand this matter to the trial court to issue the necessary nunc pro tunc judgment entries 

to correct the clerical errors in the trial court's applicable judgment entries of plea and 
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sentence. In all other respects, we affirm the trial court. 

{¶ 2} On October 4, 2016, two complaints were filed with the Clinton County 

Municipal Court charging Huston with burglary and attempted aggravated arson, both thirddegree felonies. As it relates to the complaint charging Huston with attempted aggravated 

arson, the complaint stated the following: 

Complainant being duly sworn states that George Sam Huston 

at 1079 SR 134 S Wilmington, Clinton County, Ohio on or about 

October 03, 2016, did purposely or knowingly and with sufficient 

culpability for commission of a violation of Section 2909.02A2 of 

the Revised Code engage in conduct that if successful would 

constitute or result in a violation of Section 2909.02A2 of the 

Revised Code; to wit Aggravated Arson (did by means of fire or 

explosion knowingly cause physical harm to 1079 SR 134 South 

and [sic] occupied structure). 

{¶ 3} Attached to the complaint was an affidavit in support authored by Patrol 

Officer Anthony Mitchell of the Wilmington Police Department. As part of this affidavit, 

Officer Mitchell stated he was dispatched to a home located on State Route 134 where he 

noticed the glass front door shattered and Huston sitting on the porch with "blood all over 

him." Officer Mitchell also noticed Huston had two bottles of alcohol, specifically "a bottle 

of Not Your Father's Root Beer and Zabu Nore D'avola Red Wine." Investigating the matter 

further, Officer Mitchell averred that a check of the home led to the discovery of tiki torch oil 

splattered on the front porch, kitchen, and mud room areas. Continuing, Officer Mitchell 

averred: 

Huston was advised of his rights per-miranda [sic] and asked 

about the incident. Huston advised Darlene asked him to come 

in. So he walked through the front door and left with a bottle of 

wine. Detective Riley arrived on scene and processed the 

scene. A piece of Huston's shirt was located near the mud room 

covered in the Tiki Torch fluid. There was also a light[er] located 

next to the shirt. Upon further investigation, units observed the 

shirt had been on fire. There were marks observed along the 

bottom of the door and up the door jam of the mud room. 

{¶ 4} Officer Mitchell stated that after conferring with the Clinton County 
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Prosecutor's Office, Huston was arrested and transported to the Clinton County Jail where 

he was booked on charges of burglary and attempted aggravated arson. 

{¶ 5} On October 24, 2016, the Clinton County Grand Jury returned an indictment 

charging Huston with the same burglary and attempted aggravated arson offenses alleged 

in the complaint previously filed with the Clinton County Municipal Court. As relevant to this 

appeal, the portion of the indictment charging Huston with attempted aggravated arson 

stated the following: 

THE JURORS OF THE GRAND JURY of the State of Ohio, 

within and for the body of the County aforesaid, on their oaths, 

in the name and by the authority of the State of Ohio, do find 

and present that on or about the 3rd day of October, 2016, at 

Clinton County, Ohio, George S. Huston, did knowingly and with 

sufficient culpability for commission of a violation of Aggravated 

Arson in violation of Section 2909.02(A)(2) of the Ohio Revised 

Code, engage in conduct that, if successful, would constitute or 

result in a violation of Aggravated Arson in violation of Section 

2909.02(A)(2) of the Ohio Revised Code, in violation of Title 29, 

Sections 2923.02(A) of the Ohio Revised Code (Attempted 

Aggravated Arson, a felony of the third degree) and against the 

peace and dignity of the State of Ohio. 

(Emphasis sic.) 

{¶ 6} On November 8, 2016, Huston appeared at his arraignment hearing and 

entered a plea of not guilty to both the burglary and attempted aggravated arson charges. 

Several months later, on June 6, 2017, Huston appeared before the trial court for a change 

of plea hearing. At this hearing, the trial court reviewed the change of plea form signed by 

Huston, wherein Huston agreed to enter a plea of no contest to both the burglary and 

attempted aggravated arson charges. As part of this review, the trial court informed Huston 

of the rights he would be giving up by entering a plea of no contest, including the fact that 

he would be pleading no contest to burglary and attempted aggravated arson as charged. 

The trial court also informed Huston that by pleading no contest as opposed to guilty that 

"could or could not have some impact on sentencing because you're not acknowledging 
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responsibility, that is one of the factors the Court looks at in terms of remorse." The trial 

court, however, noted that "there," meaning the sentencing hearing, Huston would be "able 

to explain extenuating circumstances * * * that may be helpful to you." 

{¶ 7} Following this review, the trial court asked Huston if there was anything that 

he did not understand, including the nature of the charges levied against him. Huston 

replied, "No, sir." Upon Huston informing the trial court that he did not have any questions 

regarding the nature of the charges against him, nor any questions regarding the maximum 

penalty he faced, the state then recited the following facts as it relates to the attempted 

aggravated arson charge: 

Finally, on the 3rd day of October, this defendant did knowingly 

– or did with sufficient culpability in the commission of a violation 

of aggravated arson in violation of 2909.02(A)(2) of the Ohio 

Revised Code did engage in conduct that if successful would 

constitute or result in a violation of aggravated arson. 

{¶ 8} After the state's recitation of the facts, the trial court asked Huston if he heard 

the facts as alleged by the state. Huston replied, "Yes, sir." The trial court then asked 

Huston if he was "willing to admit those facts are true in the no contest plea?" Huston again 

replied, "Yes, sir." Admitting the facts alleged by the state as true, the trial court accepted 

Huston's no contest plea and found Huston guilty as charged upon finding Huston had 

entered his no contest plea knowingly, intelligently, and voluntarily. Although the record is 

clear that Huston entered a plea of no contest, the trial court thereafter issued a judgment 

entry of plea indicating Huston had pled guilty, not Huston's actual plea of no contest. 

{¶ 9} On July 20, 2017, the trial court held a sentencing hearing and sentenced 

Huston to serve a total of 54 months in prison. The trial court also ordered Huston to pay 

restitution and court costs and notified Huston that he would be subject to an optional threeyear postrelease control term. Again, although the record is clear that Huston entered a 

plea of no contest, the trial court issued a judgment entry of sentence, which the trial court 
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thereafter twice amended, again indicating Huston had pled guilty, not Huston's actual plea 

of no contest. 

{¶ 10} Huston now appeals from his conviction, raising two assignments of error for 

review. 

{¶ 11} Assignment of Error No. 1: 

{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY 

STATING APPELLANT ENTERED PLEAS OF GUILTY ON THE JUDGMENT ENTRY OF 

GUILTY AND JUDGMENT ENTRY OF SENTENCE. 

{¶ 13} In his first assignment of error, Huston correctly notes the trial court improperly 

stated in its judgment entries of plea and sentence that he pled guilty, not his actual plea of 

no contest. Huston requests this court reverse and remand this matter to the trial court to 

issue nunc pro tunc judgment entries of plea and sentence to correct this clerical error. The 

state agrees this matter should be reversed and remanded so the trial court can issue the 

necessary nunc pro tunc judgment entries as Huston suggests. We also agree. See, e.g., 

State v. Wright, 2d Dist. Montgomery No. 26471, 2015-Ohio-3919, ¶ 46 (remanding to the 

trial court for correction of termination entry indicating appellant pled guilty rather than his 

actual plea of no contest); State v. Smith, 10th Dist. Franklin No. 13AP-592, 2014-Ohio712, ¶ 7 (remanding to the trial court for correct designation of plea that had actually 

occurred). Therefore, Huston's first assignment of error is sustained. On remand, the trial 

court shall issue the necessary nunc pro tunc judgment entries to correct the clerical errors 

in the trial court's applicable judgment entries of plea and sentence to note Huston pled no 

contest. 

{¶ 14} Assignment of Error No. 2: 

{¶ 15} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY 

FINDING APPELLANT GUILTY OF COUNT II [ATTEMPTED AGGRAVATED ARSON] 
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BASED UPON STATE'S DEFECTIVE INDICTMENT AND RECITATION OF FACTS. 

{¶ 16} In his second assignment of error, Huston argues the trial court erred by 

finding him guilty of attempted aggravated arson when such a finding was in violation of 

both Crim.R. 7(B) and 11(C)(2)(a). Specifically, Huston argues a review of the indictment 

and the trial transcript of his plea hearing indicates the trial court did not provide him "notice 

of the nature of the charge in Count II [attempted aggravated arson] sufficient to meet the 

requirements of Criminal Rules 11 and 7." We disagree. 

{¶ 17} Huston initially argues the trial court erred by finding him guilty in violation of 

Crim.R. 7(B) because the portion of the indictment charging him with attempted aggravated 

arson "does not state with particularity any element of the offense the State would be 

required to prove at trial." However, as a simple review of the record reveals, the indictment 

specifically referenced both R.C. 2909.02(A)(2) and 2923.02(A) and tracked the necessary 

statutory language to properly bring a charge of attempted aggravated arson. "[A]n 

indictment that tracks the language of the charged offense, that identifies an underlying 

offense by reference to the statute number, such as the case here, is not defective for it 

provides the defendant with adequate notice of the charges pending against him." State v. 

Clements, 12th Dist. Butler No. CA2009-11-277, 2010-Ohio-4801, ¶ 9. Therefore, contrary 

to Huston's claim otherwise, "[a]n indictment is not 'required to list the precise actions which 

constitute an offense.'" State v. Kolvek, 9th Dist. Summit Nos. 28141 thru 28145, 2017-

Ohio-9137, ¶ 5, quoting State v. Brust, 4th Dist. Pike No. 95CA551, 1995 Ohio App. LEXIS 

5681, *18 (Nov. 20, 1995). If Huston wanted to know the specific conduct alleged to support 

the attempted aggravated arson charge, Huston could have requested a bill of particulars. 

There is no bill of particulars in this case. 

{¶ 18} Huston also argues the portion of the indictment charging him with attempted 

aggravated arson was defective because it "referred only to Clinton County," and not the 
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specific address of the home that he attempted to burn down. However, the fact that that 

portion of the indictment referred only to "Clinton County" is of no consequence and fully 

complies with the requirements of R.C. 2941.03(D), which provides that "[a]n indictment or 

information is sufficient if it can be understood therefrom * * * [t]hat an offense was 

committed at some place within the jurisdiction of the court[.]" See, e.g., State v. Syed, 9th 

Dist. Medina Nos. 17CA0013-M and 17CA0014-M, 2018-Ohio-1438, ¶ 46 (finding sufficient 

an indictment listing the location where the crime occurred as "Medina County"). "Such a 

statement as to the location where a crime occurred is entirely sufficient." State v. Brust, 

4th Dist. Pike No. 95CA551, 1995 Ohio App. LEXIS 5681, *18 (Nov. 20, 1995), citing R.C. 

2941.03(D). Therefore, because the portion of the indictment charging Huston with 

attempted aggravated arson complied with the requirements of Crim.R. 7(B), Huston's first 

argument is without merit. 

{¶ 19} Huston next argues the trial court erred by finding him guilty in violation of 

Crim.R. 11(C)(2)(a), which, as relevant here, prohibits a trial court from accepting a no 

contest plea without first addressing the defendant personally and "[d]etermining that the 

defendant is making the plea voluntarily, with understanding of the nature of the charges 

and of the maximum penalty involved[.]" As previously noted by this court, in order for a 

trial court to determine that a defendant is entering a plea with an understanding of the 

nature of the charge, "[t]he trial court need not advise the defendant of the elements of the 

crimes; rather, it is sufficient if the totality of the circumstances warrant the trial court in 

making a determination the defendant understands the charges." State v. Goens, 12th Dist. 

Butler No. CA2005-06-174, ¶ 10; State v. Singh, 141 Ohio App.3d 137, 141 (11th 

Dist.2000), citing State v. Rainey, 3 Ohio App.3d 441, 442 (10th Dist.1982). 

{¶ 20} After a thorough review of the record, we find the trial court went to great 

lengths to ensure Huston was entering his no contest plea knowingly, intelligently, and 
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voluntarily with a full understanding of the nature of the charge at issue, attempted 

aggravated arson, and the maximum possible penalty involved. This included a detailed 

line-by-line review of the change of plea form Huston admittedly reviewed and signed after 

consulting with his attorney. Huston never indicated he did not understand the nature of 

the charge against him, nor is there anything in the record to indicate Huston did not so 

understand. Rather, as the record indicates, Huston acknowledged that he understood the 

charges, that he had gone over "everything" with his trial counsel, and that he would "just 

like to get this stuff over with" by entering his no contest plea. 

{¶ 21} "Appellate courts have found that trial courts substantially complied with their 

duty to determine that the defendant understands the charge in a wide variety of ways. For 

example, if the indictment is read into the record, substantial compliance can be shown." 

Goens at ¶ 13. Again, as the state noted on the record during the plea hearing regarding 

the attempted aggravated arson charge: 

Finally, on the 3rd day of October, this defendant did knowingly 

– or did with sufficient culpability in the commission of a violation 

of aggravated arson in violation of 2909.02(A)(2) of the Ohio 

Revised Code did engage in conduct that if successful would 

constitute or result in a violation of aggravated arson. 

{¶ 22} This language, albeit more concise, mirrors that of the indictment charging 

Huston with attempted aggravated arson, thereby establishing substantial compliance with 

Crim.R. 11(C)(2)(a) requiring the trial court to determine Huston understood the nature of 

the charges levied against him. Huston's argument to the contrary lacks merit. 

{¶ 23} Although not separately argued as part of his brief, see App.R. 12(A)(2), 

Huston states as part of this assignment of error that the trial court erred by finding him 

guilty due to a "defective indictment and recitation of facts." As noted above, we find the 

indictment in this case is in no way defective. Moreover, contrary to Huston's claim 

otherwise, "if the charging instrument stated facts constituting a crime," such as the case 
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here, "the absence of a recitation of these operative facts during the plea colloquy is not 

fatal to the state." State v. Bowsher, 116 Ohio App.3d 170, 172 (6th Dist.1996). That is 

exactly what occurred here. That is because, as this court has stated previously, "an 

indictment that tracks the language of the charged offense, that identifies an underlying 

offense by reference to the statute number, such as the case here, is not defective for it 

provides the defendant with adequate notice of the charges pending against him." State v. 

Clements, 12th Dist. Butler No. CA2009-11-277, 2010-Ohio-4801, ¶ 9. 

{¶ 24} In so holding, we note that "[a]lthough best practice might include a recitation 

of the circumstances of the offense, Crim. R. 11(C)(2)(a) merely requires that the trial court 

determine that the defendant who is tendering a plea of guilty or no contest understands 

the nature of the charge or charges to which he is pleading." State v. Kruger, 2d Dist. Miami 

No. 2005-CA-19, 2006-Ohio-2361, ¶ 41. Nothing in the record indicates Huston did not 

understand the nature of the charge at issue here. This is particularly true here when 

considering the affidavit in support of the complaint filed with the with the Clinton County 

Municipal Court, which, as noted above, contained the following as it relates to the 

underlying facts giving rise to the attempted aggravated arson charge: 

While checking the residence there was Tiki Torch fluid 

observed on the floor of the front porch, kitchen, and mud room 

areas. Huston was advised of his rights per-miranda [sic] and 

asked about the incident. Huston advised Darlene asked him to 

come in. So he walked through the front door and left with a 

bottle of wine. Detective Riley arrived on scene and processed 

the scene. A piece of Huston's shirt was located near the mud 

room covered in the Tiki Torch fluid. There was also a light[er] 

located next to the shirt. Upon further investigation, units 

observed the shirt had been on fire. There were marks 

observed a long [sic] the bottom of the door and up the door jam 

of the mud room. 

{¶ 25} "Unlike with respect to a misdemeanor offense to which a plea of no contest 

is entered, the [trial] court is not required to have before it a statement of the particular 
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conduct constituting the alleged offense when it accepts a defendant's plea of no contest to 

a felony charge." State v. Cooper, 168 Ohio App.3d 378, 2006-Ohio-4004, ¶ 6 (2d Dist.). 

However, where the state presents a statement of facts that "not only fails to include, but 

absolutely negative[s] the existence of, an essential element of the offense charged in the 

indictment," it is error for the trial court to find a defendant guilty based upon a plea of no 

contest. (Emphasis sic.) State v. Cohen, 60 Ohio App.2d 182, 184 (1st Dist.1978). That 

is simply not the case here for nothing about the state's recitation of facts absolutely negated 

the existence of an essential element of the attempted aggravated arson charge. 

{¶ 26} "[W]hen a defendant pleads no contest, he admits to 'the truth of the facts 

alleged in the indictment.'" State v. Geiger, 10th Dist. Franklin No. 15AP-1120, 2016-Ohio7571, ¶ 17, quoting Crim.R. 11(B)(2). In turn, "where the indictment, information, or 

complaint contains sufficient allegations to state a felony offense and the defendant pleads 

no contest, the court must find the defendant guilty." State v. Bird, 81 Ohio St.3d 582, 584 

(1998), citing State ex rel. Stern v. Mascio, 75 Ohio St. 3d 422, 425 (1996). Therefore, 

because the portion of indictment in this case charging Huston with attempted aggravated 

arson contains sufficient allegations to properly charge Huston with attempted aggravated 

arson, a third-degree felony, we find no error in the trial court's decision finding Huston guilty 

upon him entering a plea of no contest to that charge. Accordingly, having found no merit 

to any of the arguments raised by Huston herein, Huston's second assignment of error is 

overruled. 

{¶ 27} Judgment affirmed in part, reversed in part, and remanded to the trial court to 

issue the necessary nunc pro tunc judgment entries to correct the clerical errors in its 

applicable judgment entries of plea and sentence to note Huston entered a plea of no 

contest and not a plea of guilty. 
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 M. POWELL, J., concurs. 

PIPER, J., dissents. 

PIPER, J., dissenting. 

{¶ 28} The proper resolution of Huston's second assignment error requires the no 

contest plea to attempted aggravated arson be vacated and renders Huston's first 

assignment of error moot. Therefore, with respect for the opinion of my colleagues, I must 

dissent from the above opinion for the following reasons. 

{¶ 29} Before entering his no contest plea, Huston was informed by the court on 

numerous occasions that Huston would not be admitting to guilt of the crimes charged, but 

instead would only be admitting the truth of the facts. The trial court informed Huston that 

it would have the assistant prosecutor "recite the facts supporting each of the charges." 

{¶ 30} Being the routine practice throughout Ohio, the trial court was entirely correct 

in its intended procedure as explained to Huston. Despite the majority's persistent 

representation that the state presented a statement of facts, such simply did not occur. The 

majority goes on to hold "[i]f Huston wanted to know the specific conduct alleged to support 

[his charges], Huston could have requested a bill of particulars." This suggestion by the 

majority contains a concession that Huston was not made aware of the facts that were 

operative to the elements as listed in the indictment prior to his plea. 

{¶ 31} The trial court thoroughly explained a guilty plea is different than a no contest 

plea because a guilty plea admits guilt of the crime and a no contest plea only admits the 

truth of the facts. The majority opinion herein suggests that an indictment which attempts 

to track the statutory elements of a crime is the same as alleging the facts specific to the 

offense. I respectfully disagree with this suggestion. Were this to be true, there would be 

little meaningful difference in a no contest plea admitting the facts alleged and a guilty plea 
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which admits guilt of the generic elements of a crime found in the Ohio Revised Code. The 

Revised Code consists only of the legal elements comprising an offense, not the facts which 

caused the legal elements to take place. 

{¶ 32} When the facts of the case are recited and the defendant appeals following a 

no contest plea, the defendant can appeal and obtain a reversal if the recited facts do not 

support the offense. Grounds for appeal may also exist if the only facts produced are in the 

indictment and it fails to allege sufficient facts to constitute an offense. Katz, Martin, Lipton, 

Gianelli and Croker, Baldwins Ohio Practice Criminal Law, Section 80:21 (3d Ed.2014). 

{¶ 33} After emphasizing to Huston he would only be admitting the facts recited by 

the prosecutor, the situation was compounded by the trial court's representation to Huston 

that he would be "able to explain extenuating circumstances." Not only were no facts 

presented to Huston prior to entering his no contest plea, he was never given an opportunity 

to explain the circumstances he thought were extenuating. The majority fails to address 

the procedure which occurred and gives no significance to the trial court's representations 

and their failure to occur. 

{¶ 34} When the trial court asked the state to recite the facts involved in Huston's 

offense, the assistant prosecutor only placed in the record that Huston had engaged in 

conduct which if successful would have resulted in a violation of R.C. 2909.02(A)(2); 

aggravated arson. The assistant prosecutor placed no facts in the record relating to 

Huston's conduct in his attempt, nor any facts particular to the aggravated arson. This was 

violative of Crim.R. 11 and was not how the trial court explained the proceedings would 

unfold. 1 

 

1. We need only ask ourselves, what factually did Huston do to attempt an aggravate arson? After the state's 

recitation, the answer remains silent. The majority suggests that an affidavit found in the file acts as a 

substitute or supplement to the state's recitation; there is no case law that would support this proposition in 

light of the trial court's explanations given to Huston prior to his plea. 
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{¶ 35} With no facts in the indictment pertaining to Huston's commission of an 

attempted aggravated arson, Huston's no contest plea proceedings circumscribed Crim.R. 

11(B)(2). This process impermissibly undermined Huston's ability to understand and be 

informed because it contradicted what the trial court told Huston. Similarly, informing 

Huston that the proceedings would occur in a precise manner, and then permitting the 

proceedings to occur differently, violated Huston's right to due process which trial courts 

are inherently charged with providing. 

{¶ 36} The majority opinion isolates arguments in Huston's brief from the context of 

Huston's assignment of error and thereby misconstrues the assignment of error. Dissecting 

Huston's arguments from the context of the assignment of error does little to serve our 

appellate review. Even if Huston's arguments are difficult to follow, our role is to decide the 

assignment of error. See State v. Evans, 113 Ohio St.3d 100, 2007-Ohio-861, citing App.R. 

12(A)(1)(c). 

{¶ 37} Huston's assignment of error is not premised on the indictment being 

insufficient to give Huston notice of what the charges were against him. Nor is it based on 

the state's compliance with R.C. 2941.03(D). Nor is it about Huston's understanding the 

nature of the criminal charge or the absence of a colloquy regarding the plea form. The 

majority addresses all these issues well, citing an abundance of cases all of which are 

outside the context of a no contest plea or otherwise are dramatically different in their facts. 

{¶ 38} Huston's assignment of error is clear: no contest proceedings are not valid 

when there were no factual averments either in the indictment or recited by the prosecutor 

prior to the no contest plea being accepted. Merely concluding that Huston attempted a 

commission of R.C. 2909.02(A)(2) is not a factual recitation of his alleged conduct. While 

many indictments do contain factual representations, the indictment herein did not. Even 

more troubling is that the indictment contained incomplete language in providing the 
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elements for the type of aggravated arson attempted. Therefore, it was error for the trial 

court to accept Huston's plea of no contest. Crim.R. 11.2 

{¶ 39} Generally, an indictment in Ohio avers material facts constituting the elements 

of the offense. Geboy v. Brigano, 489 F.3d 752 (6th Cir.2007) citing State v. Sellards, 17 

Ohio St.3d 169 (1985). While many indictments contain facts and others do not, the generic 

statutory elements considered alone in the abstract are not facts particular to a defendant 

or the occurrence of a specific offense. Technically, elements constituting a criminal offense 

do not need to contain operative facts to meet the minimum requirements of sufficiency for 

purposes of an indictment. R.C. 2941.03 thru 2941.06 

{¶ 40} However, when indictments only allege a general, generic statutory violation, 

the defendant can resort to a bill of particulars ensuring he is apprised of the conduct he is 

accused of having committed. For purposes of a no contest plea, tracking the general legal 

elements of an offense and simply referring to a code section fails to give a defendant an 

awareness of the facts he is admitting in his plea. It is reversible error to proceed with 

sentencing on a no contest plea where the statement of facts is nonexistent or otherwise 

"incontestably deficient." State v. Cohen, 60 Ohio App.2d 182 (1st Dist.1978). Here, there 

were no facts given and therefore, the state's recitation was "incontestably deficient." 

{¶ 41} The majority construes Cohen for the proposition that the facts given in a no 

contest plea must negate a material element of the offense before being reversible error. 

The majority's application of Cohen is misguided because Cohen acknowledges that an 

omission of facts can negate a material element of the offense, thereby comprising 

reversible error. 

 

2. The indictment failed to list all the statutory elements as well as any facts revealing the type of aggravated 

arson which was attempted or how it was attempted. The failure to list the elements of an underlying felony 

can be rectified where the bill of particulars remedies the defective indictment. State v. Skatzes, 104 Ohio 

St.3d 195, 2004-Ohio-6391, ¶ 31. Unfortunately, here the court was given no facts on the record by way of 

bill of particulars or otherwise. 
Clinton CA2017-08-012 

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{¶ 42} It is well accepted, as the majority references, that a no contest plea "is an 

admission of the truth of the facts alleged in the indictment." State v. Bird, 81 Ohio St.3d 

582, 584 (1998). However, if no facts are recited in a felony case, this proposition of law 

requires that facts be contained within the indictment in order to support a conviction based 

upon a no contest plea. Keep in mind however, here, Huston was specifically told the state 

would recite the facts which he would be admitting. Not only is the indictment lacking in 

elements of the alleged offense, as pointed out by appellant in his brief, but no facts of 

Huston's conduct were recited prior the no contest plea.3

{¶ 43} The majority determines that an indictment which "tracks the language" of the 

Ohio Revised Code is sufficient for purposes of a no contest plea. The cases cited by the 

majority however, regarding black letter law, for the sufficiency of an indictment, Clements, 

Kovack, and Brust, do not involve no contest plea proceedings. In Clements, Kovack, and 

Brust, the defendants each had a trial and the issues generated were much different than 

the assignment of error presented herein. 

{¶ 44} Similarly, the cases relied upon by the majority regarding a defendant's 

understanding as to the nature of his charges are also of little assistance in that they do not 

involve no contest proceedings with an allegation of insufficient facts. State v. Goens, 12th 

Dist. Butler No. CA2005-06-174, ¶ 10 (prosecutor read detailed statement of facts); State 

v. Singh, 141 Ohio App.3d 137, 141 (11th Dist.2000) (involved an explanation to nonEnglish speaking defendant regarding constitutional and nonconstitutional rights in guilty 

plea proceeding); and State v. Rainey, 3 Ohio App.3d 441, 442 (10th Dist.1982) (prosecutor 

 

3. "A no contest plea admits only the truth of the facts alleged in the indictment * * *" and where the indictment 

did not allege any serious physical harm as a part of the robbery charge it was faulty to the consequence of 

the defendant being denied procedural due process because the only way the court could determine such 

element was factually established was if judicial factfinding occurred which is not permissible in conjunction 

with a no contest plea State v. Wilson, 11th Dist. Lake No. 2016-L-039, 2018-Ohio-902, ¶ 119 (Cannon, J., 

dissenting in part and concurring in part). (Emphasis sic.) 
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described the offense as having been committed with a firearm and "recited the facts" giving 

rise to defendant's indictment for murder). 

{¶ 45} The majority goes to great lengths to find a defendant's no contest plea is 

entered "voluntarily" where the defendant is denied the opportunity to hear on the record 

the facts he is admitting and denied the opportunity to address the extenuating 

circumstances. Both representations by the trial court were inducements understood by 

Huston prior to his plea. I find the denial of procedure misguided and violative of Crim.R. 

11(C)(2)(a) and (b). 

{¶ 46} Contributing to the absence of reasoning in affirming Huston's no contest 

proceedings is the majority's reference to an affidavit found in the file. This affidavit was 

not involved in the no contest proceedings, nor is there any indication it was shown to 

Huston as the facts he would be admitting. The state's brief attributes no significance to 

this affidavit relied upon by the majority and there is no indication the trial court considered 

it when finding Huston guilty. 

{¶ 47} Further, the majority relies upon State v. Cooper, 168 Ohio App.3d 378, 2006-

Ohio-4004, (2d Dist.) for the proposition that a felony no contest plea requires no facts be 

verbally recited. Significant in Cooper, however, is the fact that "at the plea proceeding the 

prosecutor proffered a copy of the police investigative report of Defendant's offense." Id. at

¶ 7. In other words, the trial court had factual content of the defendant's conduct entered 

into the no contest proceedings thereby making it unnecessary for the state to verbally 

recite what was in the report. 

{¶ 48} A perfunctory process such as the one herein violates Crim.R. 11 because it 

negates a significant difference between pleading guilty to a statutory offense as charged 

and pleading no contest, not to the statutory offense charged, but to the truth of the facts 

either as they are found in the indictment or as recited prior to the plea. A no contest plea 
Clinton CA2017-08-012 

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does not dispense with the need for a subsequent finding of guilty to be based upon the 

facts of the offense rather than the generic elements of the offense as summarily quoted 

from the Ohio Revised Code. 

{¶ 49} Therefore, Huston's assignment of error complaining of the lack of any facts 

in the indictment and in the state's recitation is well-taken. Huston was told he would hear 

a recitation of facts in court prior to entering his plea; he should receive no less. Additionally, 

Huston was told that he could respond to those facts and explain the extenuating 

circumstances; he should have been afforded that opportunity. While the majority opinion 

today may reduce the time and attention in Ohio courtrooms given to the details of a no 

contest plea, it does little for the procedural rights Ohio courts have previously stood 

steadfast in protecting. The lack of due process accorded Huston's plea renders such 

invalid as to the charge of attempted aggravated arson and the matter should be reversed 

and remanded for further proceedings accordingly.