[Cite as State v. Gomez, 2017-Ohio-8832.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 16AP-560 

 (C.P.C. No. 15CR-3965) 

v. : 

 (REGULAR CALENDAR) 

Julio H. Gomez, : 

 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 5, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and 

Barbara A. Farnbacher, for appellee. Argued: Barbara A. 

Farnbacher. 

On brief: Yeura R. Venters, Public Defender, and John W. 

Keeling, for appellant. Argued: John W. Keeling. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} This is an appeal by defendant-appellant, Julio H. Gomez, from a judgment 

of conviction and sentence entered by the Franklin County Court of Common Pleas 

following his entry of a guilty plea to nine counts of trafficking in heroin and one count of 

engaging in a pattern of corrupt activity. 

{¶ 2} On August 14, 2015, appellant was indicted on one count of engaging in a 

pattern of corrupt activity, in violation of R.C. 2923.32 (a felony of the first degree), seven 

counts of trafficking in heroin, in violation of R.C. 2925.03 (all felonies of the first degree), 

one count of trafficking in heroin, in violation of R.C. 2925.03 (a felony of the second 

degree), and one count of trafficking in heroin, in violation of R.C. 2925.03 (a felony of the 

third degree). The indictment also named four co-defendants. 
No. 16AP-560 2 

{¶ 3} On May 16, 2016, appellant appeared before the trial court and entered a 

plea of guilty to all ten counts of the indictment. During the plea proceedings, the 

prosecutor gave the following recitation of the facts, beginning with Count 2 of the 

indictment. According to the prosecutor, the events giving rise to Count 2 occurred on 

June 30, 2015, after detectives with the Columbus Police Department identified "the 

group that was indicted in this case involving [appellant] and his co-defendants." On that 

date, co-defendant Manuel Montero, characterized by the prosecutor as a "runner" 

dispatched by appellant, "sold over 50 grams of heroin to * * * Richard Adams." Adams 

was detained by detectives "and found in possession of the heroin." (May 16, 2016 Tr. 

at 9.) 

{¶ 4} The group remained under surveillance, and the events giving rise to 

Count 3 occurred "[t]wenty-one days later," when detectives "observed a similar narcotics 

trafficking incident with Joseph Martini," whereby "Martini would call [appellant] and 

Montero did the sale [for] over 250 grams of heroin." (May 16, 2016 Tr. at 9, 10.) With 

respect to Count 4, the prosecutor related that "Martini became an informant after his 

first arrest and made a controlled purchase from the same two individuals for over 50 

grams of heroin on July 28, 2015." Count 5 involved "an additional sale to the informant 

of greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.) 

{¶ 5} The conduct giving rise to Counts 6, 7, 8, 9, and 10 of the indictment 

occurred on August 5, 2015, as "[s]earch warrants were executed at about six or seven 

locations identified as either the places in which the defendants were sleeping, where they 

were obtaining the drugs, cutting up the drugs or storing the drugs and money." 

Specifically, Count 6 involved "one of the locations [that] had numerous kilos of heroin 

that was used as a storage location by this group." With respect to Count 7, heroin was 

discovered in "the co-defendant's car with him" (i.e., specifically, co-defendant Omar 

Sanchez). (May 16, 2016 Tr. at 10.) 

{¶ 6} The prosecutor represented that Count 8 was for "another of the locations 

and that was greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.) Count 9 

involved the discovery of heroin at "another storage location, greater than 250 grams." 

Finally, Count 10 involved the recovery of "greater than ten grams" of heroin at the home 

of co-defendant Sanchez. (May 16, 2016 Tr. at 11.) 
No. 16AP-560 3 

{¶ 7} Regarding the facts giving rise to Count 1, the prosecutor related that 

appellant "would take calls from customers and dispatch Montero to facilitate the 

trafficking in heroin for this group on more than two occasions for the RICO offense." 

The prosecutor further related that the heroin "was being sold for about 900 to $1,100 an 

ounce," and that "each of these transactions was for about $9,000 or so." (May 16, 2016 

Tr. at 11.) 

{¶ 8} Following the recitation of facts, the trial court engaged in a colloquy with 

appellant regarding his plea. The trial court accepted appellant's guilty plea, ordered a 

presentence investigation report and scheduled a sentencing hearing date. 

{¶ 9} The trial court conducted a sentencing hearing on June 23, 2016. During 

the hearing, the trial court noted that, at the time of the May 16, 2016 plea hearing, "the 

Court incorrectly advised the defendant regarding the maximum possible sentence in this 

case." (June 23, 2016 Tr. at 2.) Specifically, the court noted: 

The flaw was related to Count Seven where it was originally 

pled as an F-1, requiring - - or having the maximum of 11 years 

of mandatory prison time. However, Count Seven is actually 

an F-3 and on the previous guilty plea it was listed as both. 

And on the previous guilty plea * * * the Court previously 

advised Mr. Gomez that his maximum prison sentence that 

was possible was 110 years when in actuality, the maximum 

prison sentence that's possible for Mr. Gomez is less than 110 

years and is actually 99 years. 

(June 23, 2016 Tr. at 2-3.) 

{¶ 10} The trial court inquired of appellant whether he understood, and appellant 

responded affirmatively. Defense counsel represented to the court that he had explained 

this development to appellant "outside of the courtroom." Defense counsel further stated 

on the record: "We would waive any defect in the plea, proceed on the plea as originally 

entered, but with this amendment obviously to his benefit." (June 23, 2016 Tr. at 4.) 

{¶ 11} The prosecutor, "out of [an] abundance of caution," noted that the trial 

court, at the time of the plea, "indicated there were no promises as to sentencing," and 

that defense counsel "had indicated an approximate range" of sentence "pursuant to offthe-record discussions." (June 23, 2016 Tr. at 5-6.) The prosecutor further noted that, 

based on subsequent events, "the Court has become aware more fully of the facts of this 

case, as well as the existence of a previously unknown significant record." The prosecutor 
No. 16AP-560 4 

then represented to the court: "In case the defendant is not sentenced in the range that 

was indicated by [defense counsel], we want you to make sure that the defendant has the 

opportunity, if he wishes, to withdraw his guilty plea." (June 23, 2016 Tr. at 6.) 

{¶ 12} In response, defense counsel stated: "I have told my client today that 

because of the facts that came out during the presentence report and specifically this 

arrest and deportation that the Court wasn't aware of, that may not be the range." 

Defense counsel also represented that he told his client "he would be able to withdraw his 

plea, but that * * * plea negotiations would probably stop and this will be set for trial and 

go that route." (June 23, 2016 Tr. at 7.) Defense counsel stated that his client wanted to 

proceed "with the sentencing today with this amendment." (June 23, 2016 Tr. at 8.) The 

trial court then inquired of appellant whether he wished to proceed with sentencing, and 

appellant responded affirmatively. 

{¶ 13} By decision and entry filed August 23, 2016, the trial court sentenced 

appellant to an aggregate term of 22 years imprisonment. The court's entry also indicated 

that appellant was subject to a mandatory five-year term of post-release control. 

{¶ 14} On appeal, appellant sets forth the following two assignments of error for 

this court's review: 

[I.] THE STATE ERRED WHEN IT CREATED FIVE 

SEPARATE CHARGES OUT OF THE SIMULTANEOUS 

POSSESSION OF THE SAME DRUG FOUND AT SEPARATE 

LOCATIONS INSTEAD OF AGGREGATING THE AMOUNTS 

INTO A SINGLE OFFENSE. THE TRIAL COURT 

CONSEQUENTLY ERRED WHEN IT FAILED TO 

PROPERLY ADVISE THE DEFENDANT ON THE 

MAXIMUM PENATLY OF THE CHARGES, THE NATURE 

OF THE CHARGES, AND THE EFFECTS OF THE PLEA, AS 

A RESULT OF THE FAILURE TO MERGE THE FIVE 

CHARGES INTO A SINGLE OFFENSE. 

[II.] THE TRIAL COURT ERRED WHEN IT FAILED TO 

COMPLY WITH CRIM.R. 11 BY INFORMING THE 

DEFENDANT THAT HE COULD NOT BE COMPELLED TO 

TESTIFY AGAINST HIMSELF AT TRIAL. 

{¶ 15} Under the first assignment of error, appellant challenges Counts 6 through 

10 of the indictment as multiplicitous, arguing that the counts involved the same type of 

drug (i.e., heroin), found on the same date at five different locations. Appellant argues 

that, based on plaintiff-appellee, the State of Ohio's, recitation of the facts, police officers 
No. 16AP-560 5 

executed search warrants on August 5, 2015 at seven apartments and one storage locker, 

and heroin was found at five of the locations, constituting grounds for Counts 6 through 

10 of the indictment. Appellant maintains that the above facts give rise to the legal issue 

of whether the state can file separate charges for simultaneous possession of the same 

type of drug found at different locations, or whether the state was required to aggregate 

the drugs into a single offense. 

{¶ 16} At the outset, we note the state raises the issue of whether appellant has 

waived his claim that the indictment was multiplicitous by failing to raise an objection to 

the indictment and by entering a guilty plea to the offenses at issue. In support, the state 

relies on State v. Conn, 12th Dist. No. CA2014-04-059, 2015-Ohio-1766, ¶ 47, in which 

the court held the defendant waived any claim that his 50-count indictment was defective 

and multiplicitous by failing to raise alleged defects in the indictment prior to entering his 

guilty plea. The state also cites this court's decision in State v. Fortner, 10th Dist. No. 

08AP-191, 2008-Ohio-5067, ¶ 10 (holding that "[b]ecause appellant pled guilty to six 

counts of aggravated robbery as charged in his indictment, he has waived his right to 

challenge alleged defects in the indictment"). The state, however, acknowledges that 

appellant has also raised a merger argument (which, when not raised in the trial court, 

operates as a forfeiture, not waiver, of all but plain error). See State v. Rogers, 143 Ohio 

St.3d 385, 2015-Ohio-2459, ¶ 19-21. 

{¶ 17} Accepting, for purposes of argument, that appellant has not waived the 

issue of multiplicity, we disagree with his contention that the state was precluded from 

charging him with multiple counts of trafficking based on conduct occurring on the same 

date. In general, "[a]n indictment is multiplicitous where it charges a single offense in 

multiple counts." State v. Hendrix, 11th Dist. No. 2011-L-043, 2012-Ohio-2832, ¶ 51. In 

this respect, the " 'vice of a multiplicitous indictment lies in the possibility of multiple 

punishments for a single offense in violation of the cumulative punishment branch of the 

Double Jeopardy Clause of the Fifth Amendment.' " Id., quoting State v. Childs, 88 Ohio 

St.3d 558, 561 (2000). 

{¶ 18} Even if counts are multiplicitous, "merging them for purposes of sentencing, 

pursuant to R.C. 2941.25, will cure any threat of double jeopardy." Id. Thus, under Ohio 

law, "the state may charge a defendant with multiple counts for multiple offenses, based 

upon the criminal conduct of the defendant." Conn at ¶ 48. Specifically, R.C. 2941.25, 
No. 16AP-560 6 

which "codifies the protections of the Double Jeopardy Clause of the United States and 

Ohio Constitutions, clearly provides that 'where the same conduct by defendant can be 

construed to constitute two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant may be 

convicted of only one." (Emphasis sic.) Id., quoting R.C. 2941.25.

{¶ 19} R.C. 2925.03 sets forth the offense of trafficking in drugs, and states in part: 

(A) No person shall knowingly do any of the following: 

* * * 

(2) Prepare for shipment, ship, transport, deliver, prepare for 

distribution, or distribute a controlled substance or a 

controlled substance analog, when the offender knows or has 

reasonable cause to believe that the controlled substance or a 

controlled substance analog is intended for sale or resale by 

the offender or another person. 

{¶ 20} As noted, appellant contends Counts 6 through 10 of the indictment are 

multiplicitous as involving the simultaneous possession of the same contraband. In 

support, appellant relies on federal cases holding that possession of drug stashes 

recovered on the same day constitute a single offense under the federal statute for 

possession with intent to distribute (21 U.S.C. 841(a)(1)). See, e.g., United States v. 

Stephens, 118 F.3d 479 (6th Cir.1997); Thompson v. United States, N.D.N.Y. No. 3:04-

CV-1321 (May 2, 2005); United States v. Clay, 355 F.3d 1281 (11th Cir.2004); United 

States v. Woods, 568 F.2d 509 (6th Cir.1978).1 

{¶ 21} As observed by the state, however, under Ohio law, the primary legislative 

statement on multiplicity is set forth in R.C. 2941.25, which addresses allied offenses of 

similar import. See, e.g., State v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-5977, ¶ 8 

 

1 We note, however, a number of federal courts have held that convictions for multiple counts of possession 

on the same date involving distinct stashes of drugs do not raise multiplicity or double jeopardy issues. See, 

e.g., State v. Maldonado, 849 F.2d 522, 524 (11th Cir.1988) (two-count indictment for possession with 

intent to distribute on same date not multiplicitous where two separate stashes, each with a different 

quantity of cocaine, were found in separate locations); Davis v. Berghuis, E.D.Mich. No. 2:07-CV-10129 

(Apr. 30, 2008) (convictions for possession with intent to deliver 225-650 grams of cocaine and possession 

with intent to deliver less than 50 grams of cocaine, where one stash found on defendant and another found 

in bedroom on same date, did not violate double jeopardy); United States v. Williams, 339 Fed.Appx. 654, 

658 (7th Cir.2009) (although defendant was convicted of "two counts charging him with possessing a 

controlled substance on the same day, his convictions raise no issue of multiplicity" where prosecution 

proved defendant possessed 100 grams of crack cocaine found in aerosol can found in car and he also 

possessed 240 grams of cocaine in apartment). 
No. 16AP-560 7 

("In Ohio, R.C. 2941.25 codifies federal and state constitutional protections."); State v. 

Painter, 12th Dist. No. CA2014-03-022, 2014-Ohio-5011, ¶ 17 ("the remedy for a 

multiplicitous indictment is to analyze the charges according to the allied offenses statute, 

R.C. 2941.25"). 

{¶ 22} Further, as earlier noted, "[a]n accused's failure to raise the issue of allied 

offenses of similar import in the trial court forfeits all but plain error." Rogers at ¶ 3. 

Forfeited error "is not reversible error unless it affected the outcome of the proceeding 

and reversal is necessary to correct a manifest miscarriage of injustice." Id. In considering 

whether plain error has occurred, "an accused has the burden to demonstrate a 

reasonable probability that the convictions are for allied offenses of similar import 

committed with the same conduct and without a separate animus." Id. In the absence of 

such a showing, "the accused cannot demonstrate that the trial court's failure to inquire 

whether the convictions merge for purposes of sentencing was plain error." Id. 

{¶ 23} In the instant case, the state argues that appellant cannot demonstrate plain 

error where the facts indicate Counts 6 through 10 involve varying amounts of heroin 

discovered at multiple different locations. We agree. 

{¶ 24} Under Ohio law, the fact that drugs may have been recovered on the same 

date is not dispositive of the allied offense issue. See State v. Lewis, 12th Dist. No. 

CA2008-10-045, 2012-Ohio-885, ¶ 21 (two trafficking offenses occurring on same date 

not allied offenses of similar import where defendant sold less than 5 grams of cocaine to 

an undercover officer and then, after leaving scene, was stopped by law enforcement 

officers who found cocaine that defendant had discarded at the time he was stopped). See 

also State v. Williams, 5th Dist. No. 11-CA-115, 2012-Ohio-3211, ¶ 20 (rejecting argument 

that sale of drugs (psilocybin/psilocin mushrooms) and possession of same type of drugs 

on same date constitute same conduct or animus; act of "selling or offering was separated 

in time and space from the possession of different mushrooms in a different bag in a 

different location"); State v. Ward, 3d Dist. No. 13-10-11, 2011-Ohio-254, ¶ 29 

(convictions for trafficking in marijuana not allied offenses; although the three sales of 

marijuana all took place on same date, they were separate sales and thus "stemmed from 

three separate transactions"). 

{¶ 25} Here, the limited record on appeal indicates that law enforcement officials 

recovered differing quantities of heroin in different locations on the date at issue. 
No. 16AP-560 8 

Specifically, according to the state's sentencing hearing memorandum and the recitation 

of facts provided during the plea hearing, the following amounts of heroin were recovered 

at the following locations: (1) 8,083 grams of heroin located on Chestnut Ridge Loop, 

(2) 1,041 grams of heroin at an apartment located on Freedom Crossing, (3) 9.6 grams of 

heroin at an apartment located on Glenmore Way, (4) 950.6 grams of heroin located on 

Taliesin Place, and (5) 154.3 grams of heroin located on Pendergrast Place. On review, we 

agree with the state that, where the facts presented indicate the recovery of stashes found 

at separate locations, involving different quantities of drugs, appellant has not shown a 

reasonable probability that the convictions at issue are allied offenses of similar import 

committed with the same conduct and without a separate animus. Rogers at ¶ 3. Thus, 

appellant cannot demonstrate the trial court's failure to inquire whether the convictions 

merged for purposes of sentencing constituted plain error. Id. 

{¶ 26} Appellant also contends the failure to properly merge the offenses into a 

single offense also adversely affected the voluntary and knowing nature of the plea 

proceedings on grounds he was erroneously advised the maximum penalty he was facing 

was 99 years (instead of, according to appellant, 66 years had the offenses merged). 

Having found, however, that appellant has failed to demonstrate plain error as to the 

merger issue, we find no merit with his claim that the trial court's failure to merge the 

offenses affected the plea proceedings. 

{¶ 27} Based on the foregoing, appellant's first assignment of error is without merit 

and is overruled. 

{¶ 28} Under the second assignment of error, appellant argues the trial court erred 

in failing to strictly comply with Crim.R. 11 by not properly advising him of his right 

against self-incrimination. Specifically, appellant contends the trial court failed to inform 

him that he could not be compelled to testify against himself. 

{¶ 29} Crim.R. 11(C)(2) states as follows: 

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 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 
No. 16AP-560 9 

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. 

{¶ 30} Certain rights enunciated under Crim.R. 11(C)(2) are constitutional rights of 

which a defendant must be personally informed, i.e., "(1) the right to a jury trial, (2) the 

privilege against self-incrimination, (3) the right to compulsory process, and (4) the right 

to confront one's accuser's." State v. McKee, 11th Dist. No. 97-T-0036 (June 19, 1998). A 

trial court "must strictly comply with those provisions of Crim.R. 11(C) that relate to the 

waiver of constitutional rights." State v. Hussing, 8th Dist. No. 97972, 2012-Ohio-4938, 

¶ 19. 

{¶ 31} Strict compliance, however, does not require a "rote recitation of Crim.R. 

11(C)," and a trial court's "failure to use the exact language of the rule is not fatal to the 

plea. Rather, the focus, upon review, is whether the record shows that the trial court 

explained or referred to the right in a manner reasonably intelligible to that defendant." 

State v. Ballard, 66 Ohio St.2d 473, 480 (1981). Thus, while the preferred method of 

advising a criminal defendant of his or her constitutional rights during the plea colloquy is 

to utilize the language contained in Crim.R. 11(C), "a trial court's failure to literally comply 

with Crim.R. 11(C) does not invalidate a plea agreement if the record demonstrates that 

the trial court explained the constitutional right ' "in a manner reasonably intelligible to 

that defendant." ' " (Emphasis added in Veney.) State v. Barker, 129 Ohio St.3d 472, 

2011-Ohio-4130, ¶ 14, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 27, 

quoting Ballard at 473. 
No. 16AP-560 10 

{¶ 32} A review of the plea hearing in the instant case indicates that, as part of 

those proceedings, the trial court engaged in the following colloquy with appellant: 

THE COURT: Do you understand you have the right to a trial 

by a jury of 12 people. 

THE INTERPRETER: Yes. 

THE COURT: Do you understand you could waive your right 

to a jury and have me decide this matter instead? 

THE INTERPRETER: Yes. 

THE COURT: Do you understand that the decision to go to 

trial or plead guilty today rests entirely with you? 

THE INTERPRETER: Yes. 

THE COURT: Do you understand if you went to trial, the 

prosecution would have to prove your guilt beyond a 

reasonable doubt? 

THE INTERPRETER: Yes. 

THE COURT: Do you understand that you would have the 

right to face and question witnesses, and to call or compel 

witnesses to come in and testify on your behalf? 

THE INTERPRETER: Okay. Okay. Yeah. 

THE COURT: Do you understand that you could testify on 

your own behalf or not have your silence used against you if 

you chose not to testify? 

THE INTERPRETER: Yes. 

THE COURT: Do you understand you would have the 

automatic right to appeal a verdict rendered by a jury or by 

me? 

THE INTERPRETER: Yes. 

THE COURT: And that by pleading guilty today you're giving 

up that right? 

THE INTEPRETER: Yes. 
No. 16AP-560 11 

THE COURT: Okay. Do you have any questions about any of 

the rights we just discussed? 

THE INTERPRETER: No. 

(May 16, 2016 Tr. at 20-22.) 

{¶ 33} In asserting the trial court did not adequately inform him of his privilege 

against self-incrimination, appellant challenges the following language (cited above) by 

the court: "Do you understand that you could testify on your own behalf or not have your 

silence used against you if you chose not to testify?" (May 16, 2016 Tr. at 21.) 

{¶ 34} Ohio courts, however, have addressed and rejected challenges involving 

similar colloquy language. Under the facts in State v. Bassett, 8th Dist. No. 90887, 2008-

Ohio-5597, ¶ 17, the trial court advised the defendant in part: "[Y]ou can choose not to 

testify and the prosecutor could not comment upon that fact in violation of your 5th 

Amendment right." The defendant in Bassett argued that the plea was invalid because the 

trial court did not inform her that "she could not be compelled to testify against herself if 

she chose to go to trial." Id. at ¶ 8. The court in Bassett disagreed, holding that "the 

court's wording that appellant could choose not to testify is the equivalent of saying that 

the state could not compel her to testify and amounts to strict compliance under Crim.R. 

11(C)(2)." Id. at ¶ 20. 

{¶ 35} In State v. Scanlon, 5th Dist. No. 95-134 (June 29, 1998), the appellant 

argued the trial court's advice on the constitutional right not to testify was flawed because 

the court failed to inform him the state could not compel him to testify against himself. 

Under the facts of that case, the trial court advised the appellant that, if he pled no 

contest, he was "waiving his right to testify at trial if he wanted to, or refuse to testify if he 

did not wish to." On appeal, the court in Scanlon rejected the appellant's argument, 

holding that the trial court had complied with Crim.R. 11. See also State v. Finney, 8th 

Dist. No. 99646, 2014-Ohio-1054, ¶ 13 (trial court strictly complied with Crim.R. 11 in 

informing defendant that "he had the right to choose not to testify and that no one could 

use his silence in any way"); State v. Adams, 8th Dist. No. 70045 (May 22, 1997) (trial 

court complied with Crim.R. 11(C) by advising defendant he had "the right to testify or to 

choose not to testify"). 

{¶ 36} This court has also addressed and rejected similar challenges. In State v. 

Truitt, 10th Dist. No. 10AP-795, 2011-Ohio-2271, ¶ 12, the appellant argued the trial court 
No. 16AP-560 12 

had failed to advise him of the privilege against compulsory self-incrimination when it 

informed him that, by entering a guilty plea, he was waiving the "right to remain silent." 

The appellant in Truitt argued on appeal "that the trial court merely explained to 

[appellant] that he was giving up the right to remain silent and did not adequately explain 

to [appellant] that he could not be compelled by the state to testify on his own behalf." 

(Emphasis sic.) Id. at ¶ 15. In rejecting appellant's argument, this court held that "[t]he 

plain meaning of the trial court's words suggest that appellant had the right to say 

absolutely nothing at trial, if he so desired." Id. at ¶ 21. This court also noted that "the 

trial court inquired whether appellant had any questions regarding the colloquy, and 

appellant answered 'no, sir.' " Id. Based on the record presented, this court concluded the 

trial court "explained waiver of the privilege against self-incrimination in a reasonably 

intelligent manner and in strict compliance with Crim.R. 11(C)(2)(c)." Id. 

{¶ 37} In State v. Allen, 10th Dist. No. 11AP-640, 2012-Ohio-2986, the appellant 

argued the trial court failed to strictly comply with Crim.R. 11(C)(2)(c) in explaining the 

constitutional privilege against compulsory self-incrimination. Under the facts of Allen, 

the trial court, analogous to the facts in Truitt, had advised the appellant that his rights 

included "the right to remain silent." Id. at ¶ 17. In Allen, this court relied on Truitt in 

holding the trial court's advisement of appellant's right to remain silent "intuitively means 

that, if appellant chose to remain silent, appellant would opt to engage his privilege 

against self-incrimination and not testify against himself." Allen at ¶ 18. Thus, this court 

concluded that "the trial court explained appellant's privilege against compulsory selfincrimination in a reasonably intelligible manner." Id. 

{¶ 38} We note that federal courts have observed that "[t]he words 'compelled' and 

'self-incrimination' need not be ritualistically invoked." United States v. Loutos, 284 

F.Supp.2d 942, 955 (N.D.Ill.2003). In Loutos, the defendant argued that he was "not 

advised of 'the right against compelled self-incrimination.' " Id. Under the facts of that 

case, the defendant "responded affirmatively to the questions: 'Do you understand that 

you would have a right to testify if you wished to do so? However, if you wish to remain 

silent, your silence could not be used against you?' " Id. at 954. The court in Loutos 

rejected the defendant's Fed.Crim.R. 11 challenge, holding that "[b]eing able to remain 

silent and not have it used against the defendant is the right against compelled selfincrimination." Id. at 955. 
No. 16AP-560 13 

{¶ 39} In the present case, in addition to the plea colloquy cited above, appellant 

also signed a guilty plea form delineating the rights he was waiving. While the written 

plea form is not a substitute for the trial court's requirement under Crim.R. 11(C), the 

Supreme Court of Ohio has held that "when a trial court addresses all the constitutional 

rights in the oral colloquy, a reviewing court should be permitted to consider additional 

record evidence to reconcile any alleged ambiguity in it." Barker at ¶ 24. Thus, "an 

alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to 

other portions of the record, including the written plea, in determining whether the 

defendant was fully informed of the right in question." Id. at ¶ 25. 

{¶ 40} In the present case, appellant signed the guilty plea form which, as noted by 

the state, included an explanation that, by pleading guilty, he was waiving a number of 

constitutional rights, including "the right to have a trial by jury, * * * at which I cannot be 

compelled to testify against myself." Appellant acknowledged before the trial court that, 

prior to signing the guilty plea form, he had reviewed it with his counsel, and his counsel 

explained the contents of the document and answered any questions he had. 

{¶ 41} As to the Crim.R. 11 plea colloquy, the record indicates the trial court 

engaged in a meaningful dialogue with appellant, and we conclude the court explained his 

constitutional rights, including the privilege against self-incrimination, in a reasonably 

intelligible manner. Accordingly, we find the trial court complied with the requirements 

of Crim.R. 11(C)(2)(c) in accepting the plea. 

{¶ 42} Appellant's second assignment of error is not well-taken and is overruled. 

{¶ 43} Based on the foregoing, appellant's two assignments are overruled, and the 

judgment of the Franklin County Court of Common Pleas is hereby affirmed. 

Judgment affirmed. 

SADLER and HORTON, JJ., concur. 

___________________