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

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

STATE OF OHIO, 

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

 v. 

THOMAS J. DONEGAN, O P I N I O N 

 

 DEFENDANT-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. CRI 20162155 

Judgment Affirmed 

Date of Decision: November 13, 2017 

 

APPEARANCES: 

 

Michael J. Short for Appellant 

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

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ZIMMERMAN, J. 

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

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

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

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

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

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

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

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

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

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

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

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

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

(Doc. 26). 

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

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

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

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

Plea Tr. Pg. 2). At the plea hearing Donegan signed a “Waiver of rights and plea of 
Case No. 6-17-05 

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

plea, the trial court found him guilty of Gross Sexual Imposition, and ordered a presentence investigation (“PSI”) report. (Doc. 31). 

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

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

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

following assignment of error. 

ASSIGNMENT OF ERROR 

THE DEFENDANT’S PLEA WAS NOT GIVEN KNOWINGLY, 

INTELLIGENTLY, AND VOLUNTARILY. 

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

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

voluntarily. 

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

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

renders enforcement of the plea unconstitutional under both the United States 

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

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

{¶10} Crim.R. 11(C) states: 

(2) In felony cases the court may refuse to accept a plea of guilty 

or a plea of no contest, and shall not accept a plea of guilty 
Case No. 6-17-05 

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or no contest without first addressing the defendant 

personally and doing all of the following: 

(a) Determining that the defendant is making the plea 

voluntarily, with understanding of the nature of the charges 

and of the maximum penalty involved, and if applicable, that 

the defendant is not eligible for probation or for the 

imposition of community control sanctions at the sentencing 

hearing. 

(b) Informing the defendant of and determining that the 

defendant understands the effect of the plea of guilty or no 

contest, and that the court, upon acceptance of the plea, may 

proceed with judgment and sentence. 

(c) Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the 

rights to jury trial, to confront witnesses against him or her, 

to have compulsory process for obtaining witnesses in the 

defendant’s favor, and to require the state to prove the 

defendant’s guilt beyond a reasonable doubt at a trial at 

which the defendant cannot be compelled to testify against 

himself or herself. 

{¶11} “[A] trial court must strictly comply with Crim.R. 11(C)(2)(c) and 

orally advise a defendant before accepting a felony plea that the plea waives the 

defendant’s constitutional rights.” State v. Ackley, 12th Dist. Madison No. CA2013-

04-010, 2014-Ohio-876, citing Veney, at ¶31. “When a trial court fails to strictly 

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

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

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

substantial-compliance standard based upon the totality of the circumstances 
Case No. 6-17-05 

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surrounding the defendant’s plea and determines whether he subjectively 

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

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

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

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

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

108 (1990). 

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

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

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

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

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

Court: Mr. Donegan, is that your understanding – that 

you’re prepared to enter a plea to the one count, is that what 

you’re gonna do today? 

Defendant: Yes sir. 

* * * 

Court: Alright. You can turn the page sir. Do you 

understand, Mr. Donegan, when you plead guilty to a criminal 

charge, one of the effects of that plea of guilty is that you, in 

essence, are admitting the facts that form the basis for that charge 

* * *. Do you understand that? 

Defendant: Yes sir. 
Case No. 6-17-05 

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Court: Do you understand, Mr. Donegan, if I accept your 

plea today, I legally have the right to go ahead and sentence you 

today if I want to do that. Do you understand that? 

Defendant: Yes sir. 

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

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

Court: Alright. Do you understand, Mr. Donegan, that you 

share with every citizen in the State of Ohio the right, having been 

charged with a crime, you have the right to have your guilt or 

your innocence on this charge determined not by one person, not 

by me alone, but you have a right to have a jury of twelve citizens 

of Hardin County chosen – they would be chosen by you and your 

attorney, as well as the State’s attorney, and once chosen, those 

twelve citizens – we call them a jury – they would be the ones that 

would determine if you’ve broken the law. So you understand 

you have a complete right to a trial by jury? 

Defendant: Yes sir. 

Court: Alright. Do you understand by entering this plea of 

guilty that you’re giving up your right to a jury trial? 

Defendant: Yes sir. 

Court: Do you understand if you wanted to have a trial, we 

would all expect the State, the prosecutor, would call witnesses to 

try to prove its case against you? Do you understand for every 

witness the State would use, you have a right to see that witness 

and question that witness? 

Defendant: Yes. 

* * * 

Court: Alright. So do you understand by entering these 

pleas of guilty, this one plea of guilty – excuse me – you’re giving 
Case No. 6-17-05 

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up your right to see and question all of the State’s witnesses, 

you’re also giving up your right to make people come to court to 

be your witness. Do you understand all of that? 

Defendant: Uh 

Court: Let me break it down. Do you understand that 

you’re not going to be able to see and question any of the State’s 

witnesses, because when you plead guilty they won’t use any 

witnesses? Do you understand that? 

Defendant: Yes sir. 

Court: And you also understand by pleading guilty you 

won’t be bringing witnesses in to determine whether you 

committed this crime, you’re just admitting it. Do you 

understand that? 

Defendant: Yes sir. 

* * * 

Court: Alright. Do you understand that by entering this 

plea you’re giving up your right to a trial? 

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

Court: Correct. This is what you do when you choose not to 

have a jury trial. That’s what we’re going through now. There 

won’t be a trial. Is that what you understand? 

Defendant: Yes. 

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

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

Crim.R. 11(C)(2)(b): 
Case No. 6-17-05 

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Court: * * * What I’m saying is at the moment legally you 

are still innocent, but as soon as we go through this process you 

will no longer be considered innocent of this charge. Do you 

understand that? 

Defendant: Yes sir. 

* * * 

Court: Alright. So do you understand that you would not 

have to testify if there was a trial? Do you understand that? 

Defendant: Yeah. 

Court: Nobody can make you speak. 

Defendant: I understand. 

* * * 

Court: * * * Are you making this plea because someone is 

threatening you or forcing you to do it, or are you doing this 

because it’s your decision? 

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

Court: Alright. That’s what I want to ask, because I want 

to make sure nobody is making you do this. 

Defendant: No. 

Court: Alright. Very good. And are you doing this, Mr. 

Donegan, knowing that there is no decision as to what my sentence 

would be? There’s absolutely no decision. That remains to be 

seen. Do you understand that? 

Defendant: Yes sir. 

* * * 
Case No. 6-17-05 

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Court: Mr. Donegan, having gone through this whole 

process now, to the count of gross sexual imposition, as I said, do 

you plead guilty or not guilty? 

Defendant: Well on that I pleaded guilty. 

* * * 

Court: So to the charge of gross sexual imposition 

Defendant: I’m guilty. 

Court: Alright. So then the Court’s going to find – first of 

all I have to decide whether I think you’re acting voluntarily, and 

you’ve convinced me you are acting voluntarily, and that 

nobody’s making you do anything 

Defendant: No. 

Court: Very good. I understand. And that you are doing 

this without any knowledge of what the sentence will be, so the 

Court finds you’re doing voluntary action. I also find you have 

been given all of your constitutional and statutory rights, and 

you’ve questioned me about many of those and have then 

answered the questions appropriately. So the Court’s going to 

find that you have acknowledged that you understand your rights 

and therefore the Court is going to find that your plea to count 

two of guilty is knowingly and intelligently and voluntarily based. 

So we will enter that plea of record now. 

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

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

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

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

statutory rights: 
Case No. 6-17-05 

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 Waiver of trial by jury 

 Waiver of confrontation and cross-examination of State’s 

witnesses 

 Waiver of subpoenaing and/or calling witnesses 

 Waiver of State’s requirement to prove guilty beyond a 

reasonable doubt 

 Waiver of presumption of innocence 

 Waiver of right to remain silent 

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

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

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

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

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

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

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

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

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

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

assignment of error. 

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

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

Judgment Affirmed 

WILLAMOWSKI and SHAW, J.J., concur. 

/jlr