[Cite as State v. Phelps, 2015-Ohio-5288.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

BRANDON MICHAEL PHELPS, 

 DEFENDANT-APPELLANT. 

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CASE NO. 14 BE 17 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Belmont County, Ohio 

Case No. 12CR248, 14CR81 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee No brief filed. 

For Defendant-Appellant Attorney R. Aaron Miller 

329 North Fourth Street 

Steubenville, Ohio 43952 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: December 1, 2015 
[Cite as State v. Phelps, 2015-Ohio-5288.]

DONOFRIO, P.J. 

{¶1} Defendant-appellant, Brandon Phelps, appeals from a Belmont County 

Common Pleas Court judgment convicting him of complicity to involuntary 

manslaughter and aggravated burglary following his Alford pleas of guilty. 

{¶2} On October 10, 2012, a Belmont County Grand Jury indicted appellant 

on four counts of aggravated murder, first-degree felonies in violation of R.C. 

2903.01(B), all with death penalty specifications; one count of aggravated burglary, a 

first-degree felony in violation of R.C. 2911.11(A)(1); and one count of burglary, a 

second-degree felony in violation of R.C. 2911.12(A)(1). Appellant entered a not 

guilty plea to the indictment. 

{¶3} The indictment stemmed from the murder of Lydia Ashworth in June 

2012. Also implicated was co-defendant Devon Fuller. 

{¶4} On April 3, 2014, appellant entered into a plea agreement with plaintiffappellee, the State of Ohio. Pursuant to the plea agreement, the State dismissed all 

charges and death penalty specifications except for Count II, which it amended from 

aggravated murder to complicity to involuntary manslaughter, a first-degree felony in 

violation of R.C. 2923.03(A)(2) and R.C. 2903.04(A). Appellant was also charged by 

way of a bill of information with one count of aggravated burglary, a first-degree 

felony in violation of R.C. 2911.11(A)(2). 

{¶5} Appellant entered an Alford plea of guilty to the amended charge of 

complicity to involuntary manslaughter and the charge of aggravated burglary. The 

trial court accepted his plea and entered a finding of guilt. 

{¶6} The trial court subsequently sentenced appellant to ten years in prison 

on each count to be served consecutively for a total sentence of 20 years. 

{¶7} Appellant filed a timely notice of appeal on April 21, 2014. He now 

raises two assignments of error. 

{¶8} Appellant’s first assignment of error states: 

 APPELLANT’S ENTRY OF AN “ALFORD PLEA” WAS NOT 

KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED AND 

THEREFORE DEFENDANT’S CONVICTION MUST BE VACATED. 
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{¶9} Appellant asserts he did not enter his plea knowingly, intelligently, and 

voluntarily. He argues that the trial court was required to resolve the inherent conflict 

between his protestation of innocence and his plea. He states that the court never 

discussed the nature of an Alford plea and its consequences. Because he entered 

an Alford plea, appellant asserts the trial court was required to conduct a heightened 

inquiry before accepting his plea, which he asserts the court did not do. 

{¶10} An Alford plea is a guilty plea made in accordance with North Carolina 

v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), whereby the defendant pleads guilty but 

maintains that he did not commit the crime that he is pleading to. An Alford plea is 

“merely a species of guilty plea” and is “procedurally indistinguishable” from a guilty 

plea. State v. Carter, 124 Ohio App.3d 423, 429, 706 N.E.2d 409 (2d Dist.1997); 

State v. Nguyen, 6th Dist. No. L-05-1369, 2007-Ohio-2034, ¶18. “The defendant's 

purpose for entering an Alford plea is to avoid the risk of a longer sentence by 

agreeing to plead guilty to a lesser offense or for fear of the consequences of a jury 

trial, or both.” State v. Bailey, 1st Dist. No. C-030916, 2004-Ohio-6427, ¶7. 

{¶11} By entering an Alford plea the defendant waives review of all alleged 

errors, except those errors that may have affected the entry of the plea pursuant to 

Crim.R. 11. Nguyen, 2007-Ohio-2034, ¶18; State v. Lewis, 7th Dist. No. 97CA161, 

1999 WL 599280 (July 30, 1999). 

{¶12} A trial court may accept a guilty plea with a protestation of innocence 

when “a defendant intelligently concludes that his interests require entry of a guilty 

plea and the record before the judge contains strong evidence of actual guilt.” Alford, 

400 U.S. at 37. 

{¶13} At the change of plea hearing, appellant was represented by two 

attorneys. One of appellant’s attorneys advised the court: 

 He’ll enter a plea of guilty by way of Alford vs. North Carolina. 

We stipulate that the Complaints and the Indictment and the Information 

have sufficient information to make a finding of guilt. It is not necessary 

for the State to make a separate, independent presentation of evidence. 
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He is doing this by way of Alford because his counsel, Mr. Blakeslee 

and I, have advised him that the State does have sufficient evidence in 

Case No. 12-CR-248 that, if presented to a jury, could bring him a more 

severe penalty than has been recommended, and that it is in his best 

interest to enter these pleas. 

(Change of Plea Tr. 13-14). The court asked co-counsel if he agreed with this 

statement and co-counsel indicated that he did agree. (Change of Plea Tr. 14). The 

court then clarified, “So the plea is of - - one of guilty in accordance with the 

explanation provided.” (Change of Plea Tr. 14). To which appellant’s counsel 

responded, “That’s correct.” (Change of Plea Tr. 14). 

{¶14} The court then addressed appellant regarding his rights and other 

matters. In so doing, the court asked appellant if he understood that by pleading 

guilty “even with the Alford plea” he was admitting the facts as stated in the amended 

indictment. (Change of Plea Tr. 17). Appellant stated that he understood. (Change 

of Plea Tr. 17). The court continued its colloquy with appellant regarding various 

rights and information. Finally, the court asked appellant to execute the two guilty 

plea forms. (Change of Plea Tr. 20). The record indicates that appellant signed the 

two forms. (Change of Plea Tr. 20). The court found that appellant entered his plea 

knowingly, voluntarily, and intelligently. (Change of Plea Tr. 21). The court then 

accepted appellant’s pleas and found him guilty of involuntary manslaughter and 

aggravated burglary. (Change of Plea Tr. 21). 

{¶15} Here, appellant’s counsel stipulated that the complaints, indictment, and 

information had sufficient information to make a finding of guilt. Counsel then waived 

the requirement for the state to make a separate presentation of evidence. 

{¶16} In State v. McCann, 4th Dist. No. 10CA12, 2011-Ohio-3339, ¶7, the 

defendant argued on appeal that there was no factual basis for his plea and, 

therefore, the trial court should not have accepted his Alford plea. The Fourth District 

disagreed. The appellate court found that the parties stipulated to the facts 

supporting the appellant’s Alford plea. Id. at ¶11. The stipulation was a statement by 
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defense counsel that the defense accepted the facts as they appeared in the 

indictment with the exception of the fact that the defendant acted knowingly. Id. The 

appellate court reviewed the facts set out in the indictment and concluded they were 

“succinct, but covered all elements of the charged offense and specification.” Id. at 

¶12. The court concluded that “trial court needed only to insure that Appellant's 

Alford plea was supported by a factual basis, which it was. The stipulated facts 

formed a factual basis for Appellant's plea.” Id. at ¶13. 

{¶17} As was the case in McCann, appellant’s counsel here stipulated to the 

facts supporting the Alford plea. The trial court also conducted a thorough inquiry of 

appellant regarding the rights he was waiving, the charges against him, and his 

satisfaction with his counsel. 

{¶18} Alford pleas, like all pleas, must meet the general requirement that the 

defendant knowingly, voluntarily, and intelligently waived his or her right to trial. 

State v. Carey, 3d Dist. No. 14-10-25, 2011-Ohio-1998, ¶7. “[A]n Alford plea places 

a heightened duty upon the trial court to ensure that the defendant's rights are 

protected and that entering the plea is a rational decision on the part of the 

defendant.” Id.

{¶19} When determining the voluntariness of a plea, this court must consider 

all of the relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-03-

65, 2005-Ohio-552, ¶8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 

(1970). Pursuant to Crim.R. 11(C)(2), the trial court must follow a certain procedure 

for accepting guilty pleas in felony cases. Before the court can accept a guilty plea to 

a felony charge, it must conduct a colloquy with the defendant to determine that he 

understands the plea he is entering and the rights he is voluntarily waiving. Crim.R. 

11(C)(2). If the plea is not knowing and voluntary, it has been obtained in violation of 

due process and is void. State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio6806, ¶11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709 (1969). 

{¶20} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the 

waiver of federal constitutional rights. Martinez, supra, ¶12. These rights include the 
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right against self-incrimination, the right to a jury trial, the right to confront one's 

accusers, the right to compel witnesses to testify by compulsory process, and the 

right to proof of guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c). 

{¶21} In this case, the court strictly complied with Crim.R. 11(C)(2) in 

informing appellant of the constitutional rights he was waiving by entering a guilty 

plea. Before accepting appellant's plea, the trial court informed appellant that by 

pleading guilty he was waiving his right to have the state prove its case beyond a 

reasonable doubt, his right to a jury trial, his right to subpoena witnesses to assist 

him, his right to cross-examine witnesses against him, and his right to remain silent at 

trial. (Change of Plea Tr. 17-18). Appellant indicated that he understood that he was 

giving up each of these rights. (Change of Plea Tr. 17-18). 

{¶22} A trial court need only substantially comply with Crim.R. 11(C)(2) 

pertaining to non-constitutional rights such as informing the defendant of “the nature 

of the charges with an understanding of the law in relation to the facts, the maximum 

penalty, and that after entering a guilty plea or a no contest plea, the court may 

proceed to judgment and sentence.” Martinez, supra, ¶12, citing Crim.R. 

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

{¶23} The trial court substantially complied with Crim.R. 11(C)(2) in informing 

appellant of his non-constitutional rights. The court informed appellant of the nature 

of the charges against him. (Change of Plea Tr. 17). Appellant told the court that he 

understood the charges. (Change of Plea Tr. 16). Appellant also indicated that he 

understood the maximum penalty and that he understood the court could order his 

sentences to run consecutively. (Change of Plea Tr. 16). And the court informed 

appellant that it could proceed immediately to sentencing. (Change of Plea Tr. 19). 

{¶24} Thus, the trial court complied with Crim.R. 11(C)(2) in accepting 

appellant’s plea. 

{¶25} Accordingly, appellant’s first assignment of error is without merit. 

{¶26} Appellant’s second assignment of error states: 

 THE TRIAL COURT COMMITTED PLAIN ERROR BY 
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ACCEPTING APPELLANT’S “ALFORD PLEA” WHEN THERE WERE 

NOT SUBSTANTIAL FACTS SUFFICIENT TO SUPPORT A 

CONVICTION. 

{¶27} Appellant asserts that prior to accepting an Alford plea, the trial court is 

to require the state to show a basic factual framework for the charge and the plea. 

He contends that in this case the trial court did not require the state to make the 

required factual presentation due to the stipulation by the prosecutor and defense 

counsel. Appellant argues, however, that the requirement for a factual presentation 

is for the accused’s benefit and is part of making a knowing, intelligent, and voluntary 

plea. Appellant further argues that, in this case, the facts that the prosecutor did 

present indicated that appellant was possibly innocent given that he began to engage 

in criminal activity and then abandoned that conduct. Therefore, appellant asserts, 

there was no evidence that he committed or was complicit to involuntary 

manslaughter. 

{¶28} Prior to accepting the plea, the trial court stated that it was allowing the 

indictment to be amended and certain charges dropped based on its “express 

understanding that [appellant] was not the individual who caused the injuries which 

resulted in death.” (Change of Plea Tr. 2). It was also the court’s express 

understanding, “that [appellant] was not involved at all in any rape.” (Change of Plea 

Tr. 2). The court asked the prosecutor if it was correct that appellant’s co-defendant, 

Fuller, was the individual who caused the victim’s death and, if there was a rape, it 

was Fuller who did it. (Change of Plea Tr. 3). The prosecutor responded that “one 

version of the story is that [appellant] actually took off when he saw Fuller doing what 

he was doing.” (Change of Plea Tr. 3). The prosecutor stated that the evidence it 

had corroborated the court’s statements. (Change of Plea Tr. 2-3). 

{¶29} Later in the proceedings, appellant’s counsel stated: “We stipulate that 

the Complaints and the Indictment and the Information have sufficient information to 

make a finding of guilt. It is not necessary for the State to make a separate, 

independent presentation of evidence.” (Change of Plea Tr. 13). 
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{¶30} As discussed in appellant’s first assignment of error, appellant’s 

counsel stipulated to the facts set out in the complaint, information, and indictment. 

Thus, the state was not required to present additional evidence. 

{¶31} Moreover, the prosecutor agreed that appellant may have left the scene 

when Fuller began committing certain acts that resulted in the victim’s death. But this 

does not prove appellant’s innocence of all charges as he seems to assert. Instead, 

it gives credence to the reduced charge of complicity to involuntary manslaughter 

instead of a charge of aggravated murder with a death penalty specification as 

originally charged. 

{¶32} Accordingly, appellant’s second assignment of error is without merit. 

{¶33} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.