[Cite as State v. Crawford, 2018-Ohio-2166.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : 

 : Case No. 16CA3778 

Plaintiff-Appellee, : 

 : 

vs. : DECISION AND JUDGMENT 

: ENTRY 

DEON PEREZ CRAWFORD, : 

 : 

Defendant-Appellant. : Released: 06/05/18 

_____________________________________________________________ 

APPEARANCES: 

Steven H. Eckstein, Washington Court House, Ohio, for Appellant. 

Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for 

Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} This is an appeal from a Scioto County Court of Common Pleas 

judgment entry sentencing Appellant, Deon Crawford, after he pleaded 

guilty to one count of robbery, a second degree felony in violation of R.C. 

2911.01(A)(2). On appeal, Appellant contends that he was deprived of his 

right to due process under the Fourteenth Amendment to the United States 

Constitution and Article I, Section 10 of the Ohio Constitution when the trial 

court accepted an unknowing, unintelligent, and involuntary guilty plea. 

Because Appellant failed to ensure that the transcript of the plea hearing was 
Scioto App. No. 16CA3778 2

transmitted to this Court, we have nothing to pass upon and must presume 

the regularity and validity of the proceedings below. Further, even if the 

trial court failed to inform Appellant that a jury verdict of guilty must be 

unanimous prior to accepting his guilty plea, such a notification is neither 

required by the Constitution or by Crim.R. 11, and the trial court's failure to 

provide it does not constitute error. Accordingly, we conclude Appellant's 

sole assignment of error is without merit and the judgment of the trial court 

is affirmed. 

FACTS 

{¶2} Appellant, Deon Crawford, was arrested on May 27, 2016 for 

the robbery of Citizens Deposit Bank in Portsmouth. He was thereafter 

indicted on six counts alleging the commission of aggravated robbery (along 

with a firearm specification), theft, robbery, illegal use or possession of drug 

paraphernalia, obstructing official business and tampering with evidence. 

After engaging in plea negotiations with the State, Appellant agreed to plead 

guilty to count three, robbery, a second degree felony in violation of R.C. 

2911.02(A)(2), in exchange for the dismissal of the remaining counts of the 

indictment, as well as the State’s recommendation that he receive a sevenyear prison sentence. 
Scioto App. No. 16CA3778 3

{¶3} As a result, a change of plea hearing was held on August 30, 

2016. The record indicates Appellant signed two forms on that date, one 

entitled “Maximum Penalty” and the other entitled “Waiver.” The 

maximum penalty form indicated the maximum penalty for second degree 

felony robbery was eight years imprisonment, a $15,000.00 fine, and 

mandatory post-release control for a period of three years. The waiver form 

signed by Appellant will be discussed in more detail below. 

{¶4} The trial court issued a judgment entry on August 21, 2016. The 

judgment entry described the change-of-plea hearing held the day prior and 

indicated that “defendant’s acts were free and voluntary acts, whereupon the 

court found the rejection of rights and the plea of guilty was voluntarily, 

intelligently and knowingly made by the defendant.” The judgment entry 

further convicted Appellant of the third count of the indictment, robbery, 

dismissed all the remaining counts, and sentenced Appellant to a prison term 

of seven years, along with a three-year mandatory period of post-release 

control. 

{¶5} Appellant did not immediately appeal his conviction and 

sentence but instead filed a pro se motion for leave to file a delayed appeal 

on October 14, 2016. Along with his motion for leave to file a delayed 

appeal, Appellant initiated several other pro se filings in the trial court, 
Scioto App. No. 16CA3778 4

including a pro se motion for appointment of counsel, a pro se motion for 

preparation of a complete transcript of the proceedings at the State’s 

expense, and also a statement, praecipe and notice to the court reporter 

(specifically requesting preparation of a transcript from a proceeding heard 

on October 7, 2016 by Judge Harcha and also any related prior or 

subsequent hearings). The trial court appointed attorney Robert S. Stratton 

to represent Appellant for purposes of appeal on November 29, 2016. Then, 

by entry dated February 16, 2017, this Court granted Appellant’s motion for 

leave to file a delayed appeal, and also granted his motion for preparation of 

a complete transcript of the proceedings at State expense. 

{¶6} The Scioto County Clerk of Courts filed a notice of transmission 

of the record on March 31, 2017, stating that the record had been transmitted 

to this Court and that the record did not include transcripts of proceedings. 

On May 15, 2017, this Court issued a Magistrate’s Order noting Appellant 

and his counsel had taken no action to prosecute the appeal, and affording 

Appellant ten additional days to file a brief or face dismissal of the appeal. 

This Court noted in that order that the record had been transmitted without a 

transcript on March 31, 2017. 
Scioto App. No. 16CA3778 5

{¶7} A review of the record indicates Appellant’s originally 

appointed appellate counsel filed what was essentially an Anders brief1

 on 

June 16, 2017. In that brief, counsel represented that “[n]o arguable, nonfrivolous issues of reversible error exist in this case[,]’ and he requested 

permission to withdraw as counsel for Appellant. On July 31, 2017, this 

Court issued a Magistrate’s Order referencing our recent decision in State v. 

Wilson, 4th Dist. Lawrence No. 16CA12, 2017-Ohio-5772, which held that 

motions and briefs filed under Anders would no longer be accepted. 

However, because counsel had disclosed a belief that no errors or arguable 

merit existed, we granted his request to withdraw, and appointed attorney 

Steven H. Eckstein to prosecute the appeal. 

{¶8} Appellant’s new counsel filed a motion for an extension of time 

to file a brief on January 29, 2018, citing as a justifying reason, in part, that 

this Court had failed to rule on Appellant’s motion for a full transcript. 

However, as set forth above, this Court granted Appellant’s motion for a 

complete transcript at State expense on February 16, 2017. Appellant’s 

counsel also stated he had determined a full transcript was necessary, that he 

had taken steps to obtain one, and that “[i]t is in the mail according to the 

court reporter.” Despite this representation by counsel there are no docket 

 

1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). 
Scioto App. No. 16CA3778 6

entries indicating requests for additional time for the court reporter to 

prepare the transcripts, nor was any motion filed to supplement the record 

with the transcripts. Instead, it appears from a review of the record before 

us, as well as the docketing statement, that the record transmitted to this 

Court was never supplemented to include any transcripts. Appellant’s 

counsel finally filed an appellate brief on February 7, 2018, setting forth a 

single assignment of error for our review. 

ASSIGNMENT OF ERROR 

“I. CRAWFORD WAS DEPRIVED OF HIS RIGHT TO DUE 

PROCESS UNDER THE FOURTHEENTH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 

10 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT 

ACCEPTED AN UNKNOWING, UNINTELLIGENT, AND 

INVOLUNTARY GUILTY PLEA.” 

LEGAL ANALYSIS 

{¶9} In his sole assignment of error, Appellant essentially contends 

that his guilty plea to one count of robbery was not knowingly, intelligently 

and voluntarily given, and that the trial court erred in accepting it. Appellant 

asserts that the trial court failed to inform him, prior to accepting his guilty 

plea, that a jury verdict of guilty must be unanimous, and that the trial court 

committed plain error as a result. The State contends Appellant was 

afforded full compliance with Crim.R. 11, agreed to the conditions of his 

plea, appreciated the effect of his plea and waived his rights. 
Scioto App. No. 16CA3778 7

{¶10} “ ‘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, 897 N.E.2d 621, ¶ 7; quoting State v. 

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “ ‘An appellate 

court determining whether a guilty plea was entered knowingly, 

intelligently, and voluntarily conducts a de novo review of the record to 

ensure that the trial court complied with the constitutional and procedural 

safeguards.’ ” State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-

Ohio-5601, ¶ 36; quoting State v. Moore, 4th Dist. Adams No. 13CA965, 

2014-Ohio-3024, ¶ 13. 

{¶11} “Crim.R. 11(C) governs the process that a trial court must use 

before accepting a felony plea of guilty or no contest.” Veney at ¶ 8. Before 

accepting a guilty plea in a felony case a trial court must address the 

defendant personally and engage in a colloquy covering the contents of 

Crim.R. 11(C)(2)(a)-(c), which are as follows: 

“(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 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 
Scioto App. No. 16CA3778 8

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.” 

Further, a defendant who challenges his guilty plea on the basis that it was 

not knowingly, intelligently, and voluntarily made must generally prove 

prejudice, which in this context means that the plea would otherwise have 

not been entered. Veney at ¶ 15. 

{¶12} In the present case, Appellant argues that “[t]he transcript of 

the proceedings of the change of plea hearing are devoid of any mention of 

the requirement of a guilty verdict needing to be unanimous.” However, as 

set forth above, the record was transmitted to this Court on March 31, 2017, 

and it did not include any transcripts. Further, a review of the record reveals 

that Appellant failed to later supplement the record with the pertinent 

transcript, or any transcripts. “ ‘Pursuant to App.R. 9(A), the record on 

appeal must contain “[t]he original papers and exhibits thereto filed in the 

trial court, the transcript of proceedings, if any, including exhibits, and a 
Scioto App. No. 16CA3778 9

certified copy of the docket and journal entries prepared by the clerk of the 

trial court [.]” ’ ” State v. Bailey, 4th Dist. Scioto No. 09CA3287, 2010-

Ohio-2239, ¶ 57; citing State v. Dalton, 9th Dist. Lorain No. 09CA009589, 

2009-Ohio-6910, ¶ 25; quoting App.R. 9(A). Furthermore, “ ‘[i]t is the 

appellant's duty to transmit the [record] to the court of appeals. * * * This 

duty falls to the appellant because the appellant has the burden of 

establishing error in the trial court.’ ” Bailey at ¶ 57; citing Dalton at ¶ 2; 

citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 

384 (1980) (internal citations omitted). 

{¶13} As this Court has further explained in Wall v. Wall, 4th Dist. 

Pike No. 14CA848, 2015-Ohio-1928, ¶ 7: 

"The duty to provide a transcript for appellate review falls upon 

the appellant. State v. Hess, 17 N.E.3d 15, 2014–Ohio–3193, 

¶ 42, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 

400 N.E.2d 383 *199. This is necessarily so because an 

appellant bears the burden of showing error by reference to 

matters in the record. Id. App.R. 9(B). When portions of the 

transcript necessary for resolution of assigned errors are omitted 

from the record, the reviewing court has nothing to pass upon 

and thus, as to those assigned errors, the court has no choice but 

to presume the validity of the lower court's proceedings, and 

affirm. Id." See also, State v. Cremeans, 4th Dist. Meigs No. 

17CA6, 2018-Ohio-537, ¶14 (the absence of the change of plea 

hearing transcript limits our review "because we must presume 

the validity of the trial court's determination.") (internal 

citations omitted) 
Scioto App. No. 16CA3778 10

Because Appellant has failed to provide this Court with the transcript of the 

change of plea hearing, we have nothing to pass upon and must, instead, 

presume the regularity and validity of the proceedings below. 

{¶14} Here, although we do not have the transcript of the change of 

plea hearing, we do have the statement of maximum penalty and written 

waiver signed by Appellant when he entered his plea. As noted above, the 

statement of maximum penalty accurately advised Appellant of the 

maximum penalty he was facing for second-degree felony robbery. Further, 

the waiver signed by Appellant on August 30, 2016, states, in pertinent part, 

as follows: 

"I, Deon Perez Crawford, * * * understand that I have: 

1. The right to a trial by jury with representation by counsel; 

2. The right to confront the witnesses against me; 

3. The right to compulsory process for obtaining witnesses in 

 my favor; 

4. The right to require the state to prove my guilt beyond a 

reasonable doubt at a trial at which I cannot be compelled to 

testify against myself. 

Fully understanding these rights guaranteed me by the 

Constitution, I hereby waive them in writing. I withdraw my 
Scioto App. No. 16CA3778 11

former plea of not guilty, and enter a plea of guilty to the crime 

of Ct. 3 Robbery (F-2) violation of Section 2911.02(A)(2) of 

the Ohio Revised Code." 

The written waiver form further provides a section that was signed by the 

trial judge, which states as follows: 

"The Court finds that the defendant was advised of all 

applicable Constitutional rights herein, and further finds that the 

defendant understands the nature of the charges and the 

consequences of the plea." 

{¶15} Additionally, as set forth above, the judgment and sentencing 

entry filed by the trial court states that “defendant’s acts were free and 

voluntary acts, whereupon the court found the rejection of rights and the plea 

of guilty was voluntarily, intelligently and knowingly made by the 

defendant.” In the absence of the plea hearing transcript we must presume 

the validity of the findings made by the trial court, which indicate that 

Appellant's guilty plea was knowing, intelligent and voluntary. Id. at ¶ 14. 

{¶16} Furthermore, as candidly conceded by Appellant in his brief 

and as noted by the State, neither Crim.R. 11 or Ohio case law indicate 

Appellant's unanimity argument has merit. In fact, the Supreme Court of 

Ohio and several other appellate districts have held that the trial court is not 

required to inform a defendant that a verdict must be unanimous prior to 
Scioto App. No. 16CA3778 12

accepting a guilty plea. For instance, with respect to the validity of a guilty 

plea, the Supreme Court of Ohio has explained as follows: 

“ ‘Prior to accepting a guilty plea from a criminal defendant, the 

trial court must inform the defendant that he is waiving his 

privilege against compulsory self-incrimination, his right to 

jury trial, his right to confront his accusers, and his right of 

compulsory process of witnesses.’ ” State v. Fitzpatrick, 102 

Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d. 927, ¶ 52; 

quoting State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115, 

paragraph one of the syllabus (1981); following Boykin v. 

Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709 (1969); see also, 

Crim.R. 11(C)(2)(c). 

{¶17} When presented with an argument that Fitzpatrick's plea was 

not voluntary, knowing or intelligent because the trial court did not inform 

him that "the verdict of a three-judge panel must be unanimous as to 

conviction or acquittal[,]" the Supreme Court of Ohio explained as follows: 

"* * * the right to a unanimous verdict by a judicial panel in a 

bench trial is not a constitutional right; it is conferred by R.C. 

2945.06. Because that right is not a constitutional right, a trial 

court need not advise a defendant that he waives it by pleading 

guilty. See, generally, Libretti v. United States (1995), 516 U.S. 

29, 49–51, 116 S.Ct. 356, 133 L.Ed.2d 271.” Fitzpatrick at 

¶ 54. 

{¶18} Two years later, State v. Ketterer, 111 Ohio St.3d 70, 2006-

Ohio-5283, 855 N.E.2d 48 was decided. Ketterer contended "that he did not 

'knowingly, intelligently, and voluntarily' waive a jury trial and enter a guilty 

plea." Ketterer at ¶ 13. In response, the Court reasoned as follows: 
Scioto App. No. 16CA3778 13

"Contrary to Ketterer's claim, the trial court was not required to 

specifically advise Ketterer on the need for juror unanimity. We 

rejected similar claims in State v. Bays (1999), 87 Ohio St.3d 

15, 19–21, 716 N.E.2d 1126, citing United States v. Martin

(C.A.6, 1983), 704 F.2d 267. In Bays, we noted that 'a 

defendant need not have a complete or technical understanding 

of the jury trial right in order to knowingly and intelligently 

waive it.' Id. at 20, 716 N.E.2d 1126. Nor is the trial court 

'required to inform the defendant of all the possible implications 

of waiver.' Id. Accord Sowell v. Bradshaw (C.A.6, 2004), 372 

F.3d 821, 833–836; State v. Turner, 105 Ohio St.3d 331, 2005-

Ohio-1938, 826 N.E.2d 266, ¶ 24–25; Fitzpatrick, 102 Ohio 

St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 44–46 (accused 

need not be told that jury unanimity is necessary to convict and 

to impose sentence)." Ketterer at ¶ 68. 

{¶19} Similarly, presented with the argument that a defendant's plea 

was not knowing, voluntary, or intelligent because the trial court failed to 

inform him of his "constitutional right to a unanimous verdict[,]" the Tenth 

District Court of Appeals stated as follows: 

"Initially, there is no explicit requirement in Crim.R. 11 

(C)(2)(a) that a defendant be informed of his right to a 

unanimous verdict. Further, several courts, including the Ohio 

Supreme Court, have held there is no requirement that a trial 

court inform a defendant of his right to a unanimous verdict." 

State v. Simpson, 10th Dist. No. 07AP-929, 2008-Ohio-2460, 

¶ 11; citing State v. Ketterer, supra, at ¶ 68; State v. Fitzpatrick, 

supra, at ¶ 44-46; State v. Barnett, 1st Dist. Hamilton No. C060950, 2007-Ohio-4599, ¶ 6 (trial court not required to 

specifically inform defendant that she had right to unanimous 

verdict; defendant's execution of a written jury trial waiver and 

guilty plea form, as well as her on-the-record colloquy with the 

trial court about these documents, was sufficient to notify her 

about the jury trial right she was foregoing); State v. Goens, 2nd

Dist. Montgomery No. 19585, 2003-Ohio-5402, ¶ 19; State v. 

Pons, 2nd Dist. Montgomery No. 7817, 1983 WL 2450 
Scioto App. No. 16CA3778 14

(defendant's argument that he be told that there must be a 

unanimous verdict by the jury is an attempted super technical 

expansion of Crim.R. 11); State v. Small, 9th Dist. Summit No. 

10105, 1981 WL 4084 (Crim.R. 11 does not require the court to 

inform the defendant that the verdict in a jury trial must be by 

unanimous vote). 

{¶20} Based upon the foregoing, Appellant's argument that his plea 

was not knowingly, voluntarily and intelligently entered because the trial 

court failed to inform him that he was waiving his right to a unanimous jury 

verdict lacks merit. Even assuming the change-of-plea hearing transcript 

was properly before us and verified that Appellant was not informed that a 

jury verdict of guilty must be unanimous, his argument would still fail 

because such advisement is not required by the United States or Ohio 

Constitutions, nor is it required by Crim.R. 11. Thus, Appellant cannot 

demonstrate prejudice. In fact, Appellant has not argued that he would not 

have entered a guilty plea if he had been so advised. Accordingly, 

Appellant's sole assignment of error is without merit and the judgment of the 

trial court is affirmed. 

 JUDGMENT AFFIRMED. 
Scioto App. No. 16CA3778 15

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be 

assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Scioto County Common Pleas Court to carry this judgment into 

execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Harsha, J. & Abele, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.