[Cite as State v. Williams, 2016-Ohio-7777.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103762

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

KENNETH WILLIAMS

DEFENDANT-APPELLANT

JUDGMENT: 

VACATED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-593079-A 

 BEFORE: Blackmon, J., Stewart, P.J., and Boyle, J. 

 RELEASED AND JOURNALIZED: November 17, 2016 
-iATTORNEY FOR APPELLANT 

Mark R. Marshall 

P.O. Box 451146 

Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Edward D. Brydle 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, J.: 

{¶1} Appellant Kenneth Williams (“Williams”) appeals his conviction for theft 

and assigns the following error for our review: 

The trial court erred in accepting appellant’s no contest plea for theft when 

it was clearly based upon the proffer by the State of Ohio that appellant did 

not knowingly obtain or exert control over property without the consent of 

the owner or person authorized to give consent. 

{¶2} Having reviewed the record and pertinent law, we vacate William’s 

conviction and order that he be discharged. The apposite facts follow. 

{¶3} Williams was indicted for grand theft pursuant to R.C. 2913.02(A)(1) and 

subsequently entered a no contest plea to the indictment. At the plea hearing, it was 

revealed that Williams defrauded the victim out of $17,000 by attempting to lease him a 

house in which Williams possessed no legal interest and also persuaded the victim to 

invest in a second home in which Williams possessed no legal interest. After the 

prosecutor stated the facts supporting the indictment, Williams’s counsel informed the 

trial court that “we’ll stipulate to the finding.” (Tr. 35). The trial court subsequently 

found Williams guilty of grand theft. The trial court ordered Williams to pay 

restitution to the victim and sentenced Williams to 15 months in prison. 

Trial Court Erred by Accepting No Contest Plea

{¶4} In his sole assigned error, Williams contends that the trial court erred by 

accepting his no contest plea because the state’s recitation of the facts eliminated the 

element of “without consent” needed for theft pursuant to R.C. 2913.02(A)(1). 
{¶5} A felony no contest plea differs from a misdemeanor plea because a felony 

plea does not require that a statement of facts be presented prior to the court accepting the 

plea. State v. Magone, 2d Dist. Clark No. 2015-CA-94, 2016-Ohio-7100, ¶ 45. Instead, 

in a felony “[t]he plea of no contest is not an admission of defendant’s guilt, but is an 

admission of the truth of the facts alleged in the indictment, information, or complaint.” 

Crim.R. 11(B)(2). “[W]here 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 of the charged offense.” State v. Bird, 81 Ohio St.3d 

582, 584, 692 N.E.2d 1013 (1998). “[B]y pleading no contest to the indictment,” a 

defendant “is foreclosed from challenging the factual merits of the underlying charge.” 

Id. 

{¶6} Williams was indicted for theft pursuant to R.C. 2913.02(A)(1), which 

provides: 

(A) No person, with purpose to deprive the owner of property or services, 

shall knowingly obtain or exert control over either the property or services 

in any of the following ways: 

(1) Without the consent of the owner or person authorized to give consent; 

{¶7} By pleading no contest, Williams admitted to the truth of the facts alleged 

in his indictment. In the instant case, Williams’s indictment mirrored the elements set 

forth in R.C. 2913.02(A)(1). Therefore, because his indictment contained sufficient 

allegations to state a felony, according to Bird, the trial court was obligated to find him 

guilty of the offense. 
{¶8} However, several appellate districts have recognized in dicta an exception 

to Bird where the state presents a statement of facts in a felony no contest plea that 

positively eliminates the existence of an essential element of the offense charged in the 

indictment. These districts have concluded that the trial court errs in making a finding of 

guilt under these circumstances. See State v. Campbell, 1st Dist. Hamilton No. 

C-140372, 2015-Ohio-1464, ¶ 18; State v. Cooper, 168 Ohio App.3d 378, 

2006-Ohio-4004, 860 N.E.2d 135, ¶ 6 (2d Dist.); State v. Mullen, 191 Ohio App.3d 788, 

2011-Ohio-37, 947 N.E.2d 762 (3d Dist.); State v. Stepp, 4th Dist. Scioto No. 09CA3328,

2010-Ohio-3540, ¶ 34; State v. Brown, 6th Dist. Lucas No. L-08-1183, 2009-Ohio-513, ¶ 

11; State v. Blair, 11th Dist. Portage No. 2012-P-0145, 2013-Ohio-3477, ¶ 21; State v. 

Watson, 12th Dist. Clinton No. CA20007-04-020, 2008-Ohio-629, ¶ 9. 

{¶9} The Ohio Supreme Court has not yet addressed this situation, and the Eighth 

District has not yet ruled on a similar case since the Supreme Court decided Bird. Prior 

to Bird, this court in State v. Mehozonek, 8 Ohio App.3d 271, 456 N.E.2d 1353 (8th 

Dist.1983), addressing a similar situation in a felony no contest plea held, “[w]here the 

facts presented to the trial court unequivocally negate an essential element of the offense 

charged in the indictment, it is an abuse of discretion for the court to accept the no contest 

plea of the defendant.” Id. at 273-274, citing State v. Cohen, 60 Ohio App.2d 182, 396 

N.E.2d 235 (1st Dist.1978). In Mehozonek, this court reversed the defendant’s 

conviction and vacated the plea after concluding it was an abuse of discretion for the trial 
court to accept the defendant’s plea to a felony based on the facts presented by the 

prosecutor. 

{¶10} The recent cases from this district cited by the state in its appellate brief are 

not cases in which the prosecutor set forth facts in which an element of the indicted 

offense has been absolutely negated. See State v. Newrones, 8th Dist. Cuyahoga No. 

97216, 2012-Ohio-710 (indictment and facts were the same); State v. Baumgartner, 8th 

Dist. Cuyahoga Nos. 89190, 91207, and 91208, 2009-Ohio-624 (although defendant 

argued state’s proffers were insufficient to establish the offense, the opinion does not 

reveal that the evidence positively negated an element of the offense); State v. Cameron, 

8th Dist. Cuyahoga No. 85141, 2005-Ohio-2831 (evidence did not positively negate an 

essential element of the offense). 

{¶11} We agree that there is an exception to the Supreme Court’s decision in Bird. 

 When the trial court asks for the recitation of the facts underlying a no contest plea to a 

felony charge and those facts negate the existence of an essential element of the offense 

charged, the trial court errs in making a finding of guilt. 

{¶12} Here, after Williams entered his no contest plea, the trial court elicited facts 

from the prosecutor prior to accepting the plea. The facts as set forth by the prosecutor 

indicated that the victim willingly gave Williams his money, but under the false pretense 

that he believed that Williams owned the properties. Thus, Williams, in fact, received 

the money with the victim’s consent. Because “without consent” is an element of R.C. 
2913.02(A)(1), the trial court erred by making a finding of guilt. Accordingly, Williams’s 

assigned error is sustained. 

{¶13} Williams’s conviction is vacated, and he is ordered discharged. 

It is ordered that appellant recover of appellee costs herein taxed. 

It is ordered that a special mandate be sent to the Cuyahoga County Court of 

Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

MELODY J. STEWART, P.J., and 

MARY J. BOYLE, J., CONCUR