[Cite as State v. Robinette, 2015-Ohio-4869.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 15AP-255 

 (C.P.C. No. 14CR-4026) 

v. : 

 (REGULAR CALENDAR) 

James Robinette, : 

 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on November 24, 2015 

 

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for 

appellee. 

Thomas A. Gjostein, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas. 

BROWN, P.J. 

{¶ 1} This is an appeal by defendant-appellant, James Robinette, from a 

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

Pleas following his entry of a guilty plea to operating a vehicle under the influence of 

alcohol. 

{¶ 2} On July 30, 2014, appellant was indicted on one count of operating a vehicle 

under the influence of alcohol ("OVI"), in violation of R.C. 4511.19; the indictment 

charged a felony of the fourth degree, alleging that appellant had been convicted of or 

pleaded guilty to three or more violations of R.C. 4511.19(A) or (B) within six years of the 

instant offense. On September 8, 2014, appellant entered a plea of not guilty. 
No. 15AP-255 2 

{¶ 3} On January 15, 2015, appellant appeared before the trial court and 

withdrew his not guilty plea and entered a plea of guilty to the OVI charge. During the 

plea hearing, the prosecutor gave the following recitation of facts: 

[T]his incident occurred back on June 12, 2014, 

approximately 2:00 in the morning. A Deputy Sheriff for 

Franklin County observed a vehicle speeding. When he 

turned his attention to it, he noticed that it had trouble 

staying within its lane and looked like he had trouble 

controlling the vehicle. 

The officer stopped the vehicle and came in contact with the 

driver, who was Mr. Robinette. He had bloodshot, glassy eyes 

and slurred speech. He asked him to step out of the vehicle 

and walk to the back. As he did so, he was very unsteady on 

his feet. He actually fell down at one point, actually looked at 

the officer and said, "Boy, I'm drunk." 

The officer asked him to perform a field sobriety test; he 

refused, saying he wouldn't pass them anyway. He asked him 

for a test of his urine and he refused to submit to that. 

He was placed under arrest for the OVI, charged as a felony 

because he has three priors within a six-year period * * * 

making this a fourth offense within a six-year period. 

 

(Tr. 14-15.) 

{¶ 4} The trial court, after conducting a colloquy with appellant, accepted his 

guilty plea. By judgment entry filed March 6, 2015, the court imposed a sentence of 24 

months incarceration, and suspended appellant's driver's license for a period of 60 

months. 

{¶ 5} On appeal, appellant raises the following two assignments of error for this 

court's review: 

[I.] THE TRIAL COURT ERRED WHEN IT DID NOT 

COMPLY WITH CRIM. R. 11, FOR FAILURE TO 

DETERMINE THAT THE APPELLANT UNDERSTOOD THE 

NATURE AND ELEMENTS OF THE CHARGE AGAINST 

HIM. 

[II.] TRIAL COUNSEL WAS RENDERED INEFFECTIVE 

FOR FAILING TO OBJECT TO THE DEFECT IN THE 

INDICTMENT, WHICH FAILED TO STATE THAT 
No. 15AP-255 3 

APPELLANT HAD REFUSED A URINE TEST AND THIS 

FAILURE TO OBJECT WAS PLAIN ERROR. 

{¶ 6} Under the first assignment of error, appellant asserts that his plea was 

invalid because the trial court did not strictly comply with Crim.R. 11. Specifically, 

appellant contends the court failed to determine whether he understood the nature and 

elements of the charges against him. 

{¶ 7} 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 

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. 

{¶ 8} Prior to accepting a guilty plea in a felony case, a trial court, pursuant to 

Crim.R. 11(C), "must conduct an oral dialogue with the defendant to determine that the 

plea is voluntary and the defendant understands the nature of the charges and the 

maximum penalty involved, and to personally inform the defendant of the constitutional 

guarantees he is waiving by entering a guilty plea." State v. Kaminski, 8th Dist. No. 

93744, 2010-Ohio-4669, ¶ 2. A trial court is required to "strictly comply with the Crim.R. 

11(C)(2) requirements regarding the waiver of constitutional rights, meaning the court 
No. 15AP-255 4 

must actually inform the defendant of the constitutional rights he is waiving and make 

sure the defendant understands them." Id. at ¶ 3. By contrast, "[w]ith respect to the other 

requirements of Crim.R. 11(C)(2) regarding nonconstitutional rights, 'substantial 

compliance' is sufficient." Id. The term " '[s]ubstantial compliance' means that under the 

totality of the circumstances the defendant subjectively understands the implications of 

his plea and the rights he is waiving." Id. Further, a defendant challenging his guilty plea 

on the basis that it was not knowingly, intelligently, and voluntarily made "must 

demonstrate a prejudicial effect of which the test is whether the plea would have 

otherwise been made." State v. Scarnati, 11th Dist. No. 2001-P-0063 (Feb. 22, 2002). 

{¶ 9} During the plea hearing in the instant case, the colloquy between the trial 

court and appellant included the following dialogue: 

THE COURT: All right. And today, the entry of guilty plea 

form in this case, did your counsel read that to you, then? 

THE DEFENDANT: Yes, he did. 

THE COURT: * * * And did you have any problems 

understanding what he read to you? 

THE DEFENDANT: No. 

* * * 

THE COURT: Have you had an opportunity to talk with your 

attorney about the charges against you? 

THE DEFENDANT: Yes. 

THE COURT: And was he able to answer any questions you 

may have had about those charges? 

THE DEFENDANT: Yes. 

THE COURT: Do you feel that you understand the charges 

against you? 

THE DEFENDANT: Yes. 

THE COURT: Are you satisfied with your attorney's 

representation? 
No. 15AP-255 5 

THE DEFENDANT: Yeah. 

* * * 

THE COURT: Okay. I have in front of me that entry of guilty 

plea form. * * * Did you sign this form? 

THE DEFENDANT: Yes, I did. 

THE COURT: And before you signed it you had an 

opportunity to go over it with your attorney, right? 

THE DEFENDANT: Yeah. 

THE COURT: And was he able to answer any questions you 

may have had about the form? 

THE DEFENDANT: Yeah, he has, yeah. 

(Tr. 5-8.) 

{¶ 10} During the plea hearing, the trial court also addressed the constitutional 

rights appellant was waiving by pleading guilty, and appellant responded affirmatively 

when the court inquired whether he wished to "waive or give up those constitutional trial 

rights." (Tr. 13.) Further, the trial court questioned defense counsel as to whether he was 

satisfied with "your client's decision to waive his constitutional trial rights." Counsel 

responded: "I am, your Honor." (Tr. 13.) 

{¶ 11} As noted, appellant contends the trial court failed to determine whether he 

understood the nature of the charges against him. Specifically, appellant contends the 

trial court erred in failing to ensure he understood the elements of OVI. 

{¶ 12} Under Ohio law, however, "courts are not required to explain the elements 

of each offense, or even to specifically ask the defendant whether he understands the 

charges, unless the totality of the circumstances shows that the defendant does not 

understand the charges." State v. Cobb, 8th Dist. No. 76950 (Mar. 8, 2001). The 

" 'court's determination that a defendant understands the charge can be based on the 

surrounding circumstances, such as recitations of discussions between the defendant and 

his attorney.' " Id., quoting State v. Williams, 8th Dist. No. 77437 (Nov. 22, 2000). 

Further, "[t]here is a presumption * * * that the defense counsel did inform the defendant 

of the nature of the charges." State v. Philpott, 8th Dist. No. 74392 (Dec. 14, 2000) (trial 
No. 15AP-255 6 

court not required to inform defendant of each element of the crime; defendant failed to 

reference any section of the transcript indicating he did not understand or was confused 

about any of the elements of the charges, "[n]or did his attorney express any concern 

regarding his understanding of the consequences of his plea and the nature of the 

offense"). 

{¶ 13} In the present case, during the colloquy between appellant and the trial 

court, appellant responded affirmatively when the court asked whether he had reviewed 

the nature of the charge with his attorney, and whether he understood the charge. In 

general, when a "defendant 'indicates that he understands the nature of the charge, in the 

absence of evidence to the contrary or anything in the record that indicates confusion, it is 

typically presumed that the defendant actually understood the nature of the charge 

against him.' " State v. Martin, 8th Dist. No. 92600, 2010-Ohio-244, ¶ 13, quoting State 

v. Wangul, 8th Dist. No. 84698, 2005-Ohio-1175, ¶ 10. 

{¶ 14} Appellant also acknowledged that he reviewed the entry of guilty plea form 

with his attorney, and indicated he was satisfied with his counsel's representation. In 

State v. Thomas, 10th Dist. No. 04AP-866, 2005-Ohio-2389, this court addressed an 

appellant's claim that the trial court failed to determine he understood the nature of the 

charge to which he entered a guilty plea, including the appellant's argument that the court 

did not discuss the elements of the charge. Based upon consideration of the totality of the 

circumstances, this court found that the appellant understood the nature of the charge, 

noting in part that "[t]he entry of guilty plea form that appellant signed identified the 

charge and stated that he reviewed the facts and law of his case with counsel," and that the 

appellant "was present at his plea hearing when the prosecuting attorney recited the facts 

of the case to the trial court" and "did not voice any objection to those facts or raise any 

concerns about the nature of the charge." Id. at ¶ 12. 

{¶ 15} Similarly, in the instant case, appellant's entry of guilty plea identified the 

charge and stated appellant had "reviewed the facts and law of my case with my counsel"; 

further, appellant's counsel did not object to the recitation of facts nor express concern 

about his client's understanding of the charge. Here, nothing in the record indicates 

appellant did not understand the charge to which he entered a guilty plea. Based upon 

this court's review, the totality of the circumstances indicates that appellant understood 
No. 15AP-255 7 

the nature of the charge against him, and we find that the trial court substantially 

complied with Crim.R. 11(C)(2). See State v. Bailey, 11th Dist. No. 2006-G-2734, 2007-

Ohio-6160, ¶ 22 (while trial judge "did not set forth the elements * * * of [OVI] or ask 

Bailey if he understood the charge * * * there are sufficient surrounding circumstances to 

warrant the conclusion that Bailey, in fact, understood the charge," including the fact he 

told the court he had spoken with defense counsel prior to changing his plea, and that he 

understood he would be pleading to a fourth-degree OVI). 

{¶ 16} Accordingly, appellant's first assignment of error is not well-taken and is 

overruled. 

{¶ 17} Under his second assignment of error, appellant argues his trial counsel was 

ineffective for failing to recognize obvious defects in the indictment. Appellant further 

contends that the trial court's failure to recognize these defects constituted plain error. 

{¶ 18} In order to prevail on a claim of ineffective assistance of counsel with 

respect to the entry of a guilty plea, a defendant must meet the test set forth in Strickland 

v. Washington, 466 U.S. 668 (1984). State v. Xie, 62 Ohio St.3d 521, 524 (1992). 

Specifically, the defendant must first " 'show that counsel's performance was deficient,' " 

id., quoting Strickland at 687, and "[s]econd, 'the defendant must show that there is a 

reasonable probability that, but for counsel's errors, he would not have pleaded guilty.' " 

Id., quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). 

{¶ 19} Appellant notes the indictment at issue states that he had previously been 

convicted of or pleaded guilty to a violation of R.C. 4511.19 and includes a listing of those 

prior convictions. Appellant contends, however, that the indictment did not include 

mandatory language for a test refusal or high test as required under several provisions of 

R.C. 4511.19(A). According to appellant, it would be impossible for a defendant to have 

notice as to whether his felony OVI involved a high test or a test refusal under the 

circumstances. 

{¶ 20} In response, the state argues that appellant could have been charged under 

R.C. 4511.19(A)(2)(b)1 based on the recitation of facts; however, the state maintains, the 

 

1 R.C. 4511.19(A)(2) "prohibits a person who has been convicted of a prior OVI offense in the previous 20 

years from (1) operating a motor vehicle under the influence of alcohol and (2) refusing to submit to a 

chemical test after being asked to do so by a law enforcement officer." State v. Turner, 11th Dist. No. 2007-

P-0090, 2008-Ohio-3898, ¶ 41. 
No. 15AP-255 8 

language found in appellant's indictment alleges a violation of R.C. 4511.19(A)(1)(a), and 

the trial court properly sentenced him under R.C. 4511.19(G)(1)(d). We agree. 

{¶ 21} R.C. 4511.19(A)(1) states in part: "No person shall operate any vehicle, 

streetcar, or trackless trolley within this state, if, at the time of the operation, any of the 

following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a 

combination of them." R.C. 4511.19(G)(1)(d) states in part: "[A]n offender who, within six 

years of the offense, previously has been convicted of * * * three or four violations of 

division (A) or (B) of this section or other equivalent offenses * * * is guilty of a felony of 

the fourth degree." R.C. 4511.19(G)(1)(d)(i) further provides, in relevant part: 

The court shall sentence the offender to all of the following: 

If the sentence is being imposed for a violation of division 

(A)(1)(a), (b), (c), (d), (e), or (j) of this section, * * * in the 

discretion of the court, either a mandatory term of local 

incarceration of sixty consecutive days in accordance with 

division (G)(1) of section 2929.13 of the Revised Code or a 

mandatory prison term of sixty consecutive days in 

accordance with division (G)(2) of that section if the offender 

is not convicted of and does not plead guilty to a specification 

of that type. * * * If the court imposes a mandatory prison 

term, notwithstanding division (A)(4) of section 2929.14 of 

the Revised Code, it also may sentence the offender to a 

definite prison term that shall be not less than six months and 

not more than thirty months and the prison terms shall be 

imposed as described in division (G)(2) of section 2929.13 of 

the Revised Code. If the court imposes a mandatory prison 

term or mandatory prison term and additional prison term, in 

addition to the term or terms so imposed, the court also may 

sentence the offender to a community control sanction for the 

offense, but the offender shall serve all of the prison terms so 

imposed prior to serving the community control sanction. 

{¶ 22} In the instant case, the indictment alleged in part that appellant "did 

operate a vehicle * * * while * * * under the influence of alcohol * * * and within six (6) 

years of the instant offense * * * was previously convicted of or pleaded guilty to three or 

more violations of division (A) or (B) of section 4511.19 of the Ohio Revised Code." Here, 

the indictment alleged a violation of R.C. 4511.19(A)(1)(a), a felony of the fourth degree, 

and the trial court sentenced him to a prison term of 24 months, which was within the 
No. 15AP-255 9 

statutory range of sentencing under R.C. 4511.19(G)(1)(d)(1). Based upon the record 

presented, appellant has shown neither that his counsel rendered ineffective assistance 

nor that the trial court committed plain error with respect to the indictment. Appellant's 

second assignment of error is overruled. 

{¶ 23} Based upon the foregoing, appellant's first and second assignments of error 

are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby 

affirmed. 

Judgment affirmed. 

TYACK and DORRIAN, JJ., concur. 

____________________