[Cite as State v. Schornak, 2015-Ohio-3383.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 GREENE COUNTY 

STATE OF OHIO 

Plaintiff-Appellee

v. 

DONALD G. SCHORNAK 

Defendant-Appellant 

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Appellate Case No. 2014-CA-59 

Trial Court Case No. 2014-CRB-1108 

(Criminal Appeal from Municipal Court) 

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O P I N I O N

Rendered on the 21st day of August, 2015. 

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RONALD C. LEWIS, Atty. Reg. No. 0061980, City Prosecutor’s Office, 101 North Detroit 

Street, Xenia, Ohio 45385 

 Attorney for Plaintiff-Appellee 

 

WILMER J. DECHANT, JR., Atty. Reg. No. 0085084, 3836 Dayton-Xenia Road, 

Beavercreek, Ohio 45432 

Attorney for Defendant-Appellant 

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WELBAUM, J. 
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{¶ 1} Defendant-appellant, Donald G. Schornak, appeals from his conviction in the 

Xenia Municipal Court following his no-contest plea to one count of animals at large. 

Schornak challenges the trial court’s decision finding him guilty after he pled no contest, 

and also alleges his trial counsel was ineffective. For the reasons outlined below, the 

judgment of the trial court will be affirmed. 

Facts and Course of Proceedings 

{¶ 2} On July 11, 2014, Schornak was charged with 15 counts of animals at large 

in violation of R.C. 951.02, all misdemeanors of the fourth degree. The charges arose 

after police discovered 15 of Schornak’s cattle roaming free near a public roadway, as 

well as in a soybean field located in Jasper Township. After entering into a plea 

agreement, Schornak pled no contest to one count in exchange for the remaining 14 

counts being dismissed. Schornak, who was represented by counsel at the plea 

hearing, stipulated on the record that there were sufficient circumstances upon which the 

trial court could make a guilty finding. A representative for the State did not appear at the 

plea hearing. 

{¶ 3} Prior to entering its guilty verdict, the trial court stated the date, time, and 

location of Schornak’s offense. The trial court also confirmed with Schornak that there 

was a hole in his fence where his cattle had escaped. Thereafter, the trial court stated: 

Based on your no contest plea and [your counsel’s] stipulation with your 

specific consent, I will make a finding of guilty. Additionally, I’ve 

independently reviewed the citation—the complaint, the citation, and report 
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and there is sufficient evidence to make the finding of guilty which I have 

made. 

Trans. (Dec. 1, 2014), p. 5. 

{¶ 4} After entering its guilty verdict, the trial court sentenced Schornak to 30 days 

in jail, all of which were suspended on the condition that he not commit any similar 

violations for a period of five years. The trial court also imposed a $150 fine. Schornak 

now appeals from his conviction, raising two assignments of error for review. 

First Assignment of Error 

{¶ 5} Schornak’s First Assignment of Error is as follows: 

THE TRIAL COURT ERRED BY FINDING MR. SCHORNAK GUILTY OF 

LIVESTOCK AT LARGE BY NOT COMPLYING WITH THE 

REQUIREMENTS OF A NO CONTEST PLEA. 

{¶ 6} Under his First Assignment of Error, Schornak contends his no-contest plea 

to animals at large should be overturned and his conviction reversed because the trial 

court failed to obtain an explanation of the circumstances of the offense prior to finding 

him guilty as required by R.C. 2937.07. Specifically, Schornak claims that neither his 

stipulation, nor the documentary evidence reviewed by the trial court, satisfied the 

explanation requirement. 

{¶ 7} Pursuant to R.C. 2937.07, a trial court “may make a finding of guilty or not 

guilty from the explanation of the circumstances of the offense.” The explanation of 

circumstances “serves as the evidence upon which the trial court is to base its finding of 

guilty or not guilty.” State v. Stewart, 2d Dist. Montgomery No. 19971, 2004-Ohio-3103, 
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*3. “Section 2937.07 ‘confers a substantive right on the accused to be discharged by a 

finding of not guilty where the “explanation of circumstances” that the statute requires fails 

to establish all of the elements of the offense,’ or where no explanation of circumstances 

is made at all.” State v. Osterfeld, 2d Dist. Montgomery No. 20677, 2005-Ohio-3180, 

¶ 6, quoting State v. Keplinger, 2d Dist. Greene No. 98-CA-24, 1998 WL 864837, *1 (Nov. 

13, 1998). 

{¶ 8} While “[t]he State bears the burden to ensure that an explanation of 

circumstances appears on the record before a conviction is entered[,]” Id., it is immaterial 

who actually states the explanation on the record. See Keplinger at *2 (finding the court, 

an arresting officer, or even the accused may make the necessary explanation). Accord 

State v. Murphy, 116 Ohio App.3d 41, 45, 686 N.E.2d 553 (9th Dist.1996) (“whether the 

court or the prosecutor recites the explanation into the record is immaterial”). However, 

“the record must affirmatively demonstrate that a sufficient explanation of circumstances 

was made.” Keplinger at *2. 

{¶ 9} “Although R.C. 2937.07 does not define the phrase ‘explanation of 

circumstances,’ it requires evidence sufficient to demonstrate the accused’s criminal 

liability for the offense charged.” (Citation omitted.) Osterfeld at ¶ 6. The requirement 

“ ‘does not mandate that sworn testimony be taken but instead only contemplates some 

explanation of the facts surrounding the offense [so] that the trial court does not make a 

finding of guilty in a perfunctory fashion.’ ” State v. Schroyer, 2d Dist. Montgomery No. 

21659, 2007-Ohio-4573, ¶ 6, quoting State v. Jasper, 2d Dist. Greene No. 2005 CA 98, 

2006-Ohio-3197, ¶ 32, citing Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151, 459 

N.E.2d 532 (1984). 
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{¶ 10} The explanation of circumstances requirement “is not satisfied by a 

presumption that the court was aware of facts which may be gleaned from a review of ‘the 

available documentation.’ ” Keplinger, 2d Dist. Greene No. 98-CA-24, 1998 WL 864837 

at *3, quoting Bowers at 151. Accord State v. Roland, 2d Dist. Champaign No. 2005 CA 

39, 2006-Ohio-3517 at ¶ 7. “Rather, an ‘explanation of circumstances’ necessarily, 

involves, at a minimum, some positive recitation of facts which, if the court finds them to 

be true, would permit the court to enter a guilty verdict and a judgment of conviction on the 

charge to which the accused has offered a plea of no contest. Lacking that, the 

[d]efendant must be found not guilty.” Id., citing Bowers at 151. 

{¶ 11} Nevertheless, “[d]ocumentary evidence may suffice as an explanation of 

the circumstances supporting the charge, provided the record demonstrates that the trial 

court actually considered that evidence in determining [the] [d]efendant’s guilt or 

innocence.” State v. Mazzone, 2d Dist. Montgomery No. 18780, 2001 WL 1141822, *2 

(Sept. 28, 2001), citing Bowers and Chagrin Falls v. Katelanos, 54 Ohio App.3d 157, 159, 

561 N.E.2d 992 (8th Dist.1988). See also Roland at ¶ 7 (“the fact that the court had the 

officer’s offense report in its file did not dispense with the requirement that the record 

reflect that the court considered the offense report, i.e., the explanation of circumstances, 

before finding [the defendant] guilty”). For example, in Mazzone, we affirmed the trial 

court’s guilty finding and thus found a sufficient explanation of circumstances where the 

State submitted documentary evidence supporting the guilty finding and the trial court 

stated that it had based its finding on that evidence. Id. at *1-2; but see State v. Wright, 

7th Dist. Columbiana No. 06 CO 21, 2007-Ohio-4978, ¶ 43 (holding the explanation of 

circumstances requirement was not satisfied based on the trial court’s statement that it 
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had reviewed a LEADS printout because neither the court nor the State read the printout 

into the record). 

{¶ 12} Many courts have also held that the explanation of circumstances 

requirement may be waived. See Broadview Heights v. Burrows, 8th Dist. Cuyahoga 

No. 79161, 2001 WL 1174264, *2 (Oct. 4, 2001); State v. Smyers, 5th Dist. Muskingum 

No. CT03-0039, 2004-Ohio-851, ¶ 12; State v. Ritch, 4th Dist. Scioto No. 97CA2491, 

1998 WL 282970, *3 (May 11, 1998); North Ridgeville v. Roth, 9th Dist. Lorain No. 

03CA008396, 2004-Ohio-4447, ¶ 12; State v. Howell, 7th Dist. Mahoning No. 04 MA 31, 

2005-Ohio-2927, ¶ 20. However, we have held that an offender’s stipulation of guilt 

upon pleading no contest does not by itself waive the requirement. See Roland at 

¶18-20 (finding defendant’s stipulation to be found guilty following a no-contest plea was 

no more than his agreement to be found guilty in accordance with R.C. 2937.07, which 

requires the trial court to obtain an explanation of the circumstances). For instance, in 

Roland, we noted that while there was a stipulation to a finding of guilt, “there was no 

wavier of the explanation of circumstances and, in our judgment no ‘stipulat(ion) of a 

finding of guilt’ without need for reference to the explanation of the circumstances.” Id. at 

¶ 19. 

{¶ 13} As stated previously, Schornak claims the trial court failed to satisfy the 

explanation of circumstances requirement in R.C. 2937.07 when it found him guilty of 

animals at large in violation of R.C. 951.02 following his no-contest plea. Pursuant to 

that statute: 

No person, who is the owner or keeper of horses, mules, cattle, bison, 

sheep, goats, swine, llamas, alpacas, or geese, shall permit them to run at 
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large in the public road, highway, street, lane, or alley, or upon unenclosed 

land, or cause the animals to be herded, kept, or detained for the purpose of 

grazing on premises other than those owned or lawfully occupied by the 

owner or keeper of the animals. 

For the offense to carry criminal liability, the offender must have “recklessly violated 

section 951.02 of the Revised Code.” R.C. 951.99. “A person acts recklessly when, 

with heedless indifference to the consequences, the person disregards a substantial and 

unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to 

be of a certain nature.” R.C. 2901.22(C). 

{¶ 14} With these principles in mind, Schornak first contends his stipulation that 

there were sufficient circumstances in the record to find him guilty does not satisfy the 

explanation of circumstances requirement in R.C. 2937.07. After reviewing the record, 

we agree that the stipulation in this case does not relieve the trial court of its duty to obtain 

an explanation of the circumstances before rendering a guilty verdict on Schornak’s 

no-contest plea. Schornak’s stipulation was essentially the same as that discussed in 

Roland, 2d Dist. Champaign No. 2005 CA 39, 2006-Ohio-3517, wherein the defendant 

stipulated to a finding of guilty upon entering his no-contest plea. Like the defendant in 

Roland, Schornak never explicitly waived the explanation of circumstances requirement. 

In other words, while Schornak agreed there were sufficient circumstances to find him 

guilty, he never waived the trial court’s statutory duty to obtain an explanation of those 

circumstances as required by R.C. 2937.07. Therefore, in following Roland, we agree 

that the stipulation in this case did not relieve the trial court of its duty to obtain an 

explanation of the circumstances before entering its guilty verdict. 
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{¶ 15} Next, Schornak contends the documentary evidence reviewed by the trial 

court was insufficient to satisfy the explanation of circumstances requirement. In support 

of this argument, Schornak claims there was nothing in the documentation establishing 

the element of recklessness. We disagree. 

{¶ 16} The record indicates that upon entering the guilty verdict on Schornak’s 

no-contest plea, the trial court stated it had “independently reviewed the citation—the 

complaint, the citation, and report and there is sufficient evidence to make the finding of 

guilty[.]” Trans. (Dec. 1, 2014), p. 5. The aforementioned documentation relied on by 

the trial court establishes that on July 11, 2014, the police were dispatched to a location 

on Mt. Carmel and Waynesville-Jamestown Roads where 15 head of cattle owned by 

Schornak were found in and around the roadways, as well as in a nearby soybean field. 

The documentation also included written statements from the owners of the soybean field 

indicating they have had an ongoing problem with Schornak’s cattle running loose on 

their property. Their statements also indicated Schornak had been asked to fix his fence 

multiple times, but he has refused. Also, at the plea hearing, Schornak admitted that 

there was a hole in his fence. 

{¶ 17} The foregoing facts satisfy all elements of animals at large in violation of 

R.C. 951.02 and R.C. 951.99. Specifically, Schornak’s recklessness is established by 

his failure to repair the hole in his fence despite repeated problems with his cattle 

escaping and multiple requests for him to make the necessary repairs. Accordingly, the 

documents containing the foregoing facts are sufficient to demonstrate Schornak’s 

criminal liability for the offense charged. Because the trial court stated on the record that 

it had reviewed these documents and correctly found sufficient evidence to find Schornak 
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guilty of the offense, we find that the documents served as the explanation of 

circumstances required by R.C. 2937.07. See Mazzone, 2d Dist. Montgomery No. 

18780, 2001 WL 1141822 at *2; Roland, 2d Dist. Champaign No. 2005 CA 39, 

2006-Ohio-3517 at ¶ 7. 

{¶ 18} In so holding, we note that it is immaterial that the trial court made the 

explanation of circumstances by independently relying on the aforementioned 

documentation as opposed to the documentation being submitted by the State. See

Keplinger, 2d Dist. Greene No. 98-CA-24, 1998 WL 864837 at *2; Murphy, 116 Ohio 

App.3d at 45, 686 N.E.2d 553. Again, there is no requirement in R.C. 2937.07 that the 

explanation of circumstances must come from the State. Rather, all that is required is 

that the trial court “make a finding of guilty or not guilty from the explanation of the 

circumstances of the offense.” R.C. 2937.07. However, we reiterate that it is the 

State’s burden to ensure that an explanation of circumstances appears on the record. 

Osterfeld, 2d Dist. Montgomery No. 20677, 2005-Ohio-3180 at ¶ 6. 

{¶ 19} Schornak’s First Assignment of Error is overruled. 

Second Assignment of Error 

{¶ 20} Schornak’s Second Assignment of Error is as follows: 

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. 

{¶ 21} Under his Second Assignment of Error, Schornak contends his trial counsel 

was ineffective in entering the stipulation to a finding of guilty and in failing to present 

mitigating evidence demonstrating that his conduct was not reckless. We disagree. 

{¶ 22} A claim of ineffective assistance of trial counsel requires both a showing 
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that trial counsel’s representation fell below an objective standard of reasonableness, and 

that the defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. The prejudice prong requires a finding that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different, with a reasonable probability being “a probability 

sufficient to undermine confidence in the outcome.” Id. at 694; see also State v. Bradley, 

42 Ohio St.3d 136, 538 N.E.2d 373 (1989). “Even assuming that counsel’s performance 

was ineffective, the defendant must still show that the error had an effect on the 

judgment.” (Citation omitted.) State v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 

2005-Ohio-6143, ¶ 30. 

{¶ 23} In this case, the outcome of the proceeding would not have been affected 

had counsel not stipulated to Schornak’s guilt. As noted above, the trial court indicated 

on the record that it independently reviewed the citation and incident report and found 

sufficient evidence to find Schornak guilty of the offense at issue. Therefore, even if 

counsel had not made the stipulation, the trial court still would have found Schornak guilty 

based on the information in the aforementioned documents. 

{¶ 24} As for Schornak’s claim that his counsel failed to present mitigating 

evidence showing that he was not reckless, we note that Schornak has not specified what 

mitigating evidence that he is referring to, nor has he demonstrated that any such 

evidence would have affected the outcome of the proceeding. Even if Schornak had 

evidence disputing the written statements indicating that he knew about the problem with 
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his cattle running loose and refused to fix the hole in his fence, Schornak has not 

demonstrated that the trial court would have believed his evidence over the written 

statements in the incident report. 

{¶ 25} For the foregoing reasons, Schornak’s ineffective assistance claim fails and 

his Second Assignment of Error is overruled. 

Conclusion 

{¶ 26} Having overruled both assignments of error raised by Schornak, the 

judgment of the trial court is affirmed. 

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FAIN, J. and DONOVAN, J., concur. 

Copies mailed to: 

Ronald C. Lewis 

Wilmer J. Dechant, Jr. 

Hon. Michael K. Murry