[Cite as State v. Baker, 2019-Ohio-1808.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

BELMONT COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

TERRY ALLEN BAKER, JR., 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 BE 0021 

 

Criminal Appeal from the 

County Court, Northern Division, of Belmont County, Ohio 

Case No. 17CRB00748 

BEFORE: 

Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Dan Fry, Belmont County Prosecuting Attorney and Atty. Kevin Flanagan, Chief 

Criminal Assistant Prosecuting Attorney, Courthouse Annex No. 1, 147-A West Main 

Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee, No Brief Filed. 

Atty. John D. Falgiani, Jr., P.O. Box 8533, Warren, Ohio 44484 and 

Atty. Wesley A. Johnston, P.O. Box 6041, Youngstown, Ohio 44501, for DefendantAppellant. 

 

Dated: May 7, 2019 

 
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Case No. 18 BE 0021

WAITE, P.J. 

{¶1} Appellant Terry Allen Baker, Jr. appeals a decision in the Belmont County 

Court, Northern Division on March 14, 2018, denying his motion to vacate a guilty plea. 

In this matter, Appellant argues that the trial court failed to conduct a meaningful dialogue 

regarding his constitutional rights at his plea hearing and that he did not have an 

opportunity to speak to his appointed counsel before the hearing. For the following 

reasons, Appellant’s arguments are meritless and the judgment of the trial court is 

affirmed. We note that this appeal was consolidated with Appellant’s appeal in case 

number 18 BE 0018 which is separately addressed, for ease of understanding. 

Factual and Procedural History 

{¶2} Some background information is necessary in this case. On March 30, 

2012, Appellant was convicted on one count of conveyance of certain prohibited items 

onto the property of state facilities, a third degree felony. Appellant pleaded guilty in 

Belmont County Common Pleas Court as part of an agreement to enter drug court. 

Pursuant to the agreement, Appellant’s sentence was held in abeyance pending his 

satisfactory completion of all requirements of the drug court. 

{¶3} Several times between March 30, 2013 and August 1, 2014, Appellant was 

found to be noncompliant during his drug court reviews. In the seven instances of 

noncompliance, the common pleas court utilized various sanctions in an attempt to keep 

Appellant in the drug court program. Finally, on September 11, 2014, the state filed a 

motion to terminate Appellant’s drug court agreement after the court again found him 

noncompliant for the eighth time. 
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{¶4} When the common pleas court issued a warrant for Appellant’s arrest he 

absconded, and the court granted the state’s motion to terminate Appellant from drug 

court in absentia. On April 30, 2015, Appellant was located and arrested pursuant to the 

warrant. On May 21, 2015, the common pleas court sentenced Appellant to thirty months 

of incarceration, with credit for fifty-seven days served and imposed a three-year 

postrelease control term. 

{¶5} On November 19, 2015, Appellant filed a motion for judicial release. The 

common pleas court denied that motion, but on February 23, 2016, Appellant filed a 

second motion for judicial release, which was granted on May 3, 2016. Appellant’s 

sentence was amended to three years of community control and 100 hours of community 

service and the judgment entry specified that the balance of Appellant’s original sentence 

would be reimposed if he violated the terms of his community control sanction. 

{¶6} After serving a portion of his community control sanction in the Eastern Ohio 

Correction Center, Appellant was released to serve the remainder of his term under the 

supervision of the Ohio Adult Parole Authority. However, on November 17, 2017, 

Appellant was charged with one count of theft, a misdemeanor of the first degree in 

violation of R.C. 2913.02(A)(1). On January 31, 2018, Appellant pleaded guilty in the 

Belmont County Court, Northern Division. Although the record is limited, it appears that 

the charges arose from an incident at WalMart. While Appellant was also charged with 

unrelated domestic violence and child restraint charges during the same time period, 

these were later dismissed by the state. It is from this guilty plea that Appellant now 

appeals. 
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{¶7} Following this plea, on February 22, 2018, the state filed a motion to revoke 

Appellant’s community control sanction with the common pleas court. The state alleged 

that Appellant violated the terms of his probation due to the instant theft conviction. 

{¶8} On March 12, 2018, Appellant filed a motion to withdraw his guilty plea to 

the theft in the Belmont County Court. After a hearing, the trial court denied Appellant’s 

motion. 

{¶9} On March 19, 2018, the common pleas court determined that Appellant had 

violated his probation due to his theft conviction and sentenced Appellant to the balance 

of his original prison sentence for the conveyance conviction, thirty months of 

incarceration with credit for 563 days served. 

{¶10} On March 28, 2018, Appellant filed a pro se motion to appeal the trial court’s 

denial of his motion to withdraw his plea. Two days later, appointed counsel filed a timely 

notice of appeal. On April 4, 2018, the trial court granted Appellant’s motion to stay 

execution of his sentence. We again note that, while appeal in this matter was 

consolidated with the appeal of the revocation of his community control, that appeal is 

addressed separately. The state failed to file a brief in either case. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO 

WITHDRAW GUILTY PLEA. 

{¶11} Appellant argues that the trial court in this matter failed to conduct a 

meaningful dialogue with him as to his constitutional rights when entering his guilty plea. 

Further, Appellant argues that he was not given an opportunity to speak to his appointed 
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Case No. 18 BE 0021

counsel before entering the plea. Because of the circumstances surrounding his case 

and his pending matters in common pleas court, he argues that he felt coerced into 

pleading guilty. 

{¶12} “Crim.R. 11 governs the advisements that must be made at plea hearing 

prior to accepting a no contest, guilty or not guilty plea.” State v. Durkin, 7th Dist. 

Mahoning No. 13 MA 36, 2014-Ohio-2247, ¶ 10. Crim.R. 11(D) governs misdemeanor 

cases that involve “serious offenses” whereas Crim.R. 11(E) governs misdemeanor cases 

that involve “petty offenses.” Any misdemeanor with a penalty that includes confinement 

for more than six months constitutes a “serious offense.” Crim.R. 2(C). A “petty offense” 

is any misdemeanor that does not rise to a serious offense. Crim.R. 2(D). 

{¶13} Appellant pleaded guilty to theft, a misdemeanor of the first degree. The 

maximum penalty for a misdemeanor of the first degree is one hundred eighty days (six 

months), in jail. R.C. 2929.24(A)(1). As the maximum penalty is no more than six months, 

theft is a petty offense and the plea is governed by Crim.R. 11(E). Crim.R. 11(E) provides 

that a trial court “shall not accept such pleas without first informing the defendant of the 

effect of the plea of guilty, no contest, and not guilty.” 

{¶14} When informing a defendant of the effect of a plea, a trial court must comply 

with Crim.R. 11(B). Crim.R. 11(B) provides that: 

(1) The plea of guilty is a complete admission of the defendant's guilt. 

(2) The 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, 
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Case No. 18 BE 0021

or complaint, and the plea or admission shall not be used against the 

defendant in any subsequent civil or criminal proceeding. 

(3) When a plea of guilty or no contest is accepted pursuant to this rule, the 

court, except as provided in divisions (C)(3) and (4) of this rule, shall 

proceed with sentencing under Crim.R. 32. 

{¶15} In other words, before the trial court may accept a guilty plea to a 

misdemeanor for a petty offense, the court must inform the defendant that a guilty plea 

constitutes a complete admission of guilt. State v. Giovanni, 7th Dist. Mahoning No. 07 

MA 60, 2008-Ohio-2924, ¶ 45, citing State v. Jones, 116 Ohio St.3d 211, 2007-Ohio6093, 877 N.E.2d 677, ¶ 25. A trial court must substantially comply with this requirement. 

State v. Ramey, 7th Dist. Mahoning No. 13 MA 64, 2014-Ohio-2345, ¶ 12, citing State v. 

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. 

{¶16} At the plea hearing, the trial court stated: “[d]o you understand that when 

you enter a guilty plea, you are making a complete admission of your guilt, and that you’re 

giving up all of your Constitutional rights?” (1/31/18 Plea Hrg., pp. 8-9.) As the trial court 

clearly informed Appellant that his guilty plea constituted a complete admission of guilt, 

the court complied with Crim.R. 11(E). 

{¶17} Appellant’s claim that he was not given an opportunity to speak to his 

appointed counsel is also unsupported by the record. At an initial hearing held December 

20, 2017, the trial court gave Appellant his appointed counsel’s contact information and 

instructed him to initiate contact. Later, Appellant conceded that he did not attempt to call 

his appointed counsel until the day before his plea hearing. At his plea hearing, Appellant 
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Case No. 18 BE 0021

was given the option of pleading guilty or continuing trial in order for him to have a full 

discussion with his counsel. The following conversation occurred at the plea hearing: 

[Counsel]: Okay. If you don’t want to do this, we’ll have to continue it so 

you can talk to me. 

So, I’m not forcing you to do anything, but you can resolve it with a plea. 

He’s recommending probation, community service, there’s no restitution. 

Or I continue it, and you can talk to me at a later date, but before the next 

Court hearing. 

I’m not forcing you to do that. 

[Appellant]: I don’t mind doing that. I just want to ask – 

[Counsel]: Do you want to resolve it today? 

[Appellant]: - yeah. 

(1/31/18 Plea Hrg. Tr., pp. 7-8.) 

{¶18} The record shows that Appellant’s lack of communication with his appointed 

counsel was due to his own action. First, he failed to timely initiate contact. He also 

declined the opportunity to continue the case in order to discuss the matter more fully with 

his counsel. While his guilty plea in county court clearly resulted in revocation of his 

community control in common pleas court, Appellant’s lack of diligence and his voluntary 

agreement to plead guilty to theft instead of asking for the matter to be continued caused 
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this result. This record reveals absolutely no error on the part of the trial court. 

Accordingly, Appellant’s sole assignment of error is without merit and is overruled. 

Conclusion 

{¶19} Appellant argues that the trial court failed to conduct a meaningful dialogue 

of his constitutional rights and he did not have an opportunity to speak to his appointed 

counsel before his plea hearing. For the reasons provided, Appellant’s arguments are 

without merit and the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

D’Apolito, J., concurs. 
[Cite as State v. Baker, 2019-Ohio-1808.]

 

 

For the reasons stated in the Opinion rendered herein, the assignment of error 

is overruled and it is the final judgment and order of this Court that the judgment of the 

County Court, Northern Division, of Belmont County, Ohio, is affirmed. Costs waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.