[Cite as State v. Hollobaugh, 2012-Ohio-2620.]

COURT OF APPEALS 

MORGAN COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsERIC HOLLOBAUGH 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 11-AP-0006 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Morgan County 

Court of Common Pleas, Case No. 10-CR0007 

JUDGMENT: Vacated and Remanded 

DATE OF JUDGMENT ENTRY: June 11, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

MARK HOWDYSHELL DEBORAH LAMNECK 

Prosecuting Attorney Gottlieb, Johnston, Beam & Dal Ponte 

19 East Main Street 2640 Glenn Circle 

McConnelsville, OH 43756 Zanesville, OH 43701-9408 
[Cite as State v. Hollobaugh, 2012-Ohio-2620.]

Gwin, P.J. 

{¶1} Defendant Eric Hollobaugh appeals a judgment of the Court of Common 

Pleas of Morgan County, Ohio, which accepted his plea of guilty to three counts of 

trafficking in drugs in the vicinity of a juvenile in violation of RC.2925.03. Appellant 

assigns a single error to the trial court: 

{¶2} I. THE TRIAL COURT ERRED WHEN IT ACCEPTED THE 

APPELLANT’S GUILTY PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY, 

AND VOLUNTARILY MADE.” 

{¶3} At the change of plea hearing, the court engaged in a Crim. R. 11 colloquy 

before accepting appellant’s guilty plea. The court reviewed appellant’s constitutional 

rights and ascertained appellant had no mental or physical impairments and was not 

under the influence of any alcohol or drug. The court explained the charges against 

appellant, advising him that “***you could be sentenced to prison for a definite term of 

either two, three, four, five, six, seven, or eight years on each count and fined up to 

$15,000.00 on each count***”. The court also advised appellant it could order that he 

serve his prison sentences consecutively. 

{¶4} Appellant signed a written waiver of rights, which stated, among other 

things, that he understood the court could impose more than a minimum prison term, it 

could impose a maximum term, and it could run the sentences consecutively. The 

waiver also stated the court “may” impose a prison term rather than community control. 

The court deferred sentencing until a pre-sentence investigation was completed. 
Morgan County, Case No. 11-AP-0006 3 

{¶5} The offenses to which appellant pled guilty carry a mandatory prison term 

and appellant was not eligible for probation or early release. The court informed 

appellant of this at the sentencing hearing. 

{¶6} Crim. R. 11 (C) states in pertinent part: 

(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 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. 

A defendant’s plea in a criminal case must be made knowingly, 

intelligently, and voluntarily, and if it is not, enforcement of the plea is 

unconstitutional under both the United States Constitution and the Ohio 

Constitution. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 

450. 

The court is required to discuss both constitutional and nonconstitutional rights before accepting a guilty plea. A court’s discussion of 

constitutional rights must be in strict compliance with the Rule. See, e.g., State v. 

Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E. 2d 621, syllabus; State 

v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the 

syllabus. However, a court must only substantially comply with the Rule in 
Morgan County, Case No. 11-AP-0006 4 

ensuring the defendant understands his or her non-constitutional rights. State v. 

Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, citing State v. 

Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Substantial compliance 

has been defined to mean under the totality of the circumstances the defendant 

subjectively understands the implication of his plea and the rights he is waiving. 

Nero at 108. 

{¶7} Appellant argues the court did not substantially comply with Crim. R. 11 

because at the time it accepted his plea, it had misled him into believing he could be 

eligible for probation or parole when in fact he faced a mandatory sentence. 

{¶8} In State v. Stewart, 51 Ohio St. 2d 86, 364 N.E. 2d 1163 (1977), the 

Supreme Court reviewed a case wherein the defendant was charged with two counts of 

aggravated murder with specifications, kidnapping, and aggravated robbery. The 

defendant pled to the lesser included offense of murder and the other charges were 

dismissed. The defendant was not informed he was not eligible for probation, but the 

Supreme Court found the defendant subjectively knew he would not be eligible for 

probation, and further, he had not demonstrated prejudice. 

{¶9} In Nero, supra the Supreme Court of Ohio found substantial compliance 

with Crim.R. 11(C)(2)(a) when the record clearly showed defendant knew that he was 

going to be incarcerated and even asked for time to straighten out his affairs. 

{¶10} In State v. Abuhashish, 6th Dist. No. WD–07–048, 2008–Ohio–3849, the 

court found substantial compliance because the prosecution mentioned the mandatory 

sentence at the plea hearing when it asked the court to revoke the defendant’s bond, 

and because the written guilty plea correctly stated the offense carried a mandatory 
Morgan County, Case No. 11-AP-0006 5 

sentence. Id. ¶35. But see, State v. Wilson, 55 Ohio App. 2d 64, 379 N.E.2d 273, (1st 

Dist. 1978) wherein the court of appeals found the Rule requires an oral dialogue 

between the court and the defendant, and a written plea is simply not an adequate 

substitute. 

{¶11} In State v. Fink, 11th Dist. No. 2006-A-0035, 2007-Ohio-5220, the Court of 

Appeals for Ashtabula County found substantial compliance although the court 

mistakenly advised the defendant he was technically eligible for probation. The court 

found the defendant was subjectively aware he would not be sentenced to probation 

when the court informed him a waiver of the pre-sentence investigation report precluded 

probation. The defendant had been charged with sixty counts of rape, each with the 

specification of a victim less than ten years of age, thirty-seven counts of pandering 

obscenity involving a minor, fourth degree felonies, thirty-seven counts of pandering 

obscenity involving a minor, second degree felonies, and twenty-two counts of 

pandering sexually oriented matters involving a minor. We find as in Stewart, supra, the 

severity of the charges alone might convince a defendant he was not going to avoid 

prison. 

{¶12} Here the offenses charged were not as serious as in Stewart, and unlike

Abuhashish, the guilty plea appellant signed does not state the offenses carry a 

mandatory sentence. 

{¶13} In State v. Howard, 2nd Dist. No. 06–CA–29, 2008–Ohio–419, the Second 

District found the defendant could not have understood the effect of his plea when the 

trial court misadvised him he would be eligible for community control. The court 

reasoned the Supreme Court deemed ineligibility for community control sanctions to be 
Morgan County, Case No. 11-AP-0006 6 

a sufficiently important factor in choosing to plead guilty or no contest that it was 

incorporated in Crim. R. 11(C)(2)(a) as a subject that must be specifically addressed. 

Id. ¶ 25. 

{¶14} The Twelfth District reached a similar result in State v. Phillips, 12th Dist. 

No. CA2008–05–126, 2009–Ohio–1448, finding where the trial court affirmatively 

misinformed the defendant about his eligibility for community control, it had completely 

failed to comply with the Rule. Id. ¶19. Likewise, in State v. Farley, 1st Dist. No. 

C0100478, 2002–Ohio–1142, the appeals court found a trial court has not substantially 

complied with the Rule if it misinforms a defendant about his or her eligibility for 

community control. The court found the prospect of probation or community control is a 

factor weighing heavily in favor of the decision to enter guilty or a no contest plea. 

{¶15} The Farley court opined it could not assume the defendant would have 

entered his guilty plea if he had been properly advised. Howard did not discuss whether 

the record showed actual prejudice, implying the prejudice is implicit. In Phillips, the 

court found it did not need to address the issue of prejudice because failure to properly 

advise the defendant of his ineligibility for probation constituted a complete failure to 

comply with the requirements of the Rule. 

{¶16} We find the trial court erred and misled appellant prior to accepting his 

guilty plea. We find further there is no indication appellant subjectively knew he faced a 

mandatory sentence. We conclude the court did not substantially comply with the 

requirements of Crim. R. 11, and should not have accepted the plea of guilty. 

{¶17} The assignment of error is sustained. 
Morgan County, Case No. 11-AP-0006 7 

{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Morgan County, Ohio, is vacated, and the cause is remanded to the court for further 

proceedings in accord with law and consistent with this opinion. 

By Gwin, P.J., 

Hoffman, J., and 

Wise, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. JOHN W. WISE 

WSG:clw 0522
[Cite as State v. Hollobaugh, 2012-Ohio-2620.]

IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

ERIC HOLLOBAUGH : 

 : 

 : 

 Defendant-Appellant : CASE NO. 11-AP-0006 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Court of Common Pleas of Morgan County, Ohio, is vacated, and the cause is 

remanded to the court for further proceedings in accord with law and consistent with this 

opinion. Costs to appellee. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. JOHN W. WISE