[Cite as State v. Dehart , 2020-Ohio-3897.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v.

DAVID DEHART Defendant-Appellant : : : : : : : : : : Appellate Case No. 28356

Trial Court Case No. 2018-CR-4839 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 31st day of July, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek, Ohio 45432 Attorney for Defendant-Appellant

. . . . . . . . . . . . . WELBAUM, J.-2- {¶ 1} Defendant-appellant, David Dehart, appeals from his conviction in the Montgomery County Court of Common Pleas after he pled guilty to one count of domestic violence. In support of his appeal, Dehart claims that his gui lty plea was not knowingly, intelligently, and voluntarily entered. For the reasons outlin ed below, the judgment of the

trial court will be affirmed.

Facts and Course of Proceedings {¶ 2} On January 4, 2019, a Montgomery County Grand Jury returned an indictment charging Dehart with one count of domestic violence in violation of R.C. 2919.25(A). The indictment indicated that the charge was a thi rd-degree felony due to Dehart having two prior domestic violence convictions. See R.C. 2919.25(D)(4). The indicted charge arose after Dehart assaulted his 75-year-old, i nvalid mother with whom

he lived. {¶ 3} The matter was scheduled for a jury trial on March 11, 2019. O n the day of trial, Dehart instead decided to plead guilty to the indicted c harge. In exchange for Dehart’s guilty plea, the State agreed to stand silent as to a motion for judicial release, but made no agreement with regard to sentencing. {¶ 4} After learning that Dehart wanted to plead guilty, the trial co urt conducted a Crim.R. 11 plea colloquy. As part of the colloquy, the trial c ourt had the State recite the elements of the domestic violence charge in question, i.e., tha t Dehart did knowingly cause or attempt to cause physical harm to a family or househol d member. R.C. 2919.25(A). Dehart indicated that he understood the domestic v iolence charge and that a plea of guilty was an admission of guilt to that charge. At the end of the colloquy, the-3- trial court asked Dehart if he ha d any questions, to which Deha rt responded as follows: Your Honor, I just – I just want to state the fact that I – I’m not one to hurt or I did not hurt my mother. I’m a great person. I’m a l aw-abiding citizen. I have one child. And I know she’s going to be terri bly torn apart about this if I go to prison. I humbly, respectfully, please p robation, so I can go home with her. I mean, I love her to death. I work ver y hard. I’ve had a full-time job since I was 14. I went back to school last year. I’m severely depressed. I mean, I’ve been hurt – this – everyone g ets hurt. I’m just an emotional person. I just – I – (indiscernible) is to go home on probation. I love my mother. Trans. (Mar. 11, 2019), p. 9. {¶ 5} Following Dehart’s statement, the State noted its concern that Dehart had “cast a cloud” on his admission of guilt when he stated that he did not hurt his mother.

Id . at 10. As a result, the State requested that the trial court have Dehart clarify on the record that he still agreed he committed domestic violence by c ausing or attempting to cause physical harm to his mother. The trial court saw no issu e with Dehart’s statement and denied the State’s request for clarification. Dehart there after entered a guilty plea to the domestic violence charge, which the trial court accepted . The trial court then ordered a presentence investigation and scheduled the matter fo r sentencing. At sentencing, the trial court ordered Dehart to serve 36 months i n prison. {¶ 6} Dehart appealed from his conviction, and his appellate counsel filed a brief under the authority of Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous issues for a ppeal. Upon conducting-4- an independent review of the record as required by Anders , this court found at least one non-frivolous issue for appeal concerning whether Dehart’s guil ty plea was knowingly, intelligently, and voluntarily ent ered. Therefor e, this court rejected Dehart’s Anders brief and appointed new appellate counsel to Dehart. Dehart’s new ap pellate counsel then filed an appellate brief on Dehart’s behalf raising a single as signment of error for review.

Assignment of Error {¶ 7} Under his sole assignment of error, Dehart contends that his gu ilty plea to domestic violence was not knowingly, intelligently, and volunta rily entered because he denied a material element of the offense at the plea hearing an d contradicted his guilty plea when he told the trial court that he did not hurt his moth er. We disagree. {¶ 8} “To be constitutionally valid and comport with due process, a g uilty plea must be entered knowingly, intelligently, and voluntarily.” State v. Bateman , 2d Dist. Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Compliance with the proc edures set forth in Crim.R. 11(C) ensures that a plea meets this constitutional man date. State v. Cole , 2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12. Crim.R. 11(C ) “ensures an adequate record on review by requiring the trial court to perso nally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandingly and voluntarily made.” State v. Stone , 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975). {¶ 9} In this case, Dehart does not dispute that the trial court comp lied with Crim.R. 11(C) at his plea hearing. Instead, Dehart claims that the tri al court should not have accepted his guilty plea because he contradicted his plea when he told the trial court that-5- he did not hurt his mother. D ehart’s claim lacks merit. {¶ 10} To be guilty of domestic violence, one must “knowingly cause or attempt to cause physical harm to a family or household member.” (Emphasi s added.) R.C. 2919.25(A). Therefore, no actual physical harm is required; an attempt to cause physical

harm is sufficient to constitute the offense. State v. Younker , 2d Dist. Darke No. 02CA1581, 2002-Ohio-5376, ¶ 23. Because only an attempt to cau se physical harm is necessary to be found guilty of domestic violence, Dehart’s sta tement that he did not hurt his mother did not contradict his guilty plea to that offense. As noted above, Dehart could have committed domestic violence simply by attempting to physic ally harm his mother. {¶ 11} Moreover, when reviewing Dehart’s entire statement to the trial court, it becomes clear that the purpose of Dehart’s statement was not to deny the domestic violence charge. Instead, Dehart’s statement provided the tria l court with reasons to impose probation as opposed to a prison term. For example, aft er stating that he did not hurt this mother, Dehart went on to describe himself as a great person, a law-abiding citizen, a hard worker, a depressed and emotional person, and a parent whose child would be “torn apart” if he went to prison. Trans. (Mar. 11, 2 019), p. 9. After mentioning all of these perceived qualities, Dehart asked to be placed on probation. Therefore, when considering Dehart’s entire statement, the effect of his s tatement was not to deny that he had committed domestic violence, but to request lenienc y at sentencing. {¶ 12} For the foregoing reasons, Dehart’s sole assignment of error is overruled.

Conclusion {¶ 13} Having overruled Dehart’s assignment of error, the judgment of the trial

court is affirmed.-6-

. . . . . . . . . . . . .

DONOVAN, J. and FROELICH, J., concur.

Copies sent to: Mathias H. Heck, Jr. Sarah E. Hutnik Chris Beck David Dehart Hon. Gregory F. Singer