[Cite as State v. Montanez, 2020-Ohio-1023.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 108093 

 v. : 

 

JOSE MONTANEZ, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 19, 2020 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-17-616186-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Aqueelah A. Jordan, Assistant Prosecuting 

Attorney, for appellee. 

Jerome M. Emoff, for appellant. 

EILEEN T. GALLAGHER, A.J.: 

This cause came to be heard on the accelerated calendar pursuant to 

App.R. 11.1 and Loc.App.R. 11.1. Defendant-appellant, Jose Montanez, appeals his 

convictions and claims the following two errors: 
1. An inadequate inquiry by a trial court during a Crim.R. 11 colloquy 

renders a subsequent guilty plea void. 

2. The trial court failed to strictly comply with Crim.R. 11 thereby 

rendering appellant’s plea void. 

We find no merit to the appeal and affirm. 

I. Facts and Procedural History 

Montanez was charged with two counts of rape, five counts of 

kidnapping, two counts of gross sexual imposition, and one count each of attempted 

rape and compelling prostitution. Pursuant to a plea agreement, Montanez pleaded 

guilty to two counts of rape and two counts of gross sexual imposition. The 

remaining counts were nolled. 

Montanez later asserted at the sentencing hearing that he did not 

remember pleading guilty to two counts of rape and indicated that he wanted to 

withdraw his guilty pleas. The court, the prosecutor, and defense counsel, however, 

collectively recalled that Montanez pleaded guilty to two counts of rape. (Tr. 154.) 

Their recollections were consistent with the judge’s notes, the journalization of the 

plea hearing, the presentence investigation report, a mitigation of penalty report, 

and the transcript of the plea hearing. Therefore, the court overruled defense 

counsel’s request for leave to file a motion to withdraw Montanez’s guilty pleas and 

proceeded with sentencing. The court sentenced Montanez to eight years on the 

rape charge alleged in Count 1, 24 months on each of the gross sexual imposition 

charges alleged in Counts 3 and 7, and eight years on the second rape charge alleged 
in Count 9. The court ordered the sentences to run consecutively for an aggregate 

20-year sentence. This appeal followed. 

II. Law and Analysis 

A. Effect of Medication 

In the first assignment of error, Montanez argues the trial court failed 

to ensure that he entered his guilty pleas knowingly, intelligently, and voluntarily 

because the court failed to adequately inquire into the effect Montanez’s anxiety 

medication had on his ability to understand the proceedings. 

A defendant’s guilty plea must be made knowingly, intelligently, and 

voluntarily. “Failure on any of those points renders enforcement of the plea 

unconstitutional under both the United States Constitution and the Ohio 

Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996); see 

also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. As 

the Ohio Supreme Court explained in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio3748, 893 N.E.2d 462: 

A criminal defendant’s choice to enter a plea of guilty or no contest is a 

serious decision. The benefit to a defendant of agreeing to plead guilty 

is the elimination of the risk of receiving a longer sentence after trial. 

But, by agreeing to plead guilty, the defendant loses several 

constitutional rights. * * * The exchange of certainty for some of the 

most fundamental protections in the criminal justice system will not be 

permitted unless the defendant is fully informed of the consequences 

of his or her plea. Thus, unless a plea is knowingly, intelligently, and 

voluntarily made, it is invalid. 

Id. at ¶ 25. 
In considering whether a criminal defendant knowingly, intelligently, 

and voluntarily entered a guilty plea, we first review the record to determine whether 

the trial court complied with Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128, 

566 N.E.2d 658 (1991). Crim.R. 11(C) sets forth certain constitutional and 

procedural requirements with which the trial court must comply prior to accepting 

a guilty plea. Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in 

a felony case without personally addressing the defendant 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. 

Crim.R. 11(C)(2). 

The purpose of Crim.R. 11(C) is “‘to convey to the defendant certain 

information so that he [or she] can make a voluntary and intelligent decision 

whether to plead guilty.’” State v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-
Ohio-294, ¶ 12, quoting State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 

115 (1981). When a trial court complies with Crim.R. 11(C)(2) in accepting a plea, 

there is a presumption that the defendant’s plea was knowingly, intelligently, and 

voluntarily made. See, e.g., State v. Alexander, 8th Dist. Cuyahoga No. 103754, 

2016-Ohio-5707, ¶ 11; State v. Murray, 12th Dist. Brown No. CA2015-12-029, 2016-

Ohio-4994, ¶ 20. 

Montanez advised the court at the plea hearing that he was taking 

medication for anxiety and panic attacks. The court asked what medication he was 

taking, and Montanez informed the court that he was taking Buspar. The court 

followed up with additional questions to determine if the medication was affecting 

Montanez’s ability to understand the Crim.R. 11 colloquy: 

THE COURT: You are taking some medication. When are you 

supposed to take it? 

THE DEFENDANT: 9:00 in the morning I take 20 milligrams and 20 

milligrams at 4:00 in the afternoon. 

THE COURT: Did you have your dosage yesterday afternoon? 

THE DEFENDANT: Yes. 

THE COURT: Have your dosage this morning? 

THE DEFENDANT: Yes. 

THE COURT: Okay. Does your medication at all impact on your ability 

to think clearly, to hear clearly and understand what’s going on at all? 

THE DEFENDANT: When it first starts kicking in, I feel a pulsation in 

my head, the whole front of my head. 

THE COURT: How are you feeling right now? It’s about 10:00 now, 

10:05. How are you feeling now? 
THE DEFENDANT: Nervous. 

THE COURT: Well that’s natural. Are you otherwise thinking clearly, 

understanding what we’re talking about, everything like that? 

THE DEFENDANT: 80 percent. 

THE COURT: Okay. Is there something that I’ve said so far or that is 

happening so far that you’re not clear on? 

THE DEFENDANT: No, not yet. 

THE COURT: If that happens, would you make sure you let me know 

because I will be — like I said, we will be going back and forth with these 

questions, and I can only rely upon what your answers are. Okay? 

THE DEFENDANT: Okay. 

(Tr. 147-149.) Despite Montanez’s argument to the contrary, the court thoroughly 

inquired into the nature of Montanez’s anxiety medication and any effects it might 

have on his understanding. 

This court has held that where a trial court complies with the dictates 

of Crim.R. 11(C), the resulting guilty plea is presumed valid even though the 

defendant took medication that could impact the defendant’s ability to think clearly 

and rationally as long as the record supports that finding. See, e.g., State v. Brown, 

8th Dist. Cuyahoga No. 103835, 2016-Ohio-5415. In Brown, the defendant 

informed the court during a plea hearing that he was on medication for depression 

and that his medication sometimes interferes with his ability to think rationally. Id. 

at ¶ 22. When the court inquired as to whether the defendant was thinking clearly 
and rationally on the morning of his plea hearing, the defendant responded: “I don’t 

know.” Id. at ¶ 22. 

On further questioning, the defendant informed the court that he had 

discussed the plea to his satisfaction with counsel and agreed to inform the court 

that if he did not understand something during the hearing, he would stop the court 

and ask for an explanation. Based on this inquiry and the fact that the trial court 

complied with the requirements of Crim.R. 11(C), this court concluded that the 

defendant entered his guilty pleas knowingly, intelligently, and voluntarily even 

though he was on medication that occasionally affected his thinking. Id. at ¶ 25. 

As in Brown, Montanez indicated that he was satisfied with the legal 

services provided to him by defense counsel. (Tr. 139-140.) Although he indicated 

that his thinking was not entirely clear at time of the plea hearing, he agreed to 

inform the court if he did not understand any aspect of the plea proceedings. (Tr. 

138-139.) The trial court explained each of Montanez’s constitutional rights and 

Montanez indicated that he understood each one. Montanez also indicated that he 

understood the maximum penalties he could receive, his required subjection to 

postrelease control, and his mandatory sex-offender registration. (Tr. 143-147.) 

After completing the colloquy, the court again asked if Montanez 

understood everything by asking: “Anything that you can think of that we went over 

that you are not crystal clear on that we can answer a question for you or help to 

clear up for you?” Montanez replied: “I understood everything.” (Tr. 147-148.) 
Despite Montanez’s argument to the contrary, the court dutifully 

inquired into whether Montanez’s anxiety medication affected his ability to enter a 

knowing, intelligent and voluntary guilty plea. Based on the trial court’s careful 

questioning and Montanez’s responses to those questions, we find no reason to 

doubt that Montanez understood the proceedings and was capable of entering his 

guilty pleas knowingly, intelligently, and voluntarily. 

Therefore, the first assignment of error is overruled. 

C. Right to Trial 

In the second assignment of error, Montanez argues his guilty pleas 

should be vacated because the trial court failed to explain that he was waiving his 

right to a jury trial by pleading guilty. He also contends the trial court failed to 

ensure that Montanez understood he would be subjected to mandatory prison time 

and postrelease control. 

A trial court must strictly comply with those provisions of Crim.R. 

11(C)(2) that relate to the waiver of constitutional rights. Veney, 120 Ohio St.3d 176, 

2008-Ohio-5200, 897 N.E.2d 621, at syllabus. When the trial court fails to explain 

the constitutional rights set forth in Crim.R. 11(C)(2)(c), it is presumed the plea was 

entered involuntarily and is therefore invalid. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, 893 N.E.2d 462, at ¶ 31. However, failure to use the exact language 

contained in Crim.R. 11(C) in informing a criminal defendant of his constitutional 

rights is not grounds for vacating a plea as long as the record shows that the trial 

court explained these rights in a manner reasonably intelligible to the defendant. Id. 
at ¶ 18 (exact language is preferred, but rote recitation of the rule is not required for 

strict compliance), citing State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 

115 (1981). 

The trial court reviewed Montanez’s constitutional rights with him in 

a reasonably intelligent manner. The court prefaced the explanation of each 

individual right by informing Montanez that “by entering into this plea here today, 

you will be waiving or giving up these rights that we typically refer to as being trial 

rights.” (Tr. 140-141.) With respect to the waiver of Montanez’s right to a jury trial, 

the court explained that Montanez “[had] the right to go to trial in this case * * * and 

the jury [had] to be unanimous in their decision as to [his] guilt or [his] innocence.” 

(Tr. 141.) The court also explained that Montanez could waive his right to a jury trial 

“and have [the court] make the decision in what is referred to as a bench trial.” (Tr. 

141.) The court asked Montanez if he understood these rights, and Montanez 

replied, “Yes.” (Tr. 141.) 

The court further explained the government’s burden to prove his 

guilt beyond a reasonable doubt as well as the defendant’s rights to call and crossexamine witnesses, to invoke the court’s subpoena power, to testify on his own 

behalf, and to remain silent. The court asked Montanez if he understood these 

rights, and Montanez again replied: “Yes.” (Tr. 142.) Therefore, the record reflects 

that the trial court explained the waiver of Montanez’s constitutional rights in a 

manner in which he could reasonably understand. 
Montanez nevertheless contends the trial court failed to explain the 

mandatory nature of both his prison sentence and postrelease control. 

A trial court must substantially comply with the requirements of 

Crim.R. 11(C)(2)(a) when explaining nonconstitutional rights such as the right to be 

informed of the maximum penalty involved. Veney at ¶ 14, citing State v. Stewart, 

51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). “Substantial compliance means that 

under the totality of the circumstances the defendant subjectively understands the 

implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 

106, 108, 564 N.E.2d 474 (1990), citing Stewart at 92-93. 

The trial court explained at the plea hearing that Montanez’s guilty 

pleas would result in a mandatory prison sentence. The court advised Montanez 

that he was pleading guilty to two counts of rape, which were first-degree felonies. 

(Tr. 143.) With respect to penalties, the court explained: “Now, each felony of the 

first degree is punishable by a potential term of incarceration in yearly increments 

of between 3 and 11 years in the state penitentiary.” Thus, the court explained that 

each rape conviction carried a minimum of three years in prison. Moreover, the 

court discussed the sentencing range Montanez agreed to as part of his plea 

agreement: 

THE COURT: * * * [T]he State had represented that part of this plea 

agreement would be that there would be range that I would choose 

from when I decided my sentence. It’s an agreed recommended 

sentence that the sentence would be between ten and 30 years. Do you 

understand that, sir? 

THE DEFENDANT: Yes. 
THE COURT: As I explained to you yesterday, I don’t have to follow 

that recommendation if I choose not to. I am telling you that I will. I 

will have that sentence between those year ranges. So, although there’s 

a possible sentence of up to a 32-year sentence, first of all, I will at least 

cap at 32 and, again, I won’t go over that recommendation, I will abide 

by that recommendation. Do you understand that, sir? 

THE DEFENDANT: Yes. 

(Tr. 144-145.) The court further explained the maximum fines that could be 

imposed, but advised Montanez that it was not likely to impose them. (Tr. 145.) 

Thus, the court explained that Montanez was definitely going to prison and that 

probation was not an option. Indeed, Montanez’s acknowledgment that he 

understood the agreed recommended sentence is evidence that he understood the 

mandatory nature of his prison sentence because defense counsel could not have 

agreed to the sentencing range without Montanez’s consent. 

With respect to postrelease control, the court told Montanez that 

“because you will be receiving a prison sentence here * * * you will be subject to 

supervision upon your release by the Ohio Parole Authority on what is referred to as 

postrelease control or PRC.” (Tr. 145.) The court further explained that postrelease 

control is “a fancy term of parole” and that the parole board would “supervise you 

for at least a five-year period.” (Tr. 145.) Finally, the court described the penalties 

for violating postrelease control, and Montanez indicated that he understood all the 

penalties. (Tr. 146.) Therefore, the trial court substantially complied with its 

obligation to explain the maximum penalties Montanez could receive by virtue of his 

guilty pleas, including postrelease control. 
The second assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending is terminated. Case remanded to 

the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE 

ANITA LASTER MAYS, J., and 

MARY EILEEN KILBANE, J., CONCUR