[Cite as State v. Schmick, 2011-Ohio-2263.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95210

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs.

 

 EUGENE SCHMICK 

DEFENDANT-APPELLANT 

JUDGMENT: 

PLEA VACATED, 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-532200 

BEFORE: Jones, J., Celebrezze, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: May 12, 2011 
ATTORNEYS FOR APPELLANT 

 

Ian N. Friedman 

Ronald L. Frey 

Ian N. Friedman & Associates, LLC 

1304 West 6th Street 

Cleveland, Ohio 44113 

 

 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Jesse W. Canonico 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

LARRY A. JONES, J.:

{¶ 1} Defendant-appellant, Eugene Schmick (“Schmick”), appeals his conviction for 

17 counts of pandering sexually-oriented matter involving a minor, 27 counts of illegal use of a 

minor in nudity-oriented material or performance, and one count of possessing criminal tools. 

Finding merit to the appeal, we vacate his guilty pleas and remand the case. 
{¶ 2} In 2009, Schmick was charged with 28 counts of pandering sexually-oriented 

matter involving a minor, 53 counts of illegal use of a minor in nudity-oriented material or 

performance, and one count of possessing criminal tools. On April 6, 2010, Schmick entered 

pleas of guilty to the counts as described above. The trial court sentenced him to a total of 17 

years in prison, designated him a Tier II sex offender, and imposed five years of postrelease 

control. 

{¶ 3} Schmick appeals, raising six assignments of error. After review, we find that 

the first and second assignments of error are dispositive of this appeal. The first and second 

assignments of error are as follows: 

I. The court’s failure to strictly comply with Crim.R. 11(C)(2)(c) violated the 

defendant-appellant’s right to due process of law as guaranteed by Article I, Section 10 

of the Ohio State Constitution and the Fourteenth Amendment to the United States 

Constitution.”

II. The defendant-appellant’s plea was not made knowingly, voluntarily or 

intelligently as the court failed to strictly comply with Crim.R. 11(C)(2)(c).”

{¶ 4} In the first and second assigned errors, Schmick argues his guilty plea was not 

knowingly, intelligently, and voluntarily made and, therefore, his right to due process of law 

was violated when the trial court failed to inform him of his privilege against 

self-incrimination. 

{¶ 5} Crim.R. 11(C) governs the process by which a trial court must inform a 

defendant of certain constitutional and non-constitutional rights before accepting a felony plea 
of guilty or no contest. The underlying purpose of Crim.R. 11(C) is to convey certain 

information to a defendant so that he can make a voluntary and intelligent decision regarding 

whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480, 423 N.E.2d 

115. 

{¶ 6} We employ a de novo standard of review to determine whether the trial court 

accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, Cuyahoga App. No. 

92796, 2009-Ohio-6827, ¶26, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 

1163. We are required to review the totality of the circumstances and determine whether the 

plea hearing was in compliance with Crim.R. 11(C). Id. 

{¶ 7} Crim.R. 11(C)(2) provides, in pertinent part, that the court shall not accept a plea 

of guilty 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. 

“(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.”

{¶ 8} The trial court must strictly comply with those provisions of Crim.R. 11(C) that 

relate to the waiver of constitutional rights. Stewart at 86, 88-89; Ballard at paragraph one of 

the syllabus. That being said, “strict compliance” does not require an exact recitation of the 

precise language of the rule, but instead focuses on whether the trial court explained or referred 

to the right in a manner reasonably intelligible to that defendant. Id. 

{¶ 9} In State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the 

Ohio Supreme Court held that “a trial court must strictly comply with Crim.R. 11(C)(2)(c) and 

orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a 

jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory process to obtain 

witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the 

privilege against compulsory self-incrimination. When a trial court fails to strictly comply 

with this duty, the defendant’s plea is invalid.” Id. at ¶31. If the record confirms that the 

trial court failed to perform this duty, the defendant’s plea is constitutionally infirm, making it 

presumptively invalid. Id. at ¶29; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 

N.E.2d 51, ¶12 . 

{¶ 10} In the present case, the trial court failed to inform Schmick of his constitutional 

right against compulsory self-incrimination or his “right to remain silent.” S ee State v. 

Burston, Cuyahoga App. No. 93645, 2010-Ohio-5120 (advising a defendant that he is waiving 
his right to remain silent is sufficient to explain the privilege against compulsory 

self-incrimination and complies with Crim.R. 11(C)). In fact, the state concedes the first two 

assignments of error as set forth by the appellant. 

{¶ 11} The trial court’s failure to strictly comply with Crim.R. 11(C)(2)(c) renders 

Schmick’s plea invalid. Consequently, we must vacate Schmick’s plea. 

{¶ 12} The first assignment of error is sustained. Based on this, the remaining 

assignments of error are moot. See App.R. 12(A)(1)(c); appendix. 

{¶ 13} Accordingly, the plea is vacated, Schmick’s conviction and sentence are 

reversed, and the case is remanded to the trial court for proceedings in accordance with this 

opinion. 

It is ordered that appellant recover of appellee 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. 

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

Rule 27 of the Rules of Appellate Procedure.

 

LARRY A. JONES, JUDGE 
FRANK D. CELEBREZZE, JR., P.J., and 

SEAN C. GALLAGHER, J., CONCUR 

Appendix

“III. The court’s imposition of consecutive sentences, without making appropriate findings and 

reasons as required by R.C. 2929.14, violated the defendant-appellant’s right to due 

process of law as guaranteed by Article I, Section 10 of the Ohio State Constitution and 

the Fourteenth Amendment to the United States Constitution. 

“IV. The defendant-appellant’s right to due process of law as guaranteed by Article I, Section 

10 of the Ohio State Constitution and the Fourteenth Amendment to the United States 

Constitution was violated when the trial court sentenced defendant upon claims of other 

alleged offenses occurring on other dates. 

“V. The defendant-appellant’s right to due process of law as guaranteed by Article I, Section 

10 of the Ohio State Constitution and the Fourteenth Amendment to the United States 

Constitution was violated when the trial court sentenced defendant to consecutive 

sentences amounting to seventeen (17) years. 
“VI. The defendant-appellant was denied his fundamental right to effective assistance of 

counsel as guaranteed by the Sixth Amendment to the Constitution of the Unites States 

of America and made applicable to the States by and through the Fourteenth 

Amendment to the Constitution of the United States of America.”