[Cite as State v. Myers, 2020-Ohio-3752.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

State of Ohio/City of Toledo Court of Appeals Nos. L-19-1096 

 L-19-1097 

 Appellee L-19-1098 

v. Trial Court Nos. CRB-16-17250-0102 

 CRB-16-17250-0202 

Benjamin Keith Myers CRB-17-05670-0101 

Appellant DECISION AND JUDGMENT

 Decided: July 17, 2020 

* * * * * 

 David Toska, Chief Prosecutor, and Jimmie Jones, Assistant 

 Prosecutor, for appellee. 

 Robert P. Soto, for appellant. 

* * * * * 

OSOWIK, J. 

{¶ 1} This is a consolidated appeal from a January 8, 2019 judgment of the Toledo 

Municipal Court, finding appellant guilty, pursuant to a voluntary plea agreement, 

reached following negotiations exceeding five hours in duration, of two counts of 
2.

menacing by stalking, in violation of R.C. 2903.211, misdemeanors of the first degree, 

and one count of telecommunications harassment with purpose to abuse, threaten, or 

harass another, in violation of R.C. 2917.21, a misdemeanor of the first degree. 

{¶ 2} In exchange, two additional offenses were dismissed. For the reasons set 

forth below, this court affirms the judgment of the trial court. 

{¶ 3} Appellant, Benjamin Myers, sets forth the following four assignments of 

error: 

1. The trial court abused its discretion and committed reversible 

error when it refused to grant the defendant’s motion to withdraw [his] no 

contest plea. 

2. The trial court abused its discretion and committed reversible 

error in accepting the defendant’s plea. 

3. The trial court imposed a sentence contrary to law. 

4. The trial court violated appellant’s [right to a speedy trial]. 

{¶ 4} The following undisputed facts are relevant to this appeal. On January 8, 

2019, following the entry of the above-described plea agreement, appellant was 

sentenced to consecutive misdemeanor sentences at CCNO of 180 days on each count, 

with credit for the full time served on the first two offenses, and 80 days suspended with 

credit for the balance served on the third offense. 

{¶ 5} For context and clarity, we note that the record reflects appellant to be 

appreciably intelligent. Consistently, appellant undertook exacting efforts throughout 
3.

this case to be in full command of all information, all options, and actively participated in 

the resolution of his cases. 

{¶ 6} As such, current claims by appellant to have lacked adequate cognitive 

functioning to have properly resolved these cases are clearly refuted by the record of 

evidence. 

{¶ 7} On February 12, 2019, despite the above-detailed favorable plea agreement, 

under which appellant was not ordered to serve any additional time, and despite having 

been previously found guilty following a bench trial on all offenses, appellant filed a 

Crim.R. 32.1 post-sentencing motion to withdraw the above-described plea agreement. 

The plea agreement was assiduously crafted in attentive coordination with appellant. 

{¶ 8} The above-referenced bench convictions were later reversed and remanded 

to the trial court in State v. Myers, 6th Dist. Lucas Nos. L-18-1088 and L-18-1089, 2018-

Ohio-5286, on a procedural basis not pertaining to the underlying veracity of the 

convictions. 

{¶ 9} On April 3, 2019, an evidentiary hearing was conducted on appellant’s 

Crim.R. 32.1 post-sentence motion to withdraw. Appellant, whom the record reflects to 

be consistently articulate and deliberative, argued in support of the motion that his plea 

was not knowing, intelligent, or voluntary, but rather was the product of duress and 

coercion, enabled by appellant’s alleged sleep deprivation on the date of the change of 

plea. 
4.

{¶ 10} Specifically, appellant maintained that he had only received approximately 

six hours of uninterrupted sleep the night before the change of plea hearing, yet appellant 

asserts that he is unable to properly function without at least nine hours of uninterrupted 

sleep. 

{¶ 11} The trial court was not persuaded. The trial court denied the motion, 

holding in relevant part, “[Y]ou know exactly what you’re doing and you know exactly 

the game that you were playing.” 

{¶ 12} Nothing in the record lends credence to appellant’s claims of legally 

inadequate cognitive function due to alleged sleep deprivation, or on any other basis. 

This appeal ensued. 

{¶ 13} In the first assignment of error, appellant asserts that the trial court erred in 

denying appellant’s Crim.R. 32.1 post-sentence motion to withdraw the negotiated guilty 

plea reached following the procedural remand of the case subsequent to appellant’s trial 

convictions on all counts. We do not concur. 

{¶ 14} Crim.R. 32.1 establishes a considerable threshold of proof in order to 

warrant the granting of motions to vacate a plea that are filed after sentencing in the case 

has occurred, such as the scenario presented in the instant case. 

{¶ 15} Crim.R. 32.1 states, “A motion to withdraw a plea of guilty or no contest 

may be made only before sentence is imposed; but to correct manifest injustice the court 

after sentence may * * * permit the defendant to withdraw his or her plea.” (Emphasis 

added). 
5.

{¶ 16} In support of the first assignment, appellant opines that he, “was presented 

with three (3) unappealing options on how to proceed.” (Emphasis added). 

{¶ 17} Appellant proceeds to unilaterally claim that he had been sleep deprived the 

night before the change of plea negotiations, having allegedly only received 

approximately six hours of uninterrupted sleep, while claiming to require a minimum of 

nine hours of uninterrupted sleep to properly, legally function. We are not persuaded. 

{¶ 18} The transcripts of the change of plea proceedings undercut appellant’s 

claims of deficient cognitive functioning in the course of the entry of the negotiated plea. 

{¶ 19} The transcript of the January 18, 2019 change of plea hearing reflects 

appellant to be fully engaged, inquisitive, focused, and actively participating in detailed 

negotiations with his counsel and the trial court. It is devoid of any evidence reflecting 

appellant to be cognitively compromised. 

{¶ 20} At one point in the midst of the proceedings, the trial court states to 

appellant, “I’ve given you over three hours to talk with your attorney about everything 

that’s going on today in private back in the jury room, because I wanted you to not feel 

rushed.” 

{¶ 21} Later, while contemplating his options, appellant states to the trial court, 

“Your honor, if I do have to prepare in custody, I’m going to need access to the law 

library * * * I just ask that you use your authority to ensure that I have unfettered access 

to the extent possible to the materials.” Such exchanges do not comport with appellant’s 

current cognitive claims. 
6.

{¶ 22} Subsequently, when it appeared that an agreement was at hand after 

approximately five hours of deliberations and discussions, the trial court inquired of 

appellant, “[B]ased on conversation with both the court, with the prosecutor’s office, with 

Mr. Soto who is standing in as your counsel today, do you feel that you have had enough 

time to understand what’s going on today?” Appellant responded, “I have had enough 

time.” 

{¶ 23} The trial court further inquired of appellant, “So you feel clear-headed 

when making this decision this afternoon?” Appellant replied, “Yes.” 

{¶ 24} The record encompasses ample evidence that appellant was not cognitively 

compromised, and no manifest injustice occurred, by the entry of the plea. We find 

appellant’s first assignment of error not well-taken. 

{¶ 25} In appellant’s second assignment of error, appellant similarly maintains 

that the underlying plea was the product of coercion, duress, and was taken in violation of 

the Crim.R. 11(C) mandate that a plea be knowing, intelligent, and voluntary. We do not 

concur. 

{¶ 26} The transcripts of proceedings in this case run directly counter to 

appellant’s unsupported assertions of having lacked the ability to knowingly, 

intelligently, and voluntarily enter the negotiated plea underlying this appeal. 

{¶ 27} During an exchange with the trial court at the change of plea hearing, the 

trial court inquired what appellant had learned or gained from courses taken at CCNO. 

Appellant articulately explained to the trial court that, “What I’ve learned was 
7.

autodidactic. What I mean by that is the classes in jail, a lot of them are demeaning at 

best. Some of them are counterproductive. But I got from them whatever I could.” 

{¶ 28} Appellant’s intellectual acumen, as acknowledged by appellant himself, 

and as reflected in the transcripts, refutes appellant’s current, unsupported claims of 

lacking clear-headedness or making decisions based upon duress or coercion in the 

resolution of this matter. 

{¶ 29} The record is devoid of evidence that the underlying plea was not knowing, 

intelligent, and voluntary, or in any way in breach of Crim.R. 11(C). We find appellant’s 

second assignment of error not well-taken. 

{¶ 30} In the third assignment of error, appellant asserts that the trial court 

unlawfully sentenced appellant by imposing consecutive misdemeanor sentences. We do 

not concur. 

{¶ 31} While appellant concedes that R.C. 2929.41(B)(1) authorizes consecutive 

misdemeanor sentencing, appellant suggests that such consecutive misdemeanor 

sentencing is limited to only those offenses enumerated by section number in the statute. 

The plain meaning of the statutory language says otherwise. 

{¶ 32} R.C. 2929.41(B)(1) establishes, “A jail term or sentence of imprisonment 

for a misdemeanor shall be served consecutively to any other prison term, jail term, or 

sentence of imprisonment when the trial court specifies that it is to be served 

consecutively or when it is imposed for a misdemeanor violation of section 2907.322, 

2921.34, or 2923.131.” 
8.

{¶ 33} Accordingly, the express statutory language authorizes consecutive 

misdemeanor sentencing through trial court specification of same at sentencing, in 

addition to making it automatic in cases involving the three above-quoted offenses. See, 

e.g., State v. Burley, 7th Dist. Mahoning No. 16 MA 0076, 2017-Ohio-378, ¶ 10 (“A jail 

term for a misdemeanor shall be served consecutively with any other jail term when the 

trial court specifies it to be served consecutively. R.C. 2929.41(B)(1) (with the aggregate 

term not to exceed 18 months)”). See also State v. Dumas, 7th Dist. Mahoning No. 

10 MA 61, 2011-Ohio-3102, ¶ 11 (a trial court may impose consecutive sentences in a 

misdemeanor case). 

{¶ 34} Lastly, we note that appellant’s reliance on State v. Polus, 145 Ohio St.3d 

266, 2016-Ohio-655, 48 N.E.3d 553, is misplaced. Polus entailed consecutive felony and 

misdemeanor sentencing, versus the consecutive misdemeanor sentencing at issue in this 

case, and is, therefore, not decisive to our consideration in this matter. 

{¶ 35} Appellant has failed to demonstrate that the trial court’s consecutive 

sentencing on the multiple misdemeanor convictions underlying this appeal was 

unlawful. Wherefore, we find appellant’s third assignment of error not well-taken. 

{¶ 36} In appellant’s fourth assignment of error, appellant maintains that his right 

to a speedy trial was breached in this case. We do not concur.

{¶ 37} Pursuant to R.C. 2945.71(B)(2), a defendant must be tried, “Within ninety 

days after the person’s arrest or service of summons, if the offense is a misdemeanor of 

the first or second degree.” 
9.

{¶ 38} Appellant’s claims in this assignment stem from appellant’s original 2018 

bench trial convictions on these cases, subsequently remanded by this court on a 

procedural basis. Upon remand, appellant entered a voluntary plea. 

{¶ 39} It is well-established that by entering a plea of guilty, a defendant thereby 

waives the right to a speedy trial challenge upon appeal. State v. Glanton, 6th Dist. 

Wood No. WD-18-091, 2020-Ohio-834, ¶ 21-26. 

{¶ 40} We find appellant’s fourth assignment of error not well-taken. 

{¶ 41} On consideration whereof, the judgment of the Toledo Municipal Court is 

hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 

24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.