[Cite as State v. Seymour, 2019-Ohio-1093.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

BELMONT COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

CHARLES RICHARD SEYMOUR, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 BE 0017 

 

Criminal Appeal from the 

Court of Common Pleas of Belmont County, Ohio 

Case No. 17 CR 345 

BEFORE: 

Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges. 

JUDGMENT: 

Reversed and Remanded. Plea Vacated. 

Atty. Dan Fry, Belmont County Prosecuting Attorney and Atty. Scott A. Lloyd, Assistant 

Prosecuting Attorney, 147-A West Main Street, St. Clairsville, Ohio 43950, for PlaintiffAppellee, No Brief Filed. 

Atty. Adam L. Myser, Myser & Davies, 320 Howard Street, Bridgeport, Ohio 43912, for 

Defendant-Appellant. 

 

Dated: March 21, 2019 

 

WAITE, P.J. 
 – 2 – 

Case No. 18 BE 0017

{¶1} Appellant Charles Richard Seymour appeals a February 27, 2018 Belmont 

County Court of Common Pleas judgment entry convicting him of one count of driving 

while under the influence of alcohol (“OVI”). Appellant argues that the trial court failed to 

adequately advise him that he would be waiving his right to a jury trial by virtue of his 

guilty plea. Appellant also argues that his sentence is contrary to law. Pursuant to State 

v. Thomas, 2018-Ohio-2815, -- N.E.3d – (7th Dist.), Appellant’s argument regarding his 

guilty plea has merit, Appellant’s guilty plea is vacated, and the judgment of the trial court 

is reversed and remanded. As a result, Appellant’s sentencing argument is moot. 

Factual and Procedural History 

{¶2} On November 29, 2017, Ohio State Highway Patrol Trooper M.J. Corey 

initiated a traffic stop of a vehicle operated by Appellant. At some point during the 

encounter, Trooper Corey arrested Appellant, who was subsequently charged with one 

count of OVI, a felony of the third degree in violation of R.C. 4511.19(A)(1)(G)(1)(e). The 

charge was enhanced due to prior OVI convictions. 

{¶3} On February 12, 2018, Appellant pleaded guilty to the sole offense as 

charged. On February 28, 2018, the trial court sentenced Appellant to thirty-six months 

of incarceration with credit for ninety days. The trial court also imposed a $1,350 fine and 

a lifetime driver’s license suspension. Appellant timely appeals his conviction and 

sentence. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID 

NOT SUBSTANTIALLY COMPLY WITH CRIM.R. 11(C)(2)(c) BY FAILING 
 – 3 – 

Case No. 18 BE 0017

TO INFORM APPELLANT HE WAS WAIVING HIS RIGHT TO A JURY 

TRIAL. 

{¶4} Appellant argues that, while the trial court advised him of his right to a 

“speedy and public trial,” the court did not reference his right to a jury trial during his 

Crim.R. 11 plea colloquy. As such, he contends his plea was not entered voluntarily, 

intelligently, and knowingly. The state did not file a response brief. 

{¶5} Before a trial court may accept a defendant’s guilty plea, the court must 

inform the defendant of his constitutional and nonconstitutional rights. State v. 

Rothbotham, 173 Ohio App.3d 642, 2007-Ohio-6227, 879 N.E.2d 856, ¶ 7 (7th Dist.), 

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

syllabus. A defendant’s constitutional rights include a privilege against compulsory selfincrimination, right to a jury trial, right to confront his accusers, and right to compulsory 

process and right to proof beyond a reasonable doubt. State v. Veney, 120 Ohio St.3d 

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19-21. A trial court must strictly comply with the 

advisement of a defendant’s constitutional rights, however, the court need not recite the 

exact language of Crim.R. 11. State v. Wheeler, 7th Dist. No. 08 MA 53, 2009-Ohio2647, ¶ 23, citing Ballard, supra, at paragraph two of the syllabus. 

{¶6} The trial court must also notify the defendant of his nonconstitutional rights. 

The nonconstitutional rights are reviewed for substantial compliance. Rothbotham, supra, 

at ¶ 18. The nonconstitutional rights include: (1) the nature of the charges; (2) the 

maximum penalty involved; (3) whether the defendant is eligible for probation; and (4) 

that the court may immediately proceed to sentencing after accepting the plea. Id. 
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Case No. 18 BE 0017

{¶7} Here, the issue is limited to whether the trial court’s advisement that 

Appellant would be giving up his “right to a speedy and public” trial by pleading guilty 

sufficiently notified him of his right to a jury trial. We have recently held that a trial court’s 

advisement that a defendant is entitled to a “speedy and public trial” is insufficient to notify 

the defendant of his right to a jury trial where there is no reference to a jury trial during 

the plea hearing. Thomas, supra, at ¶ 16; see also State v. Rudai, 7th Dist. No. 18 BE 

0002, 2018-Ohio-4464. Here, the trial court advised Appellant that he would be giving up 

his “right to a speedy and public trial,” with no reference to his right to a jury trial. Thus, 

in accordance with Thomas, Appellant’s first assignment of error has merit and is 

sustained. Appellant’s guilty plea is vacated. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE 

MAXIMUM SENTENCE OF 36 MONTHS BECAUSE THE RECORD DOES 

NOT SUPPORT SUCH A SENTENCE PURSUANT TO O.R.C. §2929.11 

AND §2929.12. THUS, THE SENTENCE IS CONTRARY TO LAW AND 

SHOULD BE VACATED OR MODIFIED PURSUANT TO O.R.C. 

§2953.08(G)(2)(a). 

{¶8} Appellant argues that the trial court failed to consider his alcohol addiction 

as a mitigating factor when determining his sentence. Appellant argues that community 

control, particularly intensive treatment for his alcoholism, would be more appropriate 

than a lengthy incarceration sentence. Again, the state did not file a response brief. 

{¶9} Because Appellant’s first assignment of error has merit and his plea has 

been vacated, any argument regarding sentencing is moot. 
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Case No. 18 BE 0017

Conclusion 

{¶10} Appellant contends that the trial court failed to adequately advise him that 

he would be waiving his right to a jury trial by virtue of his guilty plea. Appellant also 

argues that his sentence is contrary to law. Pursuant to Thomas, supra, Appellant’s 

argument regarding his guilty plea has merit and the judgment of the trial court is 

reversed. Appellant’s plea is hereby vacated. This matter is remanded to the trial court 

for further proceedings according to law and consistent with this Court’s Opinion. As 

such, Appellant’s sentencing argument is moot. 

Donofrio, J., concurs. 

Robb, J., concurs. 
[Cite as State v. Seymour, 2019-Ohio-1093.]

 

 

For the reasons stated in the Opinion rendered herein, Appellant’s first 

assignment of error is sustained and his second assignment is moot. It is the final 

judgment and order of this Court that the judgment of the Court of Common Pleas of 

Belmont County, Ohio, is reversed and Appellant’s plea is hereby vacated. We hereby 

remand this matter to the trial court for further proceedings according to law and 

consistent with this Court’s Opinion. Costs to be taxed against the Appellee. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.