[Cite as State v. Fox , 2024

- Ohio

- 349.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. John W. Wise, P.J.

Plaintiff

- Appellee : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

- vs

- :

: Case No. 2023AP060035

:

JEFFERY FOX, JR. :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County

Court of Common Pleas, Case No.

2022CR090340

JUDGMENT: REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY:

APPEARANCES: January 31, 2024

For Plaintiff

- Appellee: For Defendant

- Appellant:

RYAN STYER DONOVAN R. HILL, ESQ.

TUSCARAWAS CO. PROSECUTOR 122 Market Ave. N.

125 East High Ave. Dewalt Building, Suite 101

New Philadelphia, OH 44663 Canton, OH 44702Tuscarawas County, Case No. 2023AP060035 2

Delaney, J.

{¶1} Appellant Jeffery Fox, Jr. appeals from the May 16, 2023 Judgment Entry

on Change of Plea and Sentencing of the Tuscarawas County Court of Common Pleas.

Appellee is the state of Ohio and did not appear in the instant appeal.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from appellee’s statement at the change

of

- plea and sentencing hearing on May 15, 2023.

{¶3} Law enforcement was dispatched for a complaint of a man and woman

passed out in a running vehicle behind a residence. Upon investigation, appellant and a

companion were found with syringes, spoons, cut straws, and a mixture of

methamphetamine and fentanyl.

{¶4} Appellant was charged by indictment with one count of possession of a

fentanyl

- related compound pursuant to R.C. 2925.11(A),a felony of the fifth degree [Count

I] and one count of possession of drug paraphernalia pursuant to R.C. 2925.14(C)(1), a

misdemeanor of the fourth degree [Count II]. Appellant entered pleas of not guilty and

was released on his own recognizance.

{¶5} At a pretrial on November 7, 2022, defense trial counsel noted appellant

failed to maintain contact with her office, and the trial court observed mail sent to

appellant’s last known address was returned. Appellant was ordered to appear for a

status hearing on December 5, 2022, with notice that a capias warrant would be issued if

he failed to appear.

{¶6} Appellant appeared for the status hearing on December 5, 2022. He was

admonished, told to stay in touch with defense trial counsel, and ordered to keep the trialTuscarawas County, Case No. 2023AP060035 3

court and counsel informed of his address. A final pretrial/change of plea hearing was

scheduled for February 21, 2023, and a jury trial was scheduled for February 22, 2023.

{¶7} On January 13, 2023, defense trial counsel filed a motion to withdraw,

noting appellant missed three scheduled telephone appointments and had a pending

arrest warrant due to failure to report to jail. The trial court scheduled the motion for a

status and review hearing on January 30, 2023.

{¶8} On January 30, 2023, appellant failed to appear for the status hearing, and

the trial court granted the motion to withdraw “subject to reappointment” upon appellant’s

apprehension, issued a capias for appellant’s arrest, and continued the remaining

scheduled court dates.

{¶9} Appellant was apprehended and the trial court reviewed the matter on

March 13, 2023, reappointing defense trial counsel and scheduling the matter for another

final pretrial and jury trial.

{¶10} On April 20, 2023, appellant filed a pro se “Motion to Re

- weigh and Re

- test

Evidence.”

{¶11} On May 4, 2023, appellant filed a pro se motion for appointment of new

defense trial counsel.

{¶12} On May 11, 2023, the trial court filed a Scheduling Order setting the matter

for a change

- of

- plea and sentencing hearing on May 15, 2023.

{¶13} On May 12, 2023, appellant filed a pro se motion for discovery.Tuscarawas County, Case No. 2023AP060035 4

{¶14} On May 15, 2023, appellant filed a pro se motion to dismiss for lack of a

speedy trial. 1

{¶15} Also on May 15, 2023, appellant came before the trial court for a change of

plea and sentencing hearing; appellant executed an acknowledgment of guilty plea. The

trial court noted the pending pro se motions were overruled and appellant entered a plea

of guilty as charged. Defense trial counsel stated, and appellant agreed, that although

appellee offered to recommend a term of community control in exchange for the guilty

pleas, appellant rejected the offer because he was unwilling to serve a period or

community control and “would leave a CBCF at the first opportunity.”

{¶16} Appellant therefore requested to serve his sentence in prison. The trial

court sentenced appellant to, e.g., a prison term of nine months upon Count I and court

costs upon Count II.

{¶17} Appellant now appeals from the trial court’s May 16, 2023 Judgment Entry

on Change of Plea and Sentencing.

{¶18} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶19} “I. APPELLANT’S PLEA WAS NOT ENTERED INTO KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY BECAUSE THE TRIAL COURT FAILED TO

COMPLETELY COMPLY WITH OHIO CRIM.R. 11.”

{¶20} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT

INQUIRING INTO APPELLANT’S COMPLAINT REGARDING COUNSEL.”

1 In the Order of January 31, 2023, issuing a capias for appellant’s arrest, the trial court

noted the speedy

- trial time was enlarged due to appellant’s conduct.Tuscarawas County, Case No. 2023AP060035 5

ANALYSIS

I.

{¶21} In his first assignment of error, appellant argues his plea of no contest was

not knowingly, voluntarily, and intelligently entered because the trial court did not inform

him that a guilty plea is a complete admission of guilt pursuant to Crim.R. 11(B)(1). For

the following reasons, we agree and therefore sustain appellant's first assignment of error.

{¶22} Pursuant to Crim. R. 11, a trial court must follow distinct procedures in

accepting a plea, with the procedures varying based upon whether the offense involved

is a petty

- offense misdemeanor, a serious

- offense misdemeanor, or a felony. State v.

Jones

, 116 Ohio St.3d 211, 877 N.E.2d 677, 2007

- Ohio

- 6093, ¶ 11. Appellant pled guilty

to a felony of the fifth degree and a misdemeanor of the fourth degree. Accordingly, the

trial court was required to follow the procedure set forth in Crim. R. 11(C)(2), which

provides:

In felony cases the court may refuse to accept a plea of guilty

or a plea of no contest, and shall not accept a plea of guilty or no

contest 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.Tuscarawas County, Case No. 2023AP060035 6

(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. (Emphasis added).

(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.

{¶23} Advising the defendant that a guilty plea is a complete admission of guilt,

along with the other information required by Crim.R. 11, ensures that defendants enter

pleas with knowledge of rights that they would forgo and creates a record by which

appellate courts can determine whether pleas are entered voluntarily. State v. Griggs

,

103 Ohio St.3d 85, 2004

- Ohio

- 4415, 814 N.E.2d 51, ¶ 11, citing State v. Nero

, 56 Ohio

St.3d 106, 107, 564 N.E.2d 474 (1990) and State v. Ballard

, 66 Ohio St.2d 473, 479

– 480,

423 N.E.2d 115 (1981). “Pursuant to Crim. R. 11(C), felony defendants are entitled to be

informed of various constitutional and non

- constitutional rights, prior to entering a plea.”

Id

., ¶ 6. Among the non

- constitutional rights, Crim. R. 11(C)(2)(b) requires the trial court

to inform the defendant of the effect of his guilty or no

- contest plea and to determine

whether he understands that effect. Jones

, supra, 2007

- Ohio

- 6093 at ¶ 12; Griggs

, supra,

at ¶ 10

– 12.Tuscarawas County, Case No. 2023AP060035 7

{¶24} The issue presented by the instant case is whether the trial court adequately

informed appellant of the effect of his guilty plea. The Ohio Supreme Court has held that

to satisfy the requirement of informing a defendant of the effect of a plea, a trial court

must inform the defendant of the appropriate language under Crim.R. 11(B). Jones

,

supra, 116 Ohio St.3d 211, 2007

- Ohio

- 6093, 877 N.E.2d 677, ¶ 25. The relevant

language pursuant to Ohio Crim. R. 11(B)(1) is, “The plea of guilty is a complete

admission of the defendant's guilt.” Further, “[w]hether orally or in writing, a trial court

must inform the defendant of the appropriate language under Crim.R. 11(B) before

accepting a plea.” Jones

, supra, ¶ 51.

{¶25} In the instant case, the language of Crim.R. 11(B)(1) is missing from the

record, is not contained in the colloquy, and was not provided in written form to appellant

via the Acknowledgment of Guilty Plea form executed by appellant and defense trial

counsel. Id. Before accepting appellant's guilty plea, the trial court stated the following

regarding the effect of the plea:

* * * *. So the acknowledgment form states that you would be

entering a plea of guilty to the charge of possession of a fentanyl

related compound, a felony of the fifth degree, and illegal use or

possession of drug paraphernalia, a misdemeanor of the fourth

degree. A plea of guilty to those charges would result in you being

found guilty of those offenses without further proof being offered to

the court of those offenses and then you would be subject to the

possible penalties from the range of sentence options for the Court.

Do you understand that would be the effect of your guilty plea?Tuscarawas County, Case No. 2023AP060035 8

T. Change of Plea and Sentencing, 3.

{¶26} We agree with appellant that the trial court did not inform him that his guilty

pleas were a complete admission of his guilt. Therefore, we must conclude that the

requirements of Crim. R. 11(C)(2)(b) were not met. State v. Smith

, 5th Dist. Muskingum

No. CT2019

- 0005, 2019

- Ohio

- 4645, ¶ 18, citing State v. Gibson

, 5th Dist. Muskingum

No. CT2017

- 0094, 2018

- Ohio

- 4013, ¶ 11.

{¶27} In Gibson

, supra, we held the following regarding noncompliance with

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

The right to be informed a no contest plea is a not an admission

of guilt, but is an admission of the truth of the facts alleged in the

indictment is non

- constitutional; therefore, the trial court's failure to

inform a defendant of the effect of a no contest plea is subject to

review under a standard of substantial compliance. See, Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474. While the failure to adequately

inform a defendant of his constitutional rights would invalidate a no

contest plea under a presumption it was entered involuntarily and

unknowingly, the failure to substantially comply with non

constitutional rights will not invalidate a plea unless the defendant

thereby suffered prejudice. See, Id. The test for prejudice is “whether

the plea would have otherwise been made.” Id.

We find not only did the trial court fail to substantially comply

with Crim. R. 11(C)(2)(b), but the trial court also failed to comply at all

with the rule. The trial court did not inform Appellant of the effect ofTuscarawas County, Case No. 2023AP060035 9

his no contest plea. We find a trial court is required to substantially

comply with all three subsections of Crim. R. 11(C)(2). Because the

trial court's failure to do so invalidates Appellant's plea, we need not

reach the issue of whether Appellant suffered prejudice.

State v. Gibson

, 5th Dist. Muskingum No. CT2017

- 0094, 2018

-

Ohio

- 4013, ¶ 12

- 13.

{¶28} In the instant case, appellant’s first assignment of error is sustained.

Appellant's convictions and sentence are vacated and the matter remanded for further

proceedings consistent with the law and this Opinion. Gibson

, supra, 2018

- Ohio

- 4013, ¶

15; Smith

, supra, 2019

- Ohio

- 4645, ¶ 21.

II.

{¶29} In his second assignment of error, appellant argues the trial court should

have inquired further into his dissatisfaction with defense trial counsel. We disagree.

{¶30} Appellant argues the trial court failed to adequately inquire into his concerns

about appointed defense trial counsel as required under State v. Deal , 17 Ohio St.2d 17,

244 N.E.2d 742 (1969). “Where, during the course of his trial for a serious crime, an

indigent accused questions the effectiveness and adequacy of assigned counsel, * * * it

is the duty of the trial judge to inquire into the complaint and make such inquiry a part of

the record.” Deal

, supra

, at syllabus. The inquiry may be brief and minimal, and the duty

to inquire is only triggered by allegations that are sufficiently specific. State v. Ketterer

,

111 Ohio St.3d 70, 2006

- Ohio

- 5283, ¶ 139, internal citations omitted. “The trial judge may

then require the trial to proceed with assigned counsel participating if the complaint is not

substantiated or is unreasonable.” Deal

, supra

, at syllabus.Tuscarawas County, Case No. 2023AP060035 10

{¶31} Appellant does not point to complaints raised about defense trial counsel;

his brief cites “(Tr. at pg. 2

- 3)” but assuming this refers to the record of the change

- of

plea and sentencing hearing, there is no reference to complaints about counsel’s

representation. Instead, appellant stated he was satisfied with his representation. T. 6.

Appellant also executed the Acknowledgment of Guilty Plea form stating he “h[as]

confidence in [his attorney] and accepts [her] representations of [him] in this matter.” 5.

{¶32} Upon our review of the record, appellant’s request for new counsel appears

in a pro se motion in which he stated he wanted counsel to provide additional discovery

and a chain of custody form but counsel responded she already provided him with

everything he was entitled to. We find appellant's pro se motion, without more, did not

establish good cause for the appointment of new counsel. State v. Patterson

, 5th Dist.

Stark No. 2023CA00027, 2023

- Ohio

- 3579, ¶ 34. We further find appellant failed to allege

facts which, if true, would require the appointment of new counsel. Id., citing State v.

Ervin

, 5th Dist. Stark No. 2000CA00297, 2001 WL 1512190. The duty prescribed by Deal

only arises if the allegations are sufficiently specific; vague or general objections do not

trigger the duty to investigate further. State v. Anderson

, 5th Dist. Richland No.

20CA0029, 2020

- Ohio

- 4937, ¶ 24, citing State v. Pace

, 5th Dist. Morgan No. 14 AP 0007,

2015

- Ohio

- 2884.

{¶33} Appellant’s second assignment of error is overruled.Tuscarawas County, Case No. 2023AP060035 11

CONCLUSION

{¶34} Appellant’s first assignment of error is sustained, his second assignment of

error is overruled, and this matter is remanded to the trial court for further proceedings

consistent with this Opinion.

By: Delaney, J.,

Wise, P.J. and

Baldwin, J., concur.