[Cite as State v. Smith, 2023-Ohio-3879.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112455

v. :

KENNETH SMITH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 26, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-21-666158-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Rachel E. Cohen, Assistant Prosecuting 

Attorney, for appellee. 

P. Andrew Baker, for appellant. 

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Kenneth Smith (“Smith”), appeals from his 

conviction following a guilty plea. He raises the following assignments of error for 

review:
1. The plea must be vacated because it was not made knowingly, 

intelligently, and voluntarily under the circumstances of the case.

2. The no contact order must be vacated.

After careful review of the record and relevant case law, we affirm 

Smith’s conviction and sentence.

I. Procedural and Factual History

On December 15, 2021, Smith was named in a two-count indictment, 

charging him with rape in violation of R.C. 2907.02(A)(1)(b) (Count 1); and gross 

sexual imposition in violation of R.C. 2907.05(A)(4). The charges stemmed from 

allegations that Smith sexually assaulted his daughter, E.S., when she was under the 

age of 13 years old. 

On January 25, 2023, Smith expressed his desire to accept the terms of 

a negotiated plea agreement with the state. Pursuant to the terms of the plea 

agreement, Smith agreed to plead guilty to an amended count of rape in exchange 

for the dismissal of Count 2 and the state’s agreement to amend Count 1 from a 

charge of rape in violation of R.C. 2907.02(A)(1)(b) to a charge of rape in violation 

of R.C. 2907.02(A)(2). By deleting the reference to the victim’s age, Smith was no 

longer subject to substantial penalties afforded under R.C. 2907.02(B) and 

2971.03(B), and faced a term of incarceration of 3 to 11 years. The state specified, 

however, that a condition of the plea agreement was that Smith “have no contact 

with the victim in this case as well.” (Tr. 23.) Finally, the trial court confirmed that 

if Smith entered a plea of guilty, the court “would sentence [him] to a concurrent 
period of incarceration, not to exceed” his expected release date in Cuyahoga C.P. 

No. CR-17-613973-A. (Tr. 24.) 

Following a Crim.R. 11 colloquy, Smith pleaded guilty to rape in 

violation of R.C. 2907.02(A)(2), a felony of the first degree, as amended in Count 1 

of the indictment. 

On February 1, 2023, the trial court sentenced Smith to a ten-year term 

of imprisonment and designated him as a Tier III sex offender. The sentence was 

ordered to run concurrently with the sentence previously imposed in Case No. CR17-613973-A. The court further ordered Smith to “have no contact with the victim 

or the victim’s family.”

Smith now brings this timely appeal.

A. Crim.R. 11

In the first assignment of error, Smith argues the trial court failed to 

ensure that his guilty plea was knowingly, intelligently, and voluntarily made. Smith 

contends that he was prejudiced by the trial court’s inaccurate explanation 

concerning the state’s ability to amend his indictment to include a sexually violent

predator specification and the state’s ability to introduce evidence of his prior 

convictions.

The underlying purpose of Crim.R. 11 is to convey certain information 

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

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

115 (1981). “The standard for reviewing whether the trial court accepted a plea in 
compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell, 

8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51 

Ohio St.2d 86, 364 N.E.2d 1163 (1977).

In order to ensure that a defendant enters a plea knowingly, 

intelligently, and voluntarily, a trial court must engage in an oral dialogue with the 

defendant in accordance with Crim.R. 11(C). State v. Engle, 74 Ohio St.3d 525, 527, 

660 N.E.2d 450 (1996). Crim.R. 11(C) outlines the trial court’s duties in accepting 

guilty pleas:

(2) 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.

(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.

“When a criminal defendant seeks to have his conviction reversed on 

appeal, the traditional rule is that he must establish that an error occurred in the 
trial court proceedings and that he was prejudiced by that error.” State v. Dangler, 

162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 13. “The test for prejudice is 

‘whether the plea would have otherwise been made.’” Id. at ¶ 16, quoting State v. 

Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). A defendant must establish 

prejudice “‘on the face of the record’” and not solely by virtue of challenging a plea 

on appeal. Id. at ¶ 24, quoting Hayward v. Summa Health Sys., 139 Ohio St.3d 238, 

2014-Ohio-1913, 11 N.E.3d 243, ¶ 26.

The traditional rule, however, is subject to two limited exceptions. Id. 

at ¶ 14-16. Under these two exceptions, no showing of prejudice is required when 

(1) a trial court fails to explain the constitutional rights set forth in Crim.R. 

11(C)(2)(c) that a defendant waives by pleading guilty or no contest, or (2) a trial 

court has completely failed to comply with a portion of Crim.R. 11(C). Id. at ¶ 14-15, 

citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31; 

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. “Aside 

from these two exceptions, the traditional rule continues to apply: a defendant is not 

entitled to have his plea vacated unless he demonstrates he was prejudiced by a 

failure of the trial court to comply with the provisions of Crim.R. 11(C).” Id. at ¶ 16, 

citing Nero at 108.

Thus, when reviewing a trial court’s compliance with Crim.R. 11, the 

inquiry no longer focuses on strict, substantial, or partial compliance with the rule. 

State v. Kauffman, 2021-Ohio-1584, 170 N.E.3d 952, ¶ 12 (8th Dist.). As the 

Supreme Court of Ohio recognized, prior caselaw had “muddled [the] analysis by 
suggesting different tiers of compliance with the rule” and “those formulations have 

served only to unduly complicate what should be a fairly straightforward inquiry.” 

Dangler at ¶ 17. Accordingly, the questions to be answered are as follows:

(1) has the trial court complied with the relevant provision of the rule?

(2) if the court has not complied fully with the rule, is the purported 

failure of a type that excuses a defendant from the burden of 

demonstrating prejudice? and

(3) if a showing of prejudice is required, has the defendant met that 

burden?

Id.

In this case, Smith does not challenge the trial court’s compliance with 

a specific provision of Crim.R. 11. Rather, Smith suggests that “the trial court 

provided [him] with too much information, specifically, inaccurate information.” 

He explains his position as follows:

First, at the plea hearing, defendant-Smith was advised by the 

prosecutor that he would be reindicted on the charges he was facing 

with the addition of a sexually violent predator specification that would 

potentially increase his sentence if convicted, and that the trial court’s 

response indicated that this would happen. (Tr. 27-28.) Later at the 

plea hearing, the trial court advised defendant-Smith that if he was 

reindicted with the sexually violent predator specification the jury 

would hear information about his prior criminal record. 

(Appellate brief, pg. 5-6.) 

Smith maintains that the trial court’s advisements were inaccurate 

because “it is unlikely the state could have indicted him with a sustainable charge 

involving a sexually violent predator specification” because more than 270 speedytrial days had expired since the time of the original indictment. Smith further states 
that it is unlikely that a jury would have heard about his prior convictions because 

the sexually violent predator specification would have been tried to the bench and 

Evid.R. 404(B) prohibits evidence of prior bad acts.

It is well settled that “[i]f a trial judge chooses to offer an expanded 

explanation of the law in a Crim.R. 11 plea colloquy, the information conveyed must 

be accurate.” State v. Clarke, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, 

¶ 16. Thus, “when a defendant’s guilty plea is induced by erroneous representations 

as to the applicable law, * * * the plea has not been entered knowingly and 

intelligently.” State v. Loyd, 6th Dist. Erie Nos. E-10-055 and E-10-056, 2011-Ohio2964, ¶ 18; State v. Davner, 8th Dist. Cuyahoga No. 104745, 2017-Ohio-8862, ¶ 57 

(“when an erroneous understanding of the applicable law induces a defendant’s 

guilty plea, the plea generally is not entered knowingly and intelligently”). “In order 

to establish the necessary inducement to vacate a guilty plea, the defendant must 

make a two-part showing. First, the defendant must show that he or she was 

misinformed as to the applicable law.” Id. at ¶ 19. “Second, the defendant must 

demonstrate that he or she was prejudiced by the misinformation.” Id. at ¶ 20; State 

v. Williams, 8th Dist. Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650, ¶ 15.

“The test for prejudice is ‘whether the plea would have otherwise been 

made.’” Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 16, 

quoting Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474 (1990). Prejudice must be 

established “‘on the face of the record.’” Id. at ¶ 24, quoting Hayward v. Summa 

Health Sys., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26.
In this case, we are unable to conclude that but for the allegedly 

erroneous advisement, Smith would not have accepted the terms of the negotiated 

plea agreement and pleaded guilty to the amended count of rape. As stated, Smith 

was originally charged with rape in violation of R.C. 2907.02(A)(1)(b) based on 

allegations that Smith engaged in sexual conduct with his daughter, who was less 

than 13 years of age at the time of the offense. 

Pursuant to R.C. 2907.02(B), a trial court is authorized to sentence a 

defendant for violating R.C. 2907.02(A)(1)(b) to either life without parole or one of 

three indefinite sentences pursuant to R.C. 2971.03(B). The Ohio Supreme Court 

recently clarified this sentencing scheme, stating that “[w]hen a trial court does not 

sentence a defendant convicted under R.C. 2907.02(A)(1)(b) to life without parole 

under R.C. 2907.02(B), R.C. 2971.03(B) provides three possible indefinite sentences 

that may be imposed instead: 10 years to life, 15 years to life, or 25 years to life.” 

State v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-5167, 167 N.E.3d 947, ¶ 5. The three 

possible indefinite sentences are set out in R.C. 2971.03(B)(1) which provides:

[I]f the court does not impose a sentence of life without parole [under 

R.C. 2907.02(B)], the court shall impose upon the person an indefinite 

prison term consisting of one of the following:

(a) Except as otherwise required in division (B)(1)(b) or (c) of this 

section, a minimum term of ten years and a maximum term of life 

imprisonment.

(b) If the victim was less than ten years of age, a minimum term of 

fifteen years and a maximum of life imprisonment.

(c) If the offender purposely compels the victim to submit by force or 

threat of force, or if the offender previously has been convicted of or 

pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the 
Revised Code or to violating an existing or former law of this state, 

another state, or the United States that is substantially similar to 

division (A)(1)(b) of that section, or if the offender during or 

immediately after the commission of the offense caused serious 

physical harm to the victim, a minimum term of twenty-five years and 

a maximum of life imprisonment.

Under this statutory framework, the default mandatory sentence is 

ten years to life pursuant to R.C. 2971.03(B)(1)(a), unless the provisions of R.C. 

2971.03(B)(1)(b) or (c) are applicable. State v. Mejia, 2020-Ohio-6870, 164 N.E.3d 

1177, ¶ 22 (6th Dist.).

Given the severity of the charge and the length of the potential 

sentence, the record reflects that Smith’s decision to accept the terms of the state’s 

plea offer was premised on the agreement to amend Count 1 to a charge of rape in 

violation of R.C. 2907.02(A)(2), and the court’s promise to impose a prison sentence 

concurrently with Smith’s prior case, and not the alleged threat of a reindictment. 

In fact, defense counsel indicated that Smith’s only reservation in accepting the plea 

deal was whether the trial court would impose a concurrent prison term at the time 

of sentencing. (Tr. 22.) The trial court later addressed these concerns by advising 

the 72-year-old Smith on the record that it “would sentence [him] to a concurrent 

period of incarceration, not to exceed [his] out date” in his prior case. (Tr. 24.) 

Although Smith briefly expressed that he wished to proceed with a trial based on his 

desire to preserve his relationship with his daughter, his ultimate decision to move 

forward with the negotiated plea agreement was not premised on the threat of 

reindictment. Rather, it was premised on the trial court’s statement that Smith 
would no longer be entitled to the promise of a concurrent sentence if Smith went 

forward with trial. (Tr. 33-34.) This statement reflected the court’s discretionary 

powers and was consistent with the mandatory language of R.C. 2907.02(B). 

(“Except as otherwise provided in this division, notwithstanding sections 2929.11 to 

2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section 

shall be sentenced to a prison term or term of life imprisonment pursuant to section 

2971.03 of the Revised Code.”) (Emphasis added.)

Based on the forgoing, we find that irrespective of the court’s 

advisement concerning the state’s ability to amend the indictment, Smith cannot 

demonstrate that he was prejudiced by the alleged misinformation. Smith received 

the benefit of the negotiated agreement with the state and was sentenced to a 

concurrent term of imprisonment in exchange for his guilty plea. Accordingly, we 

conclude that when Smith decided to plead guilty following extensive discussions 

with his counsel and the court, he did so knowingly, intelligently, and voluntarily.

The first assignment of error is overruled.

B. No-Contact Order

In this second assignment of error, Smith argues the trial court 

committed plain error by imposing a no-contact order with the victim or her family 

because he was sentenced to a prison term. Smith contends that the trial court was 

not permitted to issue a no-contact order unless it was imposed as a condition of 

community control.
We review felony sentences under the standard of review set forth in 

R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 

N.E.3d 1231, ¶ 22-23. Under R.C. 2953.08(G)(2), an appellate court may increase, 

reduce, or otherwise modify a sentence or vacate a sentence and remand for 

resentencing if it “clearly and convincingly” finds that (1) the record does not 

support certain of the sentencing court’s findings or (2) the sentence is “otherwise 

contrary to law.” “‘Clear and convincing evidence is that measure or degree of proof 

* * * which will produce in the mind of the trier of facts a firm belief or conviction as 

to the facts sought to be established.’” State v. Franklin, 8th Dist. Cuyahoga No. 

107482, 2019-Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120 

N.E.2d 118 (1954), paragraph three of the syllabus.

In State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 

512, the Ohio Supreme Court addressed the issue presently before this court. In 

Anderson, the trial court imposed both prison terms and a no-contact order. The 

Supreme Court explained that a trial court may only impose a sentence provided for 

by statute, that “Ohio courts have recognized that a no-contact order is a 

community-control sanction,” and the felony-sentencing statutes “reflect that the 

General Assembly intended prison terms and community-control sanctions to be 

alternative sanctions” for a felony offense. Id. at ¶ 12, 17, 28; State v. Conant, 4th 

Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 43. Thus, Anderson held that “as a 

general rule, when a prison term and community control are possible sentences for 

a particular felony offense, absent an express exception, the court must impose 
either a prison term or a community-control sanction or sanctions.” Id. at ¶ 31. 

Therefore, “[a] trial court cannot impose a prison term and a no-contact order for 

the same felony offense.” Id. at ¶ 1.

After careful consideration, we find the circumstances presented in 

this case are distinguishable from those presented in Anderson. Significantly, Smith 

agreed to the no-contact order as part of his plea bargain with the state in this case. 

Because the no-contact order was a product of a negotiated agreement, the trial 

court did not commit reversible error by imposing the bargained term. At most, the 

trial court’s inclusion of a no-contact order constituted invited error. See State v. 

Clark, 2d Dist. Montgomery No. 29295, 2022-Ohio-2801, ¶ 13; State v. Marcum, 

4th Dist. Hocking Nos. 12CA22 and 12CA26, 2013-Ohio-2189, ¶ 11.

“The doctrine of invited error specifies that a [party] may not ‘take 

advantage of an error which he himself invited or induced.’” State v. Garrett, Slip 

Opinion No. 2022-Ohio-4218, ¶ 203, quoting Hal Artz Lincoln-Mercury Inc. v. 

Ford Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the 

syllabus. This doctrine applies to errors arising from a negotiated plea agreement. 

See State v. Patterson, 5th Dist. Muskingum No. CT2008-0054, 2009-Ohio-273, 

¶ 12; State v. Robinson, 8th Dist. Cuyahoga No. 90411, 2008-Ohio-3972, ¶ 7; State 

v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10 (holding 

a defendant cannot take advantage of an error that he invited through the plea 

negotiations). Because Smith entered the plea with the understanding that the no-
contact order was a condition of the plea agreement, he cannot challenge the trial 

court’s imposition of the no-contact order as being contrary to law. 

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 appeal 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, JUDGE

MARY EILEEN KILBANE, P.J., and

MARY J. BOYLE, J., CONCUR