from Hardin County Common Pleas Court Trial Court No. CRI
Michael J. Short for Appellant.
M. Miller for Appellee.
Defendant-appellant, Thomas J. Donegan ("Donegan"),
appeals the April 12, 2017 sentencing entry of the Hardin
County Court of Common Pleas. For the reasons that follow, we
affirm the judgment and sentence of the trial court.
On October 28, 2016, the Hardin County grand jury indicted
Donegan on Count One: Rape in violation of R.C.
2907.02(A)(1)(b), a felony of the first degree; and Count
Two: Gross Sexual Imposition in violation of
2907.05(A)(4)(C)(2), a felony of the third degree. (Doc. 1).
On November 8, 2016, Donegan entered a plea of not guilty to
both charges and his case was set for a jury trial for
January 17, 2017. (Doc. 6).
On November 16, 2016, Donegan filed a motion for a competency
evaluation. The evaluation was ultimately conducted on
January 11, 2017 and the competency hearing occurred on
February 9, 2017, wherein the trial court found Donegan
competent to stand trial. A new trial date was then set for
March 30, 2017. (Doc. 26).
On March 9, 2017, the trial court conducted its final
pretrial hearing on the charges at which time Donegan
withdrew his plea of not guilty to Count Two and entered a
plea of guilty. Pursuant to negotiations, the State dismissed
Count One (Rape) of the indictment in exchange for
Donegan's guilty plea. (Change of Plea Tr. Pg. 2). At the
plea hearing Donegan signed a "Waiver of rights and plea
of guilty" form that reflected his change of plea. (Doc.
30). In accepting Donegan's plea, the trial court found
him guilty of Gross Sexual Imposition, and ordered a
presentence investigation ("PSI") report. (Doc.
Donegan was sentenced to a prison term of thirty months which
was journalized by the trial court's judgment entry filed
April 12, 2017. (Doc. 35).
On April 19, 2017 Donegan timely filed a notice of appeal
raising the following assignment of error.
DEFENDANT'S PLEA WAS NOT GIVEN KNOWINGLY, INTELLIGENTLY,
In his sole assignment of error, Donegan asserts that the
trial court erred in accepting his guilty plea because it was
not made knowingly, intelligently, and voluntarily.
" 'When a defendant enters a plea in a criminal
case, the plea must be made knowingly, intelligently, and
voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the
United States Constitution and the Ohio Constitution.'
" State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, ¶7, quoting State v. Engle, 74
Ohio St.3d 525, 527 (1996).
Crim.R. 11(C) states:
(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
(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
(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.
"[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 the defendant's
constitutional rights." State v. Ackley, 12th
Dist. Madison No. CA2013-04-010, 2014-Ohio-876, citing
Veney, at ¶31. "When a trial court fails
to strictly comply with this duty, the defendant's plea
is invalid." Id. However, a trial court is
required to only substantially comply with the
non-constitutional notifications required by Crim.R.
11(C)(2)(a) and (b). Id. at ¶14. An appellate
court reviews that substantial-compliance standard based upon
the totality of the circumstances surrounding the
defendant's plea and determines whether he subjectively
understood the implications of his plea and the rights he
waived. Id., citing State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶20.
"Furthermore, a defendant who challenges his guilty plea
on the basis that it was not knowingly, intelligently, and
voluntarily made must show a prejudicial effect. * * * The
test is whether the plea would have otherwise been
made." Id., quoting State v. Nero, 56
Ohio St.3d 106, 108 (1990).
In the case sub judice, we find that Donegan was
properly advised of his constitutional rights under Crim.R.
11 by the trial court. The record establishes that the Court
personally addressed Donegan regarding his plea of guilty in
accordance with Crim.R. 11(C)(2). Specifically, with respect
to Crim.R. 11(C)(2)(b), the record reflects as follows:
Court: Mr. Donegan, is that your understanding - that
you're prepared to enter a plea to the one count, is that
what you're gonna do today?
Defendant: Yes sir.