Court of Appeals of Ohio, Third District, Van Wert
from Van Wert County Common Pleas Court Trial Court No.
J. Lucente, Jr. for Appellant.
J. Rauch for Appellee.
Defendant-appellant, Dan J. Swoveland
("Swoveland"), appeals the December 4, 2017
judgment entry of sentence of the Van Wert County Court of
Common Pleas. We affirm.
On May 4, 2017, the Van Wert County Grand Jury indicted
Swoveland on five counts: Counts One and Two of illegal
manufacture of drugs in violation of R.C. 2925.04(A),
(C)(3)(b), first-degree felonies; Count Three of illegal
assembly or possession of chemicals for the manufacture of
drugs in violation of R.C. 2925.041(A), (C), a second-degree
felony; Count Four of aggravated funding of drug trafficking
in violation of R.C. 2925.05(A)(1), a first-degree felony;
and Count Five of engaging in a pattern of corrupt activity
in violation of R.C. 2923.32(A)(1), (B)(1). (Doc. No. 3).
On May 10, 2017, Swoveland appeared for arraignment and pled
not guilty to the counts of the indictment. (Doc. No. 11).
On October 11, 2017, Swoveland withdrew his pleas of not
guilty and entered guilty pleas, under a written plea
agreement, to Counts One and Three. (Doc. No. 26). In
exchange for his change of pleas, the State agreed to dismiss
Counts Two, Four, and Five of the indictment and recommend
that Swoveland serve a seven-year prison sentence.
(Id.). The trial court accepted Swoveland's
guilty pleas, found him guilty on Counts One and Three, and
ordered a presentence investigation. (Doc. No. 27).
On December 4, 2017, the trial court sentenced Swoveland to 7
years in prison on Count One and 5 years in prison on Count
Three and ordered that Swoveland serve the terms
consecutively for an aggregate term of 12 years. (Doc. No.
On December 22, 2017, Swoveland filed a notice of appeal.
(Doc. No. 45). He raises three assignments of error for our
of Error No. I
guilty pleas were involuntary and should be vacated due to
appellant's in-court statements.
In his first assignment of error, Swoveland argues that his
guilty pleas were not made knowingly, intelligently, and
voluntarily. In particular, Swoveland contends that his
guilty pleas were not knowing, intelligent, or voluntary
because his in-court statements do not reflect that he was
knowingly, intelligently, and voluntarily admitting guilt to
Counts One and Three of the indictment.
"All guilty pleas must be made knowingly, voluntarily,
and intelligently." State v. Moll, 3d Dist.
Defiance Nos. 4-14-17 and 4-14-18, 2015-Ohio-926, ¶ 9,
citing State v. Engle, 74 Ohio St.3d 525, 527
(1996). "'"Failure on any of those points
renders enforcement of the plea unconstitutional under both
the United States Constitution and the Ohio
Constitution."'" State v. Montgomery,
3d Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 10,
quoting State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, ¶ 7, quoting Engle at 527.
Crim.R. 11(C)(2), which governs guilty pleas for felony-level
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
(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." Montgomery at ¶
11, citing Veney at ¶ 31. "'When a
trial court fails to strictly comply with this duty, the
defendant's plea is invalid.'" Id.,
quoting Veney at ¶ 31. "A trial court,
however, is required to only substantially comply with the
non-constitutional notifications in Crim.R. 11(C)(2)(a) and
(b)." Id., citing Veney at ¶
"An appellate court reviews the 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. at ¶ 12, 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 support of his argument that his guilty plea was not
knowing, intelligent, or voluntary, Swoveland points to
exchanges that occurred during the sentencing hearing. First,
Swoveland points to a statement indicating that he
"thought he could get community service" after
"pleading guilty to one first-degree felony and one
second-degree felony, each with mandatory prison time."
(Appellant's Brief at 9). In other words, Swoveland is
challenging the trial court's compliance with Crim.R.
To substantially comply with the requirements of Crim.R.
11(C)(2)(a) in instances "where a defendant faces a
mandatory prison sentence," a "trial court must
determine, prior to accepting a plea, that the defendant
understands that he or she is subject to a mandatory prison
sentence and that as a result of the mandatory prison
sentence, he or she is not eligible for probation or
community control sanctions." State v. Tutt,
8th Dist. Cuyahoga No. 102687, 2015-Ohio-5145, ¶ 19,
citing State v. Balidbid, 2d Dist. Montgomery No.
24511, 2012-Ohio-1406, ¶ 10, State v. Brigner,
4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14,
State v. Hendrix, 12th Dist. Butler No.
CA2012-12-265, 2013-Ohio-4978, ¶ 6, and State
v. Dawson, 8th Dist. Cuyahoga No. 61828, 1993
WL 12286, *2 (Jan. 23, 1993).
A trial court can meet this requirement either by expressly
informing the defendant that he or she is subject to a
mandatory prison sentence and is therefore ineligible for
probation or community control sanctions or by confirming the
defendant's subjective understanding of that fact in some
other way, i.e., if the "totality of the
circumstances" warrants the trial court in making a
determination that the defendant otherwise ...