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State v. Bailey

Court of Appeals of Ohio, Seventh District, Belmont

November 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DAVID LEE BAILEY, JR., Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 18 CR 172

         JUDGMENT: Affirmed in part. Reversed in part and Remanded.

          Atty. Dan Fry, Belmont County Prosecutor, and Atty. Scott Lloyd, Assistant Prosecutor, for Plaintiff-Appellee and

          Atty. R. Aaron Miller, Aaron Miller Law Offices, LLC, for Defendant-Appellant.

          BEFORE: David A. D'Apolito, Gene Donofrio, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT ENTRY

          D'APOLITO, J.

         {¶1} Appellant David Lee Bailey, Jr. appeals his conviction by the Belmont County Court of Common Pleas for one count of attempted felonious assault, in violation of R.C. 2903.11(A)(1) and 2923.02(A), a felony of the third degree. Appellant advances two assignment of error, which initially appear to solely challenge the validity of his plea. First, Appellant argues that the trial court failed to adequately advise him at the plea hearing of the mandatory three-year term of postrelease control to be imposed following the completion of his sentence. However, the substance of Appellant's first assignment of error advocates remand for a limited resentencing hearing on the issue of postrelease control. Second, Appellant contends that he was not informed that he was waiving his constitutional right to the presumption of innocence throughout a trial. For the following reasons, we find that Appellant's plea was knowingly, intelligently, and voluntarily entered, but remand this matter for a limited resentencing hearing for notice regarding the imposition of postrelease control.

         FACTS AND PROCEDURAL HISTORY

         {¶2} Appellant has a history of alcoholism and spousal abuse. His criminal history includes two convictions for operating a motor vehicle while intoxicated, as well as misdemeanor convictions for disorderly conduct and resisting arrest. His conviction in the above-captioned appeal is the direct consequence of an alcohol-fueled attack on his wife, during which he fractured her jaw. When police officers arrived, Appellant violently resisted arrest. He swung his fists and kicked as police officers attempted to subdue him. Appellant struck one police officer in the head.

         {¶3} On October 9, 2018, Appellant executed a waiver of indictment and entered a guilty plea to a bill of information charging him with one count of attempted felonious assault. On November 5, 2018, the trial court imposed a sentence of three years, the maximum term of incarceration for a third-degree felony. No restitution was ordered nor fine imposed. This timely appeal followed.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ERRED BY ACCEPTING A PLEA THAT WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED.

         {¶4} Before a trial court may accept a guilty plea, the trial court must inform the defendant of five constitutional rights, as well as determine that the defendant understands that he is waiving each right as a consequence of his plea. State v. Rowbotham, 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. The trial court must strictly comply with the notice requirement relating to the defendant's constitutional rights. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 15, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. The constitutional rights are succinctly provided in Crim. R. 11(C)(2)(c):

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 ...

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