Court of Appeals of Ohio, Seventh District, Belmont
Criminal Appeal from the Court of Common Pleas of Belmont
County, Ohio Case No. 18 CR 172
Affirmed in part. Reversed in part and Remanded.
Dan Fry, Belmont County Prosecutor, and Atty. Scott Lloyd,
Assistant Prosecutor, for Plaintiff-Appellee and
R. Aaron Miller, Aaron Miller Law Offices, LLC, for
BEFORE: David A. D'Apolito, Gene Donofrio, Carol Ann
OPINION AND JUDGMENT ENTRY
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.
AND PROCEDURAL HISTORY
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.
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.
OF ERROR NO. 1
TRIAL COURT ERRED BY ACCEPTING A PLEA THAT WAS NOT KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY ENTERED.
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.
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 ...