2023 Ohio 2011
Ohio Ct. App.2023Background
- Hermes was charged in two Ottawa County cases with multiple counts of rape and gross sexual imposition arising from alleged assaults at a family-run babysitting service; after plea negotiations he pled guilty to six counts of gross sexual imposition (two in one case, four in the other).
- Written plea agreements (signed and initialed by Hermes) stated he waived his right to a 'jury trial or court trial.' The trial court’s oral colloquy repeatedly referred only to the right to 'a trial' and did not expressly say 'jury trial.'
- The trial court accepted Hermes’s guilty pleas, later imposed six consecutive 60‑month prison terms (aggregate 30 years), and entered journalized judgments of conviction and sentence.
- Hermes appealed raising four assignments of error (mandatory sentencing, ineffective assistance, defective Crim.R. 11 colloquy re jury-trial advisory, and improper consecutive sentences).
- The State filed a Notice of Conceded Error conceding reversible error on assignment three (failure to strictly comply with Crim.R. 11(C)(2)(c) by not orally advising of the right to a jury trial). Hermes opposed post-appeal plea negotiations and asked this court to remand on other grounds.
- The Sixth District held the State's concession dispositive: the trial court did not strictly comply with Crim.R. 11 on the jury‑trial advisory, Hermes’s pleas were invalid, convictions and sentences were vacated, and the cases were remanded for further proceedings.
Issues
| Issue | State's Argument | Hermes' Argument | Held |
|---|---|---|---|
| Whether trial court strictly complied with Crim.R. 11(C)(2)(c) by advising of the right to a jury trial before accepting guilty pleas | Conceded error: the colloquy failed to state 'jury trial' as required; reversible error | Argued post-appeal plea negotiations should control and that vacating pleas would prejudice him; alternatively sought to withdraw this assignment | Court accepted concession: trial court did not strictly comply; pleas invalid; convictions and sentences vacated and remanded |
| Whether mandatory prison terms were properly imposed under applicable statutes | Argued sentencing was lawful (initially) | Contended sentences were mandatory in error and sought remand for non-mandatory sentencing | Rendered moot by vacation of convictions; court did not decide on merits |
| Whether counsel was ineffective for failing to object to imprisonment | Argued no ineffectiveness or that any error was rendered moot | Argued counsel’s failure was ineffective assistance of counsel | Rendered moot by vacation of convictions; court did not decide on merits |
| Whether consecutive sentences under R.C. 2929.14(C)(4) were supported by the record | Argued consecutive sentences were supported | Argued consecutive terms unsupported | Rendered moot by vacation of convictions; court did not decide on merits |
Key Cases Cited
- State v. Miller, 151 N.E.3d 617 (Ohio 2020) (discussing Crim.R. 11 and appellate considerations when error is conceded)
- State v. Veney, 897 N.E.2d 621 (Ohio 2008) (holding strict compliance required for advising defendant of right to jury trial under Crim.R. 11)
- State v. Dangler, 164 N.E.3d 286 (Ohio 2020) (establishing the three-part Crim.R. 11 review: compliance, excusing failure, and prejudice)
- State v. Brinkman, 180 N.E.3d 1074 (Ohio 2021) (reinforcing that strict—rather than substantial—compliance is required for certain Crim.R. 11 advisals)
- Transamerica Ins. Co. v. Nolan, 649 N.E.2d 1229 (Ohio 1995) (timely filing of a notice of appeal vests jurisdiction)
- In re Terrance P., 706 N.E.2d 801 (Ohio App.) (discussing the appellate court's authority to review the validity of an appeal notice)