STATE OF OHIO v. EUGENE SCHMICK
No. 95210
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 12, 2011
2011-Ohio-2263
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-532200
JUDGMENT: PLEA VACATED, REVERSED AND REMANDED
BEFORE: Jones, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 12, 2011
Ian N. Friedman
Ronald L. Frey
Ian N. Friedman & Associates, LLC
1304 West 6th Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Jesse W. Canonico
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{1} Defendant-appellant, Eugene Schmick (“Schmick“), appeals his conviction for 17 counts of pandering sexually-oriented matter involving a minor, 27 counts of illegal use of a minor in nudity-oriented material or performance, and one count of possessing criminal tools. Finding merit to the appeal, we vacate his guilty pleas and remand the case.
{3} Schmick appeals, raising six assignments of error. After review, we find that the first and second assignments of error are dispositive of this appeal. The first and second assignments of error are as follows:
“I. The court‘s failure to strictly comply with
Crim.R. 11(C)(2)(c) violated the defendant-appellant‘s right to due process of law as guaranteed by Article I, Section 10 of the Ohio State Constitution and the Fourteenth Amendment to the United States Constitution.”“II. The defendant-appellant‘s plea was not made knowingly, voluntarily or intelligently as the court failed to strictly comply with
Crim.R. 11(C)(2)(c) .”
{4} In the first and second assigned errors, Schmick argues his guilty plea was not knowingly, intelligently, and voluntarily made and, therefore, his right to due process of law was violated when the trial court failed to inform him of his privilege against self-incrimination.
{5}
{6} We employ a de novo standard of review to determine whether the trial court accepted a plea in compliance with
{7}
“(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 hearing.
“(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.”
{8} The trial court must strictly comply with those provisions of
{9} In State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the Ohio Supreme Court held that “a trial court must strictly comply with
{10} In the present case, the trial court failed to inform Schmick of his constitutional right against compulsory self-incrimination or his “right to remain silent.” See State v. Burston, Cuyahoga App. No. 93645, 2010-Ohio-5120 (advising a defendant that he is waiving
{11} The trial court‘s failure to strictly comply with
{12} The first assignment of error is sustained. Based on this, the remaining assignments of error are moot. See
{13} Accordingly, the plea is vacated, Schmick‘s conviction and sentence are reversed, and the case is remanded to the trial court for proceedings in accordance with this opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
LARRY A. JONES, JUDGE
Appendix
“III. The court‘s imposition of consecutive sentences, without making appropriate findings and reasons as required by
R.C. 2929.14 , violated the defendant-appellant‘s right to due process of law as guaranteed by Article I, Section 10 of the Ohio State Constitution and the Fourteenth Amendment to the United States Constitution.“IV. The defendant-appellant‘s right to due process of law as guaranteed by Article I, Section 10 of the Ohio State Constitution and the Fourteenth Amendment to the United States Constitution was violated when the trial court sentenced defendant upon claims of other alleged offenses occurring on other dates.
“V. The defendant-appellant‘s right to due process of law as guaranteed by Article I, Section 10 of the Ohio State Constitution and the Fourteenth Amendment to the United States Constitution was violated when the trial court sentenced defendant to consecutive sentences amounting to seventeen (17) years.
“VI. The defendant-appellant was denied his fundamental right to effective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the Unites States of America and made applicable to the States by and through the Fourteenth Amendment to the Constitution of the United States of America.”