STATE OF OHIO v. CHARLES SMIDDY
Appellate Case No. 2014-CA-148
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
October 9, 2015
[Cite as State v. Smiddy, 2015-Ohio-4200.]
Trial Court Case No. 2014-CR-492 (Criminal Appeal from Common Pleas Court)
Rendered on the 9th day of October, 2015.
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting Attorney, 50 East Columbia Street, Fourth Floor, Springfiеld, Ohio 45502 Attorney for Plaintiff-Appellee
BRANDON CHARLES MCCLAIN, Atty. Reg. No. 0088280, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant
{¶ 1} Defendant-Apрellant, Charles Smiddy, appeals from his conviction and sentence on two counts of Gross Sexual Imposition, one count оf Pandering Sexually Oriented Matter Involving a Minor, and one count of Pandering Obscenity Involving a Minor. Following a guilty plea, Smiddy was sentenced to the maximum and consecutive sentences on these charges, for a total of 26 years in prison.
{¶ 2} Smiddy contends that the trial сourt erred by failing to comply with the requirements of
I. Facts and Course of Proceedings
{¶ 3} On August 4, 2014, Smiddy was indicted on two counts of Rape, with a specification that the alleged victim was under the age of 10 at the time of the offenses; four counts of Gross Sexual Imposition involving a child under the age оf 12 or 13; five counts of Pandering Sexually Oriented Matter Involving a Minor; and five counts of Pandering Obscenity Involving a Minor. Smiddy initially pled not guilty, but on Octоber 23, 2014, appeared in court and pled guilty to two counts of Gross Sexual Imposition, one count of Pandering Sexually Oriented Mаtter Involving a Minor, and one count of Pandering Obscenity Involving a Minor.
{¶ 4} In exchange for the guilty plea, the State agreed to dismiss all the remaining charges and specifications, and also agreed to a presentence investigation. The offenses of Gross Sexual Imposition involved a child who was less than ten years old at
{¶ 5} At the plea hearing, the trial court ascertained that Smiddy had signed the written plea agreement, had gone over the plea agreement with his attorney, and understood everything in the plea аgreement. The written plea agreement, which was filed on October 23, 2014, contained a section entitled “Waiver of Rights.” This sectiоn included the following paragraph:
I understand by pleading guilty I give up my right to a jury trial or court trial, where I could confront and have my аttorney question witnesses against me, and where I could use the power of the Court to call witnesses to testify for me. I know at trial I could not have to take the witness stand and could not be forced to testify against myself and that no one could comment if I chоse not to testify. I understand I waive my right to have the prosecutor prove my guilt beyond a reasonable doubt on every element of each charge.
Doc. #10, p. 3.
{¶ 6} During the plea hearing, the court engaged in a plea colloquy with Smiddy that included the following discussion:
THE COURT: Dо you understand that you have the right to a trial in this case?
THE DEFENDANT: Yes, Your Honor. I do.
THE COURT: At that trial you would have the right to require the State to prove beyond a rеasonable doubt each and every element of the offenses to which you are pleading guilty and you could only be cоnvicted upon a unanimous verdict of a jury.
Transcript of Proceedings, October 23, 2014 Plea Hearing, p.11.
{¶ 7} The trial court accepted Smiddy‘s plea and found him guilty of the offenses. After a presentence investigation, the court sentenced Smiddy, as noted abоve, to a total of 26 years in prison. Smiddy timely appealed from his conviction and sentence.
II. Did the Trial Court Fail to Comply with Crim.R. 11?
{¶ 8} Smiddy‘s sole assignment of error states that:
The Trial Court Erred by Acceрting Mr. Smiddy‘s Guilty Pleas Prior to Complying With the Procedural Requirements of Rule 11 of the Ohio Rules of Criminal Procedure.
{¶ 9} Under this assignment of error, Smiddy contends that the trial court failed to comply with the requirements of
{¶ 10}
{¶ 11} “The rights enunciated in
{¶ 12} In Barker, however, the Supreme Court of Ohio also stressed that “an alleged ambiguity during a
{¶ 13} The issue in the case before us is whether the trial court failed to comply with
{¶ 14} The same cоnsiderations apply here, in nearly identical circumstances. Smiddy was 51 years old at the time of the plea, and there is no indication in the record that he lacked the intelligence to understand the trial court‘s explanation.
{¶ 15} We further stressed in Courtney that even if we had found the court‘s explanation ambiguous (which we did not), the written plea specifically referenced the right to a jury trial, and the defendant, therefore, was “fully informed of her right to a jury trial.” Id. at ¶ 10. This is consistent with the decision in Barker. In the present case, the discussion during Smiddy‘s plea colloquy was not ambiguous, but any аmbiguity would have been resolved by the written plea agreement that Smiddy signed. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, at ¶ 25.
{¶ 16} Accordingly, Smiddy‘s sole assignment of error is overruled.
III. Conclusion
{¶ 17} Smiddy‘s sole assignment of error having been overruled, the judgment of the trial court is affirmed.
FROELICH, P.J. and DONOVAN, J., concur.
Ryan A. Saunders
Brandon Charles McClain
Hon. Douglas M. Rastatter