[Cite as State v. Snyder, 2018-Ohio-2826.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2017-A-0041
- vs - : 2017-A-0042
2017-A-0043
STEVEN JOSEPH SNYDER, :
Defendant-Appellant. :
Criminal Appeals from the Ashtabula County Court of Common Pleas, Case Nos. 2016
CR 00604, 2017 CR 00088 and 2017 CR 00089.
Judgment: Affirmed in part, reversed in part, and remanded.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Edward M. Heindel, 400 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Steven Joseph Snyder, appeals from his convictions
and sentence for Burglary and Attempted Burglary in the Ashtabula County Court of
Common Pleas. The issues to be determined by this court are whether a matter must
be remanded for resentencing when the court does not state consecutive sentencing
findings, whether a written jury waiver is necessary when a defendant enters a plea of
no contest, and whether a no contest plea is properly entered when errors in the written
plea agreement reference a guilty plea. For the following reasons, we affirm in part, and
reverse in part the judgment of the trial court, and remand for further proceedings
consistent with this opinion.
{¶2} On November 9, 2016, Snyder was indicted by the Ashtabula County
Grand Jury for Attempted Burglary, a felony of the third degree, in violation of R.C.
2911.12(A)(1) and R.C. 2923.02(A), in Case No. 2016 CR 000604. On March 16, 2017,
he was indicted for Burglary, a felony of the second degree, in violation of R.C.
2911.12(A)(1), in Case No. 2017 CR 00088. On the same date, he was also indicted
for Attempted Burglary, a felony of the third degree, in violation of R.C. 2911.12(A)(1)
and R.C. 2923.02(A), in Case No. 2017 CR 00089.
{¶3} A plea hearing was held on April 27, 2017, at which Snyder entered pleas
of no contest to the three offenses as charged in the Indictments. At the hearing, a
signed Written Plea of No Contest and Plea Agreement for each of the three cases was
presented. On the first two pages of each document, the entry of a plea of “no contest”
to each of the offenses was discussed. The final page, however, included a few
references to a “guilty” plea.
{¶4} Prior to entry of the pleas, the court reviewed Snyder’s rights, the
offenses, and possible sentences. The judge explained the meaning of a no contest
plea in contrast with a guilty plea. The State described the offenses. In Case No. 2016
CR 000604, Snyder attempted to enter a residence, and was observed “throw[ing]
things at the sliding glass patio door, trying to force his way in.” In Case No. 2017 CR
00088, Snyder knocked on a resident’s front door, jimmied the lock and began to enter
the home, although the owner was able to remove him from the residence. Finally, in
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Case No. 2017 CR 00089, a homeowner observed Snyder force her locked door open
before seeing the homeowner and fleeing. After the description of the crimes, Snyder
agreed to proceed with his no contest plea. The court found him guilty of these
offenses, which finding was memorialized in its May 2, 2017 Judgment Entries.
{¶5} A sentencing hearing was held on June 29, 2017. Defense counsel
requested that Snyder be ordered to serve community control. The State
recommended consecutive two-year prison terms. The court noted Snyder’s juvenile
involvement in the criminal justice system, that he had been “in and out of the court
system,” and the risk of harm associated with burglaries. The court imposed a sentence
of three years for Burglary, and one year for each offense of Attempted Burglary, to run
consecutively for a total prison term of five years.
{¶6} The foregoing was memorialized in Judgment Entries of Sentence filed on
June 30, 2017. The Entries stated that the sentences were consistent with the
purposes and principles of sentencing under R.C. 2929.11, and included findings on
these factors. No findings relating to consecutive sentencing were made.
{¶7} Snyder timely appeals and raises the following assignments of error:
{¶8} “[1.] The trial court erred when it did not make the findings required by
R.C. 2929.19(C)(4) prior to imposing consecutive sentences.
{¶9} “[2.] The trial court erred when it accepted a no contest plea, and found
Snyder guilty without a full written jury waiver being first executed in open court, signed
by the defendant, and filed with the clerk of courts.
{¶10} “[3.] The trial court erred when it accepted Snyder’s ‘no contest’ plea
because the written version of the plea agreement referred to him as pleading ‘guilty.’”
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{¶11} In his first assignment of error, Snyder argues that the trial court erred by
failing to make necessary findings to order consecutive sentences. The State concedes
that the matter should be remanded to the trial court to correct this error.
{¶12} “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing * * * if it
clearly and convincingly finds * * * [t]hat the record does not support the sentencing
court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence
is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b). However, since Snyder
failed to object to his sentence, “our review is limited to consideration of whether the trial
court committed plain error.” See State v. Moore, 11th Dist. Trumbull No. 2015-T-0072,
2017-Ohio-7024, ¶ 45. “When the record demonstrates that the trial court failed to
make the findings required by R.C. 2929.14(C)(4) before imposing consecutive
sentences * * *, the appellant’s sentence is contrary to law and constitutes plain error.”
State v. Aikens, 2016-Ohio-2795, 64 N.E.3d 371, ¶ 53 (11th Dist.).
{¶13} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple
offenses may be ordered to be served consecutively if the court finds it “necessary to
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public,” and if the court also finds any of the factors
in R.C. 2929.14(C)(4)(a)-(c) are present. Those factors include the commission of an
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offense while the offender is awaiting trial or is under post-release control, the
commission of crimes as part of a course of conduct where no single term would reflect
the seriousness of the conduct, or where the offender’s history of criminal conduct
demonstrates consecutive sentences are necessary to protect the public from future
crime. R.C. 2929.14(C)(4)(a)-(c).
{¶14} “[T]o impose consecutive terms of imprisonment, a trial court is required to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry.” State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Otherwise, the sentence is contrary to law. Id.
However, courts are not “required to give a talismanic incantation of the words of the
statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.” Id.
{¶15} A review of the sentencing hearing transcript and each of the three
Judgment Entries of Sentence shows no discussion of or reference to consecutive
sentencing factors. The State concedes that this was an error and requests that this
matter be remanded for resentencing.
{¶16} The court recognized the harm caused to homeowners by burglaries and
referenced Snyder’s prior misdemeanors, while noting that these were his first felony
offenses. However, it did not make a finding that consecutive sentences were
necessary to protect the public from future harm. See Moore, 2017-Ohio-7024, at ¶ 52-
53 (the required findings were not made when “the trial court referenced appellant’s
extensive criminal record but did not make a specific finding or set forth any facts to
suggest consecutive sentences were “‘necessary to protect the public from future crime
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by the offender’”). Significantly, the trial court also failed to make a proportionality
finding, i.e., that consecutive sentences were not disproportionate to the seriousness of
Snyder’s conduct. For these reasons, it is impossible, from the limited comments made
at sentencing, to “discern that the trial court engaged in the [consecutive sentencing]
analysis,” as is required by Bonnell. Bonnell at ¶ 29. See Aikens, 2016-Ohio-2795, 64
N.E.3d 371, at ¶ 62 (“this is not simply a case where the trial court failed to give a
talismanic incantation of the statutory findings during the sentencing hearing; the court
said nothing about the proportionality of consecutive sentences to the seriousness of
appellant’s conduct,” rendering the sentence contrary to law).
{¶17} Since the record demonstrates that the requisite R.C. 2929.14(C)(4)
findings were not made, as the State concedes, Snyder’s sentence is contrary to law
and constituted plain error. We therefore vacate his sentence. On remand, the trial
court is instructed to resentence Snyder and, if it re-imposes consecutive sentences, to
make all necessary statutory findings. Moore at ¶ 56.
{¶18} The first assignment of error is with merit.
{¶19} In his second assignment of error, Snyder argues that the court erred by
accepting a no contest plea without a written jury waiver.
{¶20} Pursuant to R.C. 2945.05, in all criminal cases, a defendant may waive a
trial by jury and be tried by the court, but such waiver “shall be in writing,” “signed by the
defendant,” and filed as part of the record.
{¶21} This court has previously addressed this issue, explaining that “Ohio
appellate courts have often held that a court may accept a plea of guilty or no contest
without obtaining the written waiver mandated by R.C. 2945.05.” Ashtabula v. Jones,
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11th Dist. Ashtabula No. 2016-A-0053, 2017-Ohio-1103, ¶ 28; State v. Keiffer, 4th Dist.
Athens No. 97 CA 23, 1997 WL 776349, *4 (Dec. 8, 1997) (“a trial court’s failure to
obtain a written waiver of a jury demand is not reversible error when the defendant has
pled no contest”); also Martin v. Maxwell, 175 Ohio St. 147, 191 N.E.2d 838
(1963) (“The provisions of Section 2945.05, Revised Code, requiring the filing of a
written waiver of a trial by jury are not applicable where a plea of guilty is entered by an
accused. The failure in such an instance to file a waiver does not deprive an accused of
any of his constitutional rights nor does it deprive the court of its jurisdiction.”).
{¶22} Snyder concedes that no jury waiver is needed in the case of the entry of
a guilty plea but argues that it is necessary when entering a no contest plea. However,
Jones specifically held no waiver was necessary in no contest pleas, as in either case
the defendant will not face a trial. Jones at ¶ 27-28, citing State ex rel. Stern v. Mascio,
75 Ohio St.3d 422, 424, 662 N.E.2d 370 (1996). To the extent that Snyder cites the
First District case of State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st
Dist.1995), in support of his argument, this court recognized the existence of that case
in Jones but found it unpersuasive given the authority cited to the contrary. Snyder fails
to provide any persuasive argument to abandon this court’s precedent.
{¶23} The second assignment of error is without merit.
{¶24} In his third assignment of error, Snyder argues that the trial court erred in
accepting his no contest plea because the signature page of the written plea agreement
referenced a “guilty” plea. He argues that this error created a lack of substantial
compliance with the requirements of Crim.R.11 in the acceptance of his plea.
{¶25} In a felony case, “the court * * * shall not accept a plea of guilty or no
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contest without first addressing the defendant personally” and complying with
requirements to determine the voluntary nature of the plea and that the defendant
understands the nature of the charges and maximum penalty; informing the defendant
of the effect of his plea and that the court may proceed to judgment and sentencing; and
advising the defendant of various rights waived by entering the plea. Crim.R.
11(C)(2)(a)-(c).
{¶26} The standard applied to the nonconstitutional portions of Rule 11, which
are at issue in this case, is “substantial compliance.” State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. “Substantial compliance means that under
the totality of the circumstances the defendant subjectively understands the implications
of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990). “Furthermore, a defendant who challenges his guilty plea on the
basis that it was not knowingly, intelligently, and voluntarily made must show a
prejudicial effect. * * * The test is whether the plea would have otherwise been made.”
(Citation omitted.) Id.
{¶27} There is no question that the trial court reviewed the various rights with
Snyder, as well as the charges and penalties. Snyder argues only that there was an
error in the plea agreement and, thus, he did not intend to or knowingly enter a no
contest plea.
{¶28} It is evident from the record that Snyder was aware that he was entering a
plea of no contest rather than a guilty plea. The document he signed was entitled
“Written Plea of No Contest” and contained references to a no contest plea throughout,
except on the last page, which contained a few references to a “guilty plea.” One of the
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instances of “guilty” on the final page was changed to “no contest” in handwriting. At
the plea hearing, the court, prosecutor, and defense counsel each stated that Snyder
would be entering a no contest plea and the court referenced that the plea would be “no
contest” multiple times when explaining Snyder’s rights. The court also explained
appellate rights as they relate to no contest pleas. When asked to plead, Snyder stated
“No contest, Your Honor.” There is no indication that Snyder ever intended to enter a
guilty plea or believed he was doing so. This conclusion is further supported by the fact
that the trial court’s May 2, 2017 Judgment Entries accepting Snyder’s pleas stated that
he had entered pleas of “no contest.”
{¶29} Given the foregoing, the typos at the end of the plea agreement had no
prejudicial effect on Snyder, who was aware of the plea he was entering. Thus, under
both the prejudice standard for evaluating pleas entered under Crim.R. 11 and under
the harmless error standard, the typos do not warrant reversal or the withdrawal of
Snyder’s plea. See Nero at 108; Crim.R. 52(A) (“[a]ny error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded”).
{¶30} The third assignment of error is without merit.
{¶31} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed in part and reversed in part, and this matter is remanded for
further proceedings consistent with this opinion. Costs to be taxed against the parties
equally.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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