[Cite as State v. Pearson,
2021-Ohio-520.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-11
:
v. : Trial Court Case No. 2019-CR-190
:
SHELDON K. PEARSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of February, 2021.
...........
SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Assistant Prosecuting
Attorney, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio
43078
Attorney for Plaintiff-Appellee
TRAVIS DUNNINGTON, Atty. Reg. No. 0096519, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Sheldon K. Pearson, appeals from his conviction in the
Champaign County Court of Common Pleas after he pled guilty to one count of
aggravated possession of drugs and one count of failure to appear as required by
recognizance. In support of his appeal, Pearson claims that the trial court erred by
imposing consecutive sentences. Pearson also claims that the trial court erred by
accepting his guilty plea to the failure-to-appear charge because the charging indictment
was defective in that it did not include all essential elements of that offense. For the
reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On August 5, 2019, a Champaign County Grand Jury returned an indictment
charging Pearson with one count of aggravated trafficking in drugs, a fourth-degree
felony, and one count of aggravated possession of drugs, a fifth-degree felony. The trial
court thereafter released Pearson on a personal recognizance bond and ordered Pearson
to appear for an arraignment hearing on August 26, 2019. However, Pearson failed to
appear, and the trial court issued a capias for his arrest. Shortly thereafter, Pearson
telephoned the trial court and explained that he had been mistaken about the time of the
arraignment hearing. As a result, the arraignment hearing was continued to later in the
day on August 26th. Pearson thereafter appeared at the arraignment hearing and
entered a plea of not guilty to the indicted charges. The trial court then recalled the
capias and reinstated Pearson’s personal recognizance bond.
{¶ 3} On September 5, 2019, the trial court was advised that Pearson had violated
the conditions of his bond by testing positive for cocaine, methamphetamine,
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amphetamine, MDMA, alcohol, and THC. Although it found Pearson guilty of the bond
violation, the trial court continued Pearson’s personal recognizance bond. The trial
court, however, advised Pearson that his bond violation would be a sentencing factor if
he were convicted, and that he would be incarcerated pending his trial if he violated his
bond again.
{¶ 4} Three weeks after the trial court continued Pearson’s personal recognizance
bond, Pearson’s pretrial services officer notified the trial court of another bond violation.
Specifically, it was alleged that Pearson failed to attend two pretrial services appointments
on September 6 and 20, 2019, and several TCN counseling treatment sessions. As a
result of these alleged violations, the matter was set for a bond violation hearing on
October 3, 2019. Pearson failed to attend the hearing.
{¶ 5} Due to Pearson’s failure to attend the bond violation hearing, the trial court
suspended Pearson’s personal recognizance bond and issued a capias for his arrest.
Pearson was also indicted on one count of failure to appear as required by recognizance
in violation of R.C. 2937.29 and R.C. 2937.99(A)/(B), a felony of the fourth degree.
{¶ 6} On October 25, 2019, after Pearson was taken into custody, Pearson
appeared at an arraignment hearing for the failure-to-appear charge and pled not guilty
to the failure-to-appear charge; the trial court continued the suspension of Pearson’s
bond. Then, on November 7, 2019, the trial court released Pearson on a bail bond in the
sum of $10,000. The bail bond included several standard and special conditions.
These conditions included, but were not limited to, Pearson’s being placed on house
arrest via electronic home monitoring and his not possessing or using any controlled
substances.
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{¶ 7} On December 16, 2019, the trial court held a hearing on Pearson’s alleged
bond violations. During the hearing, the trial court found Pearson guilty of the earlier
violations for failing to attend two pretrial services appointments and several TCN
counseling treatment sessions. Also during this hearing, Pearson admitted to violating
his bond by failing to attend the October 3, 2019 bond violation hearing. Pearson further
admitted to violating his bond on December 12, 2019, by testing positive for THC. The
trial court found Pearson guilty of all the admitted bond violations and continued his bond
with the modification that Pearson’s brother was not permitted to visit his residence for
any reason.
{¶ 8} Following the bond violation hearing, Pearson pled guilty to aggravated
possession of drugs and failure to appear as required by recognizance. In exchange for
Pearson’s guilty plea, the State agreed to dismiss the charge for aggravated trafficking in
drugs and to recommend a presentence investigation (“PSI”) for purposes of sentencing.
The State also agreed to recommend community control sanctions with special conditions
if Pearson had no criminal history other than what was disclosed in his discovery packet.
It was agreed that if Pearson’s PSI revealed any additional criminal history, or if Pearson
was charged with another criminal offense or violated the conditions of his bond, the State
was not bound to its recommendation of community control. Pearson further agreed to
pay court costs and any court-appointed counsel fees that may be imposed at sentencing.
{¶ 9} After conducting a plea colloquy, the trial court accepted Pearson’s guilty
plea, ordered a PSI, and scheduled the matter for sentencing on January 9, 2020. Then,
one day after Pearson entered his guilty plea, the trial court received notice of an alleged
bond violation for Pearson’s failing to abide by his house arrest. Specifically, it was
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alleged that on December 16, 2019, Pearson engaged in unauthorized travel to a
McDonalds in Urbana, Ohio. In light of this allegation, the trial court scheduled a bond
violation hearing to take place at the time of Pearson’s sentencing hearing.
{¶ 10} On December 30, 2019, the trial court received notice of two more alleged
bond violations. It was alleged that on December 23, 2019, Pearson engaged in
unauthorized travel to a business in St. Paris, Ohio, and that on December 25, 2019,
Pearson engaged in unauthorized travel to a residence in St. Paris, Ohio. The trial court
ordered these alleged bond violations to also be heard at the time of Pearson’s sentencing
hearing.
{¶ 11} On January 7, 2020, the trial court received yet another notice of Pearson’s
violating his bond. This time it was alleged that on January 6, 2020, Pearson engaged
in unauthorized travel to a residence in St. Paris, Ohio, and allowed the battery in his
electronic home monitoring device to go uncharged. Again, the trial court ordered these
allegations to be heard at the time of Pearson’s sentencing hearing. The trial court also
suspended Pearson’s bond and issued a capias for his arrest.
{¶ 12} On January 9, 2020, Pearson failed to appear at his sentencing hearing.
Pearson was thereafter arrested on February 25, 2020. The sentencing and bond
violation hearings were then rescheduled for March 3, 2020. At the bond violation
hearing, Pearson admitted to all the alleged bond violations and the trial court found him
guilty of the violations. The trial court thereafter advised the State that, in light of
Pearson’s bond violations, the State was no longer bound by its agreement to recommend
community control sanctions at sentencing.
{¶ 13} During the sentencing hearing, the trial court found that pursuant to R.C.
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2929.13(B)(1)(b), Pearson was not amenable to community control sanctions because of
his bond violations and because he had previously served a prison term. The trial court
then sentenced Pearson to 9 months in prison for aggravated possession of drugs and
18 months in prison for failure to appear as required by recognizance. The trial court
ordered those sentences to be served consecutively for a total prison term of 27 months.
The trial court also ordered Pearson to pay a $250 fine, court costs, and court-appointed
counsel fees.
{¶ 14} Pearson now appeals from his conviction, raising two assignments of error
for review.
First Assignment of Error
{¶ 15} Under his first assignment of error, Pearson contends that the trial court
erred by imposing consecutive sentences. Although Pearson does not dispute that the
trial court made the statutorily-required findings for imposing consecutive sentences
under R.C. 2929.14(C)(4), Pearson asserts that his sentence should be vacated because
those findings were not supported by the record. We disagree.
{¶ 16} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive
sentences if it finds that: (1) consecutive service is necessary to protect the public from
future crime or to punish the offender; (2) consecutive sentences are not disproportionate
to the seriousness of the offender’s conduct and to the danger the offender poses to the
public; and (3) one or more of the following three findings are satisfied:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
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imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any
of the courses of conduct adequately reflects the seriousness of the
offender's conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 17} “[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, syllabus.
“[W]here a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an
appellate court may not reverse the trial court’s imposition of consecutive sentences
unless it first clearly and convincingly finds that the record does not support the trial court's
findings.” State v. Withrow,
2016-Ohio-2884,
64 N.E.3d 553, ¶ 38 (2d Dist.). See also
State v. Marcum,
146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231, ¶ 22 (“R.C.
2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by
clear and convincing evidence that the record does not support any relevant findings
under … [R.C. 2929.14(C)(4)]”). This is a very deferential standard of review, as “the
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question is not whether the trial court had clear and convincing evidence to support its
findings, but rather, whether we clearly and convincingly find that the record fails to
support the trial court's findings.” (Citation omitted.) Withrow at ¶ 38. In applying that
standard of review, “the consecutive nature of the trial court’s sentencing should stand
unless the record overwhelmingly supports a contrary result.” (Citation omitted.) Id. at
¶ 39.
{¶ 18} As previously noted, Pearson does not dispute that the trial court made the
consecutive-sentence findings required by R.C. 2929.14(C)(4) at the sentencing and in
the sentencing entry. Indeed, the record establishes that the trial court found that: (1)
consecutive sentences were necessary to protect the public from future crime and to
punish Pearson; (2) consecutive sentences were not disproportionate to the seriousness
of Pearson’s conduct and the danger he poses to the public; (3) Pearson committed one
or more of his offenses while he was awaiting trial or sentencing; and (4) Pearson’s history
of criminal conduct demonstrates that consecutive sentences are necessary to protect
the public from future crime by him.
{¶ 19} Pearson contends, however, that the record does not support these
findings. Specifically, Pearson claims that the record does not support a finding that
consecutive sentences were necessary to protect the public from future crime by him or
that consecutive sentences were not disproportionate to the danger he poses to the
public. To support this claim, Pearson argues that his convicted criminal behavior—
possessing a small amount of methamphetamine and failing to appear at court—did not
jeopardize the health and safety of anyone but himself.
{¶ 20} Nevertheless, for purposes of sentencing, this court “ ‘is not confined to
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[considering] the evidence that strictly relates to the conviction offense because the court
is no longer concerned … with the narrow issue of guilt.’ ” State v. Waggoner, 2d Dist.
Montgomery No. 28453, 2020-Ohio-212, ¶ 12, quoting State v. Bowser,
186 Ohio App.3d
162,
2010-Ohio-951,
926 N.E.2d 714, ¶ 14 (2d Dist.). Sentencing courts may consider
“facts related to charges that were dismissed pursuant to a plea bargain, and allegations
contained in a PSI report.” State v. Bautista, 2d Dist. Clark No. 2015-CA-74, 2016-Ohio-
5436, ¶ 12, citing State v. Clemons, 2d Dist. Montgomery No. 26038,
2014-Ohio-4248,
¶ 8; Bowser at ¶ 15; State v. McNeil, 2d Dist. Clark No. 2019-CA-51,
2020-Ohio-3202,
¶ 14.
{¶ 21} The record establishes that Pearson had a third charge for aggravated
trafficking in drugs that was dismissed pursuant to a plea agreement. Concerning that
charge, the PSI report indicated that law enforcement officers discovered several items
of drug paraphernalia inside of Pearson’s residence. The officers also discovered three
individuals in the home using methamphetamine with Pearson. Two of the three
individuals were on probation and one of them had a warrant for her arrest. When
interviewed by the officers, Pearson admitted to giving methamphetamine to the individual
with the warrant and to using methamphetamine himself. Because Pearson’s criminal
conduct involved him providing individuals with drugs and a place to use drugs, we cannot
say that the record clearly and convincingly fails to support the trial court’s finding that
there was a need to protect others from Pearson’s criminal conduct and to punish him.
{¶ 22} We also cannot say that the record clearly and convincingly fails to support
the trial court’s finding that consecutive sentences were not disproportionate to the danger
Pearson posed to the public, as Pearson had an extensive criminal record. Between
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1995 and 1999, Pearson received juvenile adjudications for assault, theft, counterfeit
controlled substance, and criminal trespass. Then, over the next 20 years, Pearson
received felony convictions for receiving stolen property, breaking and entering, theft,
burglary, complicity to felonious assault, menacing by stalking, telecommunications
harassment, domestic violence, and forgery. Pearson also had multiple OVI convictions,
community control violations, and several misdemeanor convictions for assault, criminal
trespass, underage consumption, disorderly conduct, driving under suspension,
telephone harassment, theft, receiving stolen property, possession of drugs, possession
of drug paraphernalia, and unauthorized use of property.
{¶ 23} Although Pearson does not dispute his criminal history, he argues that the
record failed to support the trial court’s finding under R.C. 2929.14(C)(4)(c), i.e., that his
criminal history demonstrated a need to protect the public from future crime by him. We
could not disagree more. The PSI report established that Pearson had continually
flouted the law over the past 24 years by engaging in a wide range of criminal activity that
involved violence, drugs, alcohol, theft, and deception. The PSI also established that
Pearson had not responded favorably to past sanctions, which included several fines,
probation, substance abuse treatment, and multiple jail and prison sentences. Given the
nature and extent of Pearson’s criminal record and his unfavorable response to
previously-imposed sanctions, we cannot say that the record clearly and convincingly
failed to support the trial court’s finding that Pearson’s criminal history demonstrated a
need to protect the public from future crime by him.
{¶ 24} That said, even if the record had not supported the trial court’s criminal-
history finding under R.C. 2929.14(C)(4)(c), the trial court also made a finding under R.C.
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2929.14(C)(4)(a), i.e., that Pearson committed one or more of the multiple offenses
while he was awaiting trial or sentencing. This finding is not in dispute and was not
unsupported by the record, as Pearson committed the offense of failure to appear as
required by recognizance while he was awaiting trial/sentencing. Because only one of
the three findings under division (a) through (c) of R.C. 2929.14(C)(4) must be present,
the trial court’s finding under division (a) was sufficient to impose consecutive sentences.
Therefore, for all the foregoing reasons, Pearson’s claim that the record failed to support
the trial court's consecutive-sentence findings lacks merit.
{¶ 25} Pearson’s first assignment of error is overruled.
Second Assignment of Error
{¶ 26} Under his second assignment of error, Pearson contends that the trial court
erred by accepting his guilty plea to failure to appear as required by recognizance in
violation of R.C. 2937.29 and R.C. 2937.99(A) and (B). In support of this claim, Pearson
argues that the charging indictment was defective because it did not specify that Pearson
had been released on his own recognizance, but simply stated that he “fail[ed] to appear
as required by recognizance.” Pearson asserts that being released on his own
recognizance was an essential element of the offense at issue, and that the failure to
include that element in the indictment warrants vacating his conviction. Pearson,
however, waived this claim for appeal.
{¶ 27} This court has consistently held that “a defendant waives any deficiency in
the indictment by failing to object to the indictment and pleading guilty to the offense.”
State v. Edwards, 2d Dist. Montgomery No. 22648, 2009-Ohio-1408, ¶ 34, citing State v.
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Barton, 108 Ohio St.3d 402,
2006-Ohio-1324,
844 N.E.2d 307, ¶ 73; State v. Easter, 2d
Dist. Montgomery No. 22487,
2008-Ohio-6038, ¶ 27; State v. Portis, 2d Dist. Clark No.
2008-CA-62,
2009-Ohio-3770, ¶ 4; State v. Akhmedov, 2d Dist. Montgomery No. 28185,
2019-Ohio-3586, ¶ 10. “This is true even when an indictment fails to include an essential
element of the charged offense.” (Citations omitted.) Portis at ¶ 4.
{¶ 28} Pearson concedes that he did not object to the alleged deficiency in the
indictment at the trial court level and that he has waived all but plain error for appeal.
See State v. Baker, 2018-Ohio-3925,
119 N.E.3d 987, ¶ 12 (2d Dist.) (“[a]n objection to
an indictment that is not raised prior to trial or entering a plea as required by Crim.R.
12(C)(2) is waived unless it constitutes plain error”). “An error qualifies as plain error
only if the error is obvious and but for the error the outcome of the proceeding clearly
would have been otherwise.” (Citation omitted.) State v. Molen, 2d Dist. Montgomery
No. 21941,
2008-Ohio-6237, ¶ 9. “The burden of demonstrating plain error is on the
party asserting it.” State v. Quarterman,
140 Ohio St.3d 464,
2014-Ohio-4034,
19
N.E.3d 900, ¶ 16, citing State v. Payne,
114 Ohio St.3d 502,
2007-Ohio-4642,
873 N.E.2d
306, ¶ 17.
{¶ 29} In an attempt to establish plain error, Pearson cites this court’s holding in
State v. Yslas, 2007-Ohio-5646,
173 Ohio App.3d 396 (2d Dist.). In Yslas, count two of
the defendant’s indictment included a fourth-degree felony charge for possession of crack
cocaine “in an amount that equals or exceeds five grams but is less than twenty-five
grams” in violation of R.C. 2925.11(C)(4)(b). (Emphasis added.) Id. at ¶ 12. The
defendant entered a no contest plea to the charge and thereafter appealed from his
conviction. On appeal, the defendant argued that the trial court erred in accepting his no
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contest plea because his indictment was fatally defective in that it charged him with
possessing crack cocaine when he actually possessed powder cocaine. Id. at ¶ 9.
Because the defendant never raised an objection to the indictment in the court below, we
found that he had waived all but plain error for appeal. Id. at ¶ 10.
{¶ 30} After reviewing the matter, we held that: “Even though defendant's no-
contest plea waived any error or defect in the sufficiency of the state’s evidence or proof
under which defendant was convicted, … including any variance between the particular
controlled substance alleged in the indictment and that actually possessed by defendant,
the more fundamental problem in this case is that count two of the indictment charges an
offense that does not exist in the section of the Revised Code charged, R.C.
2925.11(C)(4), or any other.” (Emphasis added.) Id. at ¶ 14. We noted that under
R.C. 2925.11(C)(4)(b), an individual commits fourth-degree felony possession of crack
cocaine if he or she possesses crack cocaine in an amount that “equals or exceeds one
gram but is less than five grams.” (Emphasis added.) Id. at ¶ 18. We then explained
that:
The problem here is that count two of the indictment charged
defendant with possession of crack cocaine in an amount more than five
but less than 25 grams by weight, the quantity which R.C. 2925.11(C)(4)(b)
applies to possession of powder cocaine. That section does not prohibit
possession of crack cocaine in that same gross quantity. Therefore, count
two of the indictment to which defendant entered a plea of no contest fails
to charge a valid statutory offense.
Section 10, Article I of the Ohio Constitution guarantees the accused
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that the essential facts constituting the offense for which he is charged will
be found in the grand jury’s indictment. … The identity of a controlled
substance involved in a drug offense is an essential element of the crime
that must be included in the indictment. The omission of that information
cannot be cured by amendment pursuant to Crim.R. 7(D), because to do so
would change the very identity of the offense charged.
(Citations omitted.) Yslas, 2007-Ohio-5646,
173 Ohio App.3d 396 at ¶ 19-20.
{¶ 31} In light of this, we found plain error existed because “[t]he indictment
charged defendant with possessing a particular controlled substance, crack cocaine, that
is not only different from the controlled substance that he actually possessed, powder
cocaine, but in a gross amount that does not constitute an offense under R.C.
2925.11(C)(4)(b).” Id. at ¶ 21. We therefore reversed the defendant’s conviction for
possession of crack cocaine. Id.
{¶ 32} Pearson attempts to analogize Yslas by claiming that the indictment in the
instant case charged him with an offense that does not exist under the Ohio Revised
Code. Specifically, Pearson claims that under R.C. 2937.99, the offense of failure to
appear as required by recognizance includes the essential element of being placed on an
own-recognizance bond, an element that Pearson claims was absent from the indictment.
For this reason, Pearson claims that the indictment charged him with a non-existent
offense, which resulted in plain error that warrants the reversal of his conviction. We
disagree.
{¶ 33} Although we agree with Pearson’s claim that R.C. 2937.99 only criminalizes
a defendant’s failure to appear when he is released on his own recognizance per R.C.
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2937.29, see State v. Fusik, 4th Dist. Athens No. 04CA28, 2005-Ohio-1056, ¶ 11; we
nevertheless find that Pearson’s indictment provided sufficient notice of the own-
recognizance element and thus correctly charged Pearson with an existing offense under
R.C. 2937.99. We reach this conclusion because Pearson’s indictment charged him with
violating R.C. 2937.29 and R.C. 2937.99(A)/(B). R.C. 2937.29 provides that an “accused
may be released on his own recognizance” and that “a failure to appear as required by
such recognizance shall constitute an offense subject to the penalty provided in [R.C.
2937.99].” Pursuant to R.C. 2937.99(A), “[n]o person shall fail to appear as required
after having been released pursuant to [R.C. 2937.29]” and “[w]hoever violates this
section is guilty of failure to appear and shall be punished as set forth in division (B) or
(C) of this section.” Section (B) of the statute then goes on to provide that: “If the release
was in connection with a felony charge or pending appeal after conviction of a felony,
failure to appear is a felony of the fourth degree.” R.C. 2937.99(B).
{¶ 34} Pearson’s indictment closely tracks the foregoing statutory language and
charged the failure-to-appear offense as a fourth-degree felony. The indictment
specifically alleged that Pearson “did fail to appear as required by recognizance and the
release was in connection with a felony charge or pending appeal after conviction of a
felony.” Although the indictment did not specifically include the phrase “own
recognizance,” it did refer to a violation of R.C. 2937.29, which pertains solely to releasing
an accused on his own recognizance. Given the reference to R.C. 2937.29, the
indictment sufficiently included the own-recognizance element and fairly informed
Pearson of the charged offense. See State v. Cassel, 2016-Ohio-3479,
66 N.E.3d 318,
¶ 19 (2d Dist.), citing State v. Buehner,
110 Ohio St.3d 403,
2006-Ohio-4707, 853 N.E.2d
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1162, ¶ 9 and State v. Horner, 126 Ohio St.3d 466,
2010-Ohio-3830,
935 N.E.2d 26, ¶ 45
(“An indictment is sufficient if it contains the elements of the offense charged, fairly informs
the defendant of the charge, and enables the defendant to plead an acquittal or conviction
in bar of future prosecutions for the same offense.”). Therefore, unlike in Yslas,
Pearson’s indictment charged him with a valid statutory offense.
{¶ 35} For the foregoing reasons, we are not convinced that the indictment
contained an obvious error for purposes of the plain-error analysis. Even if the absence
of the phrase “own recognizance” in the indictment had been an obvious error, unlike
Yslas, that error did not affect the identity of the charged offense. Moreover, Pearson
failed to argue, let alone demonstrate, that he would not have entered his guilty plea had
the phrase “own recognizance” appeared in the indictment. Therefore, Pearson did not
satisfy his burden to establish that the outcome of the proceeding would have been
different but for the alleged error. Accordingly, for all the foregoing reasons, Pearson
has failed to establish plain error for purposes of reversing his conviction.
{¶ 36} Pearson’s second assignment of error is overruled.
Conclusion
{¶ 37} Having overruled both of Pearson’s assignments of error, the judgment of
the trial court is affirmed.
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TUCKER, P.J. and DONOVAN, J., concur.
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Copies sent to:
Samantha B. Whetherholt
Travis Dunnington
Hon. Nick A. Selvaggio
