[Cite as State v. Earl,
2024-Ohio-5682.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellant, : CASE NO. 23CA19
v. :
GEORGE M. EARL, : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
_________________________________________________________________
APPEARANCES:
Karyn Justice, Portsmouth, Ohio, for appellant1.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and
Andrea M. Kratzenberg, Assistant Prosecuting Attorney, Ironton,
Ohio, for appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-26-24
ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment of conviction and sentence. George Earl, defendant
below and appellant herein, assigns the following error for review:
ASSIGNMENT OF ERROR:
“MR. EARL DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY ENTER A GUILTY PLEA, IN VIOLATION
OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
1
Different counsel represented appellant during the trial
court proceedings.
LAWRENCE, 23CA19 2
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE
OF THE OHIO CONSTITUTION.”
{¶2} In September 2021, a Lawrence County Grand Jury returned
an indictment in Case Number 21-CR-347 that charged appellant with
one count of burglary in violation of R.C. 2911.12(A)(2), a second-
degree felony. Appellant entered a not guilty plea. In a separate
case related to appellant’s removal and destruction of an ankle
monitor, Case Number 22-CR-198, appellant entered not guilty pleas
to that indictment (tampering with evidence and vandalism).
{¶3} At an August 24, 2022 pretrial hearing for both cases,
appellee tendered an 8-year prison sentence final offer in 21-CR-
347 (burglary) and agreed not to oppose a judicial release request
after appellant served six years. In 22-CR-198 (tampering with
evidence and vandalism), appellee tendered a 3-year prison sentence
final offer and agreed not to oppose a judicial release request
after appellant served two years. Appellant rejected the offers.
{¶4} On August 31, 2022, the trial court held a combined plea
and sentencing hearing and appellee recited the parties’ plea
agreement. The trial court conducted a Crim.R. 11 colloquy and
advised appellant of his rights and the effects of his decision to
plead guilty. The court reviewed the signed plea form and jury
waiver, reviewed the facts and charges in each case, and asked
appellant if any drugs, alcohol, or mind-altering substances
LAWRENCE, 23CA19 3
influenced him. The court advised and reviewed with appellant the
constitutional rights he waived with his plea, including (1) the
right to a jury trial, (2) the right to confront one’s accusers,
(3) the right to compulsory process to obtain witnesses, (4) the
right to require appellee to prove guilt beyond a reasonable doubt,
and (5) the privilege against compulsory self-incrimination. The
court also explained the mandatory nature of appellant’s prison
term, advised him of post-release control, and reminded appellant
that the parties’ sentencing recommendation did not control the
court’s sentencing decision. Appellant expressed his understanding
and agreement at each stage of the plea colloquy and affirmed his
execution of the written plea form. The court emphasized, “If you
have any questions during the course of the proceeding, let me
know. We will go off record and you can ask your attorney any
question that you might have. Do you understand?” Appellant
replied, “Yes, ma’am.” Later, before the court accepted
appellant’s plea, the court said, “And prior to entering those
pleas of guilty did you have the opportunity to discuss the same
with your attorney?” Appellant replied, “Yes, Your Honor.”
{¶5} After appellant changed his plea to guilty in both cases,
the trial court proceeded to the sentencing portion of the hearing.
The court provided appellant an allocution, at which, inter alia,
he said, “I honestly did not go in [the] home.” The trial court
LAWRENCE, 23CA19 4
stated, “I appreciate your apology, sir.” The court then weighed
the purposes and principles of sentencing in R.C. 2929.11, the
seriousness and recidivism factors in R.C. 2929.12, and the
guidance in R.C. 2929.13, and adopted the joint recommendation from
the negotiated plea.
{¶6} The trial court sentenced appellant to (1) serve a
minimum 8-year prison term on Count One in 21-CR-347, (2) serve a
36-month term on Count One in 22-CR-198, (3) serve a 12-month term
on Count Two in 22-CR-198, (4) pay $600 restitution, and (5) pay
costs. The court further noted a rebuttable presumption of release
after serving the minimum stated prison term, or early presumptive
release date, whichever is earlier. The court emphasized that
appellee agreed not to oppose judicial release at the 6-year mark
if appellant had a clean institutional report. However, the court
noted that it still maintains the sole discretion to grant judicial
release. This appeal followed.
I.
{¶7} In his sole assignment of error, appellant asserts that
he did not enter a knowing, intelligent, and voluntary plea.
Specifically, appellant contends that the trial court failed to
ascertain that appellant understood the consequences of his plea
because at his sentencing hearing he indicated that he did not
enter the victim’s house in contradiction of the element of
LAWRENCE, 23CA19 5
“trespass in an occupied structure . . . that is the permanent or
temporary habitation of any person. . .” Appellee, however,
contends that the trial court fully informed appellant of the
elements of burglary prior to his plea and that he readily
acknowledged and admitted to having committed the allegations
contained in the indictments.
{¶8} “Because a no-contest or guilty plea involves a waiver of
constitutional rights, a defendant's decision to enter a plea must
be knowing, intelligent, and voluntary.” Crim.R. 11, State v.
Dangler, 2020-Ohio-2765, ¶ 10, citing Parke v. Raley,
506 U.S. 20,
28-29 (1992). Thus, if a defendant did not knowingly,
intelligently, and voluntarily enter a plea, enforcement of that
plea is unconstitutional. Id.; State v. Leib,
2024-Ohio-1081, ¶ 13
(4th Dist.). In general, appellate courts apply a de novo standard
of review when evaluating a plea's compliance with Crim.R. 11(C).
State v. Nero,
56 Ohio St.3d 106, 108-109 (1990). Moreover,
evidence of a written waiver form signed by the accused constitutes
strong proof of a valid waiver. State v. Clark,
38 Ohio St.3d 252,
261 (1988).
{¶9} In the case sub judice, our review of the trial court
proceeding reveals that appellant signed a written plea of guilty
that explicitly acknowledged, among other things, that (1) his
attorney explained his constitutional rights and consequences of
LAWRENCE, 23CA19 6
his plea, (2) he had confidence in his attorney, (3) he understood
the elements contained in the indictment, nature of the charges and
penalties, (4) he made the pleas of his own free will, (5) he had
no questions to ask the court before entering the plea, (6) neither
he nor his attorney had any competent evidence to offer to show
that he was not guilty of the offense charged, and (7) he and his
attorney believed that a factual basis for the plea exists.
{¶10} Moreover, at the plea hearing, in addition to reviewing
appellant’s constitutional rights that he waived, the trial court
reviewed the four-page plea agreement, verified appellant’s
signature, thoroughly reviewed the indictments, and read the
statutory language of each offense, including the offense of
burglary. In particular, the trial court asked, “Do you continue
to wish to enter pleas of guilty as to all charges in both case
numbers?” Appellant replied, “Yes ma’am.” The court asked, “Do
you have any questions before we proceed?” Appellant replied, “No
ma’am.” The court stated, “Okay. If you have any questions during
the course of the proceeding, let me know. We will go off the
record and you can ask your attorney any question that you might
have. Do you understand?” Appellant replied, “Yes ma’am.”
{¶11} After the trial court advised appellant of the
constitutional rights he waived by his plea, one by one, and he
stated that he understood each one. After the court advised
LAWRENCE, 23CA19 7
appellant of various post-release control consequences, the court
asked, “Do you understand that if you plea[d] guilty to these
offenses, that you are making a complete admission you committed
the allegations contained in the indictments?” Appellant replied,
“Yes, Your Honor.” After the court advised appellant that it could
proceed directly with judgment and sentencing after the plea, and
that the parties’ sentencing recommendations do not bind the court,
the court asked, “Mr. Smith, how does your client wish to plea[d]
as to Count One of the indictment in Case No. 21-CR-347. . .”
Appellant’s counsel replied, “Guilty to all counts, Your Honor.”
The court then asked appellant, “And Mr. Earl . . . How do you wish
to plea[d] to as to Count One of the indictment in Case No. 21-CR-
347 [burglary]?” Appellant replied, “Guilty, Your Honor.”
{¶12} The trial court asked yet again, “One last time, are
these pleas of guilty of your own free will and accord,” to which
appellant replied, “Yes, Your Honor.” The court asked if appellant
had the opportunity to discuss the plea with his attorney before he
entered it and he replied, “Yes, Your Honor.” At this juncture the
court accepted appellant’s guilty pleas and stated, “Moving on to
sentencing, does the prosecution and defense waive the issuance of
a PSI?” Both agreed. The court then asked appellant if he wished
to speak before the court imposed sentence. Appellant stated:
LAWRENCE, 23CA19 8
I would like to apologize. It’s hard to do. Give me a
minute ma’am. That day I had a bad tooth and uh, I’m
sorry, this is hard to say. A friend of mine gave me a,
it’s called a Roxy, I took it. And uh I come through your
yard and there was a mower sitting there outside your door
that had some luggage on it. I honestly did not go in
[the] home, and I shouldn’t have touched that, and I
thought something looked wrong and I seen the door open
and window broke there, and I should have called the law.
Instead of calling the law, I took the stuff. It was wrong
and I shouldn’t have done that. And I do apologize ma’am.
And (unintelligible) really dumb what I done. And I hope
you forgive me and I’m sorry. And ma’am, I do apologize
for breaking that monitor. I shouldn’t have done that.
That was, that was wrong. You all trusted me with
something, and I turned around and pretty much stabbed you
in the back with it. I shouldn’t have done that. I
apologize.
{¶13} Despite appellant’s acknowledgments, both in court and in
his written plea, he now appears to argue that he did not
understand the elements of the offense or that he asserted his
innocence, given his post-plea statement, “I honestly did not go in
[the] home.” We note that the trial court did not take the
opportunity to comment on appellant’s statements or ask follow-up
questions.
{¶14} As noted above, “a defendant’s plea must be entered
knowingly, intelligently, and voluntarily in order for the plea to
be constitutional under the United States and Ohio Constitutions.”
State v. Engle, 74 Ohio St.3d 525, 527 (1996). “To ensure the
finality of a proper guilty plea, Crim.R. 11(C) provides a
framework for informing a defendant of his or her constitutional
LAWRENCE, 23CA19 9
rights.” State v. Ballard,
66 Ohio St.2d 473, 479 (1981). Under
Crim.R. 11(C)(2), in felony cases, “the court may refuse to accept
a plea of guilty . . . , and shall not accept a plea of guilty . .
. without first addressing the defendant personally . . . and doing
all of the following:”
(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.
{¶15} The Supreme Court of Ohio has instructed that the
underlying purpose of Crim.R. 11(C) is to convey certain
information to allow the defendant to make a voluntary and
intelligent decision whether to plead guilty. Ballard at 479-480;
State v. Woodworth,
2024-Ohio-2756, ¶ 12 (6th Dist.). In the
present case, appellant does not challenge the trial court's
compliance with Crim.R. 11, but rather argues that the court’s
LAWRENCE, 23CA19 10
compliance with the rule is not sufficient because his sentencing
statement to the court indicated that he did not understand the
nature of the charges to which he entered his plea, or that he
decided to assert his innocence in spite of his prior plea.
{¶16} Crim.R. 11(C) does not require the trial court to explain
the elements of the offense before accepting a plea. In fact, as
the Sixth District recently observed, the Supreme Court of Ohio has
held “that trial courts need not engage in a detailed recitation of
the elements of a charge before accepting a plea.” Woodworth at ¶
14, citing State v. Fitzpatrick,
2004-Ohio-3167, ¶ 57 (“the
Constitution does not require that a trial court explain the
elements of the charge, at least where the record contains a
representation by defense counsel that the nature of the offense
has been explained to the accused.”). See also State v. Vialva,
2017-Ohio-1279, ¶ 9 (8th Dist.)(“[C]ourts are not required to
explain the elements of each offense ….”); State v. Giovanni,
2009-Ohio-3333, ¶ 19 (7th Dist.)(“[T]he trial court has no
obligation to explain the elements of the charge.”). However, we
observe that in the case at bar the trial court fully explained the
elements of burglary: “George M. Earl on or about September 5,
2021, did, by force, stealth or deception trespass in an occupied
structure or in a separately secured or separately occupied portion
of an occupied structure. . .”
LAWRENCE, 23CA19 11
{¶17} Appellant contends that, because he “maintained his
innocence while also desiring to enter a guilty plea,” the trial
court “was obliged to follow the enhanced procedure announced in
North Carolina v. Alford, 400 U.S. 24 (1970).” When a defendant
enters an Alford plea, the defendant maintains innocence but
consents to punishment: “[a]n individual accused of crime may
voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable
to admit his participation in the acts constituting the crime.”
North Carolina v. Alford,
400 U.S. 25, 37 (1970). The Second
District explained the process in State v. Padgett,
67 Ohio App.3d
332, 338-339 (2d Dist.1990):
Because an Alford plea involves a rational calculation that
is significantly different from the calculation made by a
defendant who admits he is guilty, the obligation of the
trial court with respect to the taking of an Alford plea
is correspondingly different. The trial judge must
ascertain that notwithstanding the defendant’s
protestations of innocence, he has made a rational
calculation that it is in his best interest to accept the
plea bargain offered by the prosecutor.
. . .
Where the defendant interjects protestations of innocence
into the plea proceedings, and fails to recant those
protestations of innocence, the trial court must determine
that the defendant has made a rational calculation to plead
guilty notwithstanding his belief that he is innocent.
This requires, at a minimum, inquiry of the defendant
concerning his reasons for deciding to plead guilty
notwithstanding his protestations of innocence; it may
require, in addition, inquiry concerning the state’s
LAWRENCE, 23CA19 12
evidence in order to determine that the likelihood of the
defendant’s being convicted of offenses of equal or greater
magnitude than the offenses to which he is pleading guilty
is great enough to warrant an intelligent decision to plead
guilty.
{¶18} Other courts have held that when a written affirmative
assertion of an Alford notation exists on a plea form, and some
affirmation to the trial court of an Alford plea exists, a more
detailed Crim.R. 11 colloquy is required to inquire about the
reason for the Alford plea. State v. Evans, 2021-Ohio-829, ¶ 26
(5th Dist.), citing State v. Morrison,
2014-Ohio-688, ¶ 13 citing
State v. Hayes,
101 Ohio App.3d 73 (3rd Dist.1998).
{¶19} In Evans, the trial court also held a combined change of
plea and sentencing hearing. After the plea colloquy, the court
found Evans’ guilty plea to be “freely, voluntarily, and
understandingly” made, and the court found Evans guilty based on
the facts the prosecutor read. Id. at ¶ 10. After the trial court
sentenced Evans, he made a statement where he denied that he stole
the truck in question and claimed on appeal that the trial court
should have rejected his guilty plea. Id. at ¶ 14, 19. The Fifth
District emphasized that to determine if Evans made protestations
of innocence, the court must review the record, including the plea
form and the plea hearing transcript. Id. at ¶ 27. The Fifth
District observed that Evans’ plea form contained no written
LAWRENCE, 23CA19 13
assertion of an Alford notation. Further, the court concluded that
no affirmation of an Alford plea to the trial court occurred at the
plea hearing. Id. The Fifth District further noted that Evans did
not protest his innocence until after the trial court rendered his
sentence. Thus, the court affirmed. Id. at ¶ 28. Similarly, in
the case sub judice, our review of the record reveals no Alford
assertion on the written plea agreement and no Alford affirmation
during the trial court’s combined plea and sentencing hearing.
{¶20} Again, appellant argues that his single statement at the
conclusion of the lengthy change of plea and sentencing hearing
constituted a protestation of innocence: “I honestly did not go in
[the] home, and I shouldn’t have touched that, and I thought
something looked wrong and I seen the door open and window broke
there, and I should have called the law. Instead of calling the
law, I took the stuff.” Appellant cites this court’s decision in
State v. Wright, 1995 WL 368319 (4th Dist. Jun. 19, 1995) in
support. Wright faced trafficking in marijuana and aggravated
robbery charges. After plea negotiations and the State agreed to
dismiss a gun specification and recommend a lenient sentence, at
the plea hearing Wright pleaded guilty to all charges. However,
two days later Wright wrote a letter to the trial court and
requested to withdraw his guilty plea. The trial court
acknowledged that it received the letter and considered it a motion
[Cite as State v. Earl,
2024-Ohio-5682.]
to withdraw Wright’s guilty plea, but the letter did not appear in
the record and the trial court did not respond to it. When Wright
appeared at his sentencing hearing, the court had concluded nearly
all of the sentencing procedure when it offered appellant
allocution. Id. at *1-2. At that point, Wright asked the court if
it had received his letter. After the court acknowledged receipt,
Wright stated, “I would like to withdraw my plea and have my
charges separated and take them to trial.” The court asked for the
reason, and Wright replied, “Because I’m not guilty of one robbery
and marijuana charge.” Id. The court affirmed in part and
reversed in part and concluded that, “[a]t a minimum, appellant is
entitled to explain why he entered a guilty plea originally and the
nature of the evidence that supports his claim of innocence.” Id.
at *6.
{¶21} We, however, believe that Wright is inapplicable to the
case sub judice. Wright submitted a letter and requested to
withdraw his plea, which did not occur in the case at bar.
Further, Wright made an oral motion to withdraw his guilty plea,
which also did not occur in the case at bar. Moreover, as noted
above, appellant in the case at bar made these statements at the
sentencing portion of the hearing, after he entered his plea, after
the trial court accepted the plea, and after the court found him
guilty. See Woodworth at ¶ 16.
[Cite as State v. Earl,
2024-Ohio-5682.]
In Woodworth, the Sixth District summarized:
Ohio courts have recognized that a trial court is not
required to measure a claim of innocence against a
willingness to waive trial - as may be required in
accepting a plea under North Carolina v. Alford - where
protestations of innocence occur after the court has
accepted a plea and the defendant has not sought to
withdraw his plea. State v. Alvelo, 2017-Ohio-742, ¶ 22-
27 (8th Dist.)(finding that court had no duty to inquire
into defendant’s reason for pleading guilty where
protestations of innocence occurred at sentencing and
defendant did not move to withdraw his guilty plea); State
v. Bartley, 2001 WL 604219, *5 (10th Dist. Jun. 5,
2001)(noting that it was only at sentencing that defendant
denied the requisite mental state for the offense, and
commenting that he did not ask to withdraw his guilty
plea); State v. Millhouse, 2002-Ohio-2255, ¶ 17 (8th
Dist.)(observing that defendant never expressed desire to
withdraw guilty pleas even though at sentencing, he denied
facts supporting conviction).
Id. at ¶ 17.
{¶22} Thus, the Sixth District concluded that Woodworth made no
protestations of innocence at the plea hearing that may have
warranted additional scrutiny by the trial court. Id.
{¶23} Finally, in State v. Sheets, 2023-Ohio-2562 (4th Dist.),
we considered a similar case in which a defendant at a combined
plea and sentencing hearing claimed that her statement made during
allocution, which denied knowledge of her husband’s intention to
murder the victims, indicated her protestation of innocence in
connection with her plea or her confusion regarding the nature of
the offenses to which she pleaded guilty. Id. at ¶ 18. We
concluded that Sheets entered a knowing, intelligent, and voluntary
[Cite as State v. Earl,
2024-Ohio-5682.]
guilty plea and the trial court did not err when it accepted the
pleas. Id. at ¶ 31. We noted that “the plea portion of the
hearing had been definitively concluded at the time Sheets made her
statement,” and we found “no alleged protestation of innocence made
until after the pleas had already been accepted and the court had
moved on to sentencing.” Id. at ¶ 24.
{¶24} Similarly, after our review in the case sub judice we
conclude that (1) appellant entered a knowing, intelligent, and
voluntary guilty plea, and (2) appellant’s guilty plea precluded
his alleged challenge to the factual basis for his conviction.
Here, the trial court conducted a lengthy change of plea hearing to
ensure that appellant fully understood the nature of the offense
and effect of his plea. At the conclusion of the sentencing
portion of the hearing, appellant made a statement that, inter
alia, he did not enter the home. Although it would have been
helpful if the trial court made a specific inquiry and
clarification concerning appellant’s statement, it appears that
appellant offered this last minute assertion to cast his conduct in
the best possible light and garner sympathy or favorable treatment
from the court prior to the pronouncement of his sentence. While
we do not question appellant’s desire to characterize his conduct
in a manner that he believes may somewhat lessen his culpability,
his statement is not a protestation of innocence that would cause
[Cite as State v. Earl, 2024-Ohio-5682.]
the court to question the factual underpinning of the charge.
Here, the court provided appellant ample opportunity to express any
disagreement with any element of any of the charged offenses.
{¶25} Therefore, after our review we conclude that appellant’s
post-plea assertions did not affect the voluntariness of his guilty
plea. Accordingly, for the foregoing reasons, we overrule
appellant’s assignment of error, and we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
[Cite as State v. Earl, 2024-Ohio-5682.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover of appellant the 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 Lawrence County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:______________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
[Cite as State v. Earl, 2024-Ohio-5682.]
commences from the date of filing with the clerk.
