[Cite as State v. Weaver,
2025-Ohio-3094.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO :
: C.A. No. 2025-CA-5
Appellee :
: Trial Court Case No. 25-CRB-001-0038
v. :
: (Criminal Appeal from Municipal Court)
BENJAMIN DAVID WEAVER :
: FINAL JUDGMENT ENTRY &
Appellant : OPINION
:
...........
Pursuant to the opinion of this court rendered on August 29, 2025, the judgment of
the trial court is reversed and the matter is remanded for further proceedings.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
RONALD C. LEWIS, JUDGE
EPLEY, P.J., and TUCKER, J., concur.
-2-
OPINION
DARKE C.A. No. 2025-CA-5
CHRISTOPHER BAZELEY, Attorney for Appellant
JOSHUA M. KUNKEL, Attorney for Appellee
LEWIS, J.
{¶ 1} Defendant-Appellant Benjamin David Weaver appeals from a judgment of the
Darke County Municipal Court convicting him of one count of domestic violence following
his guilty plea and denying his presentence motion to withdraw his guilty plea. For the
following reasons, we reverse the judgment of the trial court and remand for the trial court
to vacate Weaver’s plea and conduct further proceedings.
I. Procedural History
{¶ 2} On February 12, 2025, a complaint filed in the Darke County Municipal Court
charged Weaver with one count of domestic violence (threats), in violation of R.C.
2919.25(C), a misdemeanor of the fourth degree. Weaver appeared via video from the jail
for his initial appearance that same day. He was not represented by counsel. Weaver
entered a guilty plea to the offense as charged and signed a waiver of his constitutional
rights, which was filed the next day. The trial court accepted his plea, found him guilty, and
then read a statement of facts into the record. Because the victim was not present, a
sentencing hearing was scheduled for a later date.
{¶ 3} On February 14, 2025, Weaver filed an application for appointed counsel. He
also filed an inmate request form, which stated as follows:
Type of Request: CHANGE OF PLEA
Details or Reasons: NOT COMFORTABLE WITH PLEA,
STATEMENT/POLICE REPORT READ AFTER HEARING AND SIGNING.
-3-
{¶ 4} On February 17, 2025, Weaver appeared in court without counsel for
sentencing. The trial court denied Weaver’s oral request to dismiss his case and request
to change his plea. The trial court sentenced Weaver to two years of community control
sanctions, including a sentence of 30 days in jail with credit for 7 days served and the
remaining 23 days suspended on condition of compliance with his community control
sanctions and no further violations of law. The trial court ordered that Weaver report for a
mental health evaluation, comply with any recommendations, and file a release of
information. The trial court further imposed a $150 fine and court costs.
{¶ 5} Weaver filed another inmate request form, dated February 14, 2025, on
February 18, 2025, which stated as follows:
Type of Request: PUBLIC DEFENSE AND LEGAL AID: CHANGE PLEA NOT
GUILTY.
Details or Reason: NO EVIDENCE AND NEVER GOT TO MY STORY. NO
HAMMER NO [SIC] OR CONTACT WITH MOM OR THREATENING IN ANY
SHAPE OR FORM! DISHEARTENING. PLEASE GET ME OUT. I WANT
NOTHING BUT THE BEST FOR EVERYONE BUT WILL NOT RISK JOB
LOSS.
{¶ 6} Nothing in the record indicates whether the February 18, 2025 filing was
considered or addressed by the court prior to Weaver’s filing a timely notice of appeal.
Weaver raises the following four assignments of error on appeal:
WEAVER’S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY,
AND INTELLIGENTLY GIVEN BECAUSE THE TRIAL COURT FAILED TO
ADVISE HIM OF HIS CONSTITUTIONAL RIGHTS AS REQUIRED BY
CRIM.R. 5 AND CRIM.R. 10.
-4-
THE TRIAL COURT ERRED WHEN IT IMPOSED A SENTENCE OF
INCARCERATION DESPITE WEAVER NOT HAVING COUNSEL AND NOT
WAIVING THE SAME IN CONTRAVENTION OF SCOTT V. ILLINOIS (1979),
440 U.S. 367.
THE TRIAL COURT ERRED WHEN IT OVERRULED WEAVER’S
MOTION TO WITHDRAW HIS GUILTY PLEA.
THE TRIAL COURT ERRED WHEN IT ALLOWED THE VICTIM TO
DICTATE THE TERMS OF WEAVER’S SENTENCE.
Weaver’s first assignment of error is dispositive of this appeal.
II. Initial Appearance and Plea
{¶ 7} In his first assignment of error, Weaver contends that his guilty plea was not
knowingly, intelligently, and voluntarily entered because the trial court failed to advise him
of his rights as required by Crim.R. 5 and 10, which resulted in prejudicial error. Weaver
claims that the court failed to advise him of his “right to retain counsel, have counsel
appointed, could obtain a continuance to obtain counsel, remain silent, or to file a written
demand for a jury trial.” Appellant’s Brief, p. 4. The State responds that the trial court
substantially complied with Crim.R. 11 and Weaver’s written waiver demonstrated he
understood his rights and voluntarily waived them.
{¶ 8} “Crim.R. 5(A) establishes a mandatory recitation of specific rights which must
be presented to a criminal defendant upon an initial appearance before the trial court.”
State v. Rupp, 2009-Ohio-6494, ¶ 9 (6th Dist.). Crim.R. 5(A) states, in relevant part, as
follows:
When a defendant first appears before a judge or magistrate, the judge
or magistrate shall permit the accused or the accused’s counsel to read the
-5-
complaint or a copy thereof, and shall inform the defendant:
(1) Of the nature of the charge against the defendant;
(2) That the defendant has a right to counsel and the right to a
reasonable continuance in the proceedings to secure counsel, and,
pursuant to Crim.R. 44, the right to have counsel assigned without cost
if the defendant is unable to employ counsel;
(3) That the defendant need make no statement and any statement
made may be used against the defendant;
...
(5) Of the right, where appropriate, to jury trial and the necessity to
make demand therefor in petty offense cases.
...
In misdemeanor cases the defendant may be called upon to plead at
the initial appearance. Where the defendant enters a plea the procedure
established by Crim.R. 10 and Crim.R. 11 applies.
{¶ 9} Crim.R. 10 requires a similar explanation of rights when a defendant who is not
represented by counsel is brought before the court and called upon to enter a plea at the
time of arraignment. Under Crim.R. 10(C), “the judge or magistrate shall cause the
defendant to be informed and shall determine that the defendant understands all of the
following:”
(1) The defendant has a right to retain counsel even if the defendant intends
to plead guilty, and has a right to a reasonable continuance in the proceedings
to secure counsel.
(2) The defendant has a right to counsel, and the right to a reasonable
-6-
continuance in the proceeding to secure counsel, and, pursuant to Crim.R. 44,
the right to have counsel assigned without cost if the defendant is unable to
employ counsel.
(3) The defendant has a right to bail, if the offense is bailable.
(4) The defendant need make no statement at any point in the proceeding, but
any statement made can and may be used against the defendant.
{¶ 10} “A misdemeanor defendant may be asked to plead at an initial appearance;
however, the court must comply with the procedures set forth in Crim.R. 10, governing
arraignments, and Crim.R. 11, governing pleas.” State v. Owens, 2010-Ohio-564, ¶ 22 (2d
Dist.), citing Crim.R. 5(A). Crim.R. 11 outlines the procedures courts must follow when
accepting pleas, and those procedures vary depending on whether the offense is a
misdemeanor that is a petty offense, a misdemeanor that is a serious offense, or a felony.
State v. Howard,
2018-Ohio-5160, ¶ 17 (2d Dist.), citing State v. Jones,
2007-Ohio-6093,
¶ 11, and State v. Hall,
2012-Ohio-2539, ¶ 18 (2d Dist.). A “serious offense” means “any
felony, and any misdemeanor for which the penalty prescribed by law includes confinement
for more than six months.” Crim.R. 2(C). A “petty offense” is “a misdemeanor other than
a serious offense.” Crim.R. 2(D).
{¶ 11} Weaver pleaded guilty to one count of domestic violence in violation of R.C.
2919.25(C), a misdemeanor of the fourth degree. The maximum jail term for a fourth-
degree misdemeanor is 30 days. R.C. 2929.24(A)(4). Accordingly, Weaver’s offense
constituted a “petty offense” under Crim.R. 2(D). Furthermore, because Weaver was
charged with a fourth-degree misdemeanor, which included the possibility of imprisonment,
he was entitled to a trial by jury. R.C. 2945.17.
-7-
{¶ 12} For pleas involving petty offenses, a trial court is required to inform the
defendant only of the effect of the specific plea being entered and must use the appropriate
language under Crim.R. 11(B). Jones at ¶ 25; Crim.R. 11(E). The supreme court has held
that, to satisfy the requirement of informing a defendant of “the effect of the plea” before
accepting a guilty plea to a petty misdemeanor, the court is required to inform the defendant
that the plea is a complete admission of guilt.
Id. The notification may be given either
orally or in writing. Id. at ¶ 51.
{¶ 13} The trial court informed Weaver of the nature of the charges, the maximum
possible penalty, and the effect of a guilty plea. However, Weaver was not represented by
counsel when he entered his guilty plea at his initial appearance. The trial court did not
inform Weaver of his right to counsel, of the right to a reasonable continuance in the
proceedings to secure counsel, or of the right to have counsel assigned without cost if he
was unable to hire counsel. Crim.R. 5(A)(2); Crim.R. 10(C)(1) and (2). Nor was Weaver
informed that he need not make any statement and that any statement made could be used
against him. Crim.R. 5(A)(3); Crim.R. 10(C)(4). Although the trial court advised Weaver
he had a right to a jury trial, it did not inform Weaver of the need to make a demand for a
jury trial if a jury was desired. Crim.R. 5(A)(5); R.C. 2938.04. The trial court also failed to
comply with Crim.R. 10(A), which provides that at the arraignment, the defendant “shall be
given a copy of the indictment, information, or complaint, or shall acknowledge receipt
thereof, before being called upon to plead.” (Emphasis added.)
{¶ 14} The State asserts that because Weaver signed the waiver form, which
included notification of a defendant’s constitutional right to counsel and the right to have
appointed counsel if indigent, there was substantial compliance with the notifications, such
-8-
that Weaver knowingly, intelligently, and voluntarily entered his guilty plea. We do not
agree.
{¶ 15} The plain language of Crim.R. 5 provides that, “[w]hen a defendant first
appears before a judge or magistrate, the judge or magistrate . . . shall inform the defendant”
of the information required under the rule. “Compliance with Crim.R. 5 is mandatory. If
the state fails to effectively communicate a criminal defendant's rights, it deprives him of the
ability to make a knowing and voluntary waiver of them.” State v. Gearig, 2010-Ohio-939,
¶ 11 (6th Dist.). “[A] trial court's failure to inform an accused of his or her rights as required
by Crim.R. 5 constitutes prejudicial error.” State v. Bates,
2006-Ohio-3777, ¶ 22 (11th
Dist.), citing State v. Fonseca,
124 Ohio App.3d 231, 234 (11th Dist. 1997) and State v. Orr,
26 Ohio App.3d 24, 25 (11th Dist. 1985). Furthermore, pursuant to Crim.R. 10(C), which
applies if a defendant pleads guilty at an initial appearance, the court shall cause the
defendant to be informed of the enumerated rights and determine that the defendant
understands all of them. “Failure to comply with Crim.R. 10(C) constitutes ‘prejudicial
error.’ ”
Gearig at ¶ 16, quoting
Orr at 25.
{¶ 16} The transcript reveals no meaningful dialogue between the court and Weaver
concerning his rights under Crim.R. 5(A) and 10(C) or about the waiver he signed. Weaver
was handed a waiver form while at the jail and informed that if the form met Weaver’s
approval, he should sign it. Before signing the form, Weaver asked whether it would affect
his tenant rights with the victim (his mother, with whom he lived). The trial court declined
to advise him of any tenant law and asked if Weaver had any questions about the form he
signed. Weaver asked about the difference between a guilty and no contest plea. The
trial court informed him of the difference between the pleas. No additional discussion about
the waiver form occurred.
-9-
{¶ 17} “[A] defendant's written waiver does not absolve the trial court from its
responsibility to explain the fundamental rights and constitutional guarantees available to
defendant.” State v. Schniable, 1997 WL 177848, *3 (7th Dist. Apr. 9, 1997), citing State
v. Luhrs,
69 Ohio App.3d 731, 735 (9th Dist. 1990). Moreover, while the waiver form
addressed some of Weaver’s constitutional rights, it did not advise him of all his rights under
Crim.R. 5(A) and 10(C) and was not a sufficient substitute for doing so. Here, the trial court
failed to advise Weaver of nearly all of his rights under Crim.R. 5(A) and 10(C), which
resulted in prejudice. “The test for prejudice is ‘whether the plea would have otherwise
been made.’ ” Jones,
2007-Ohio-6093, at ¶ 52, quoting State v. Nero,
56 Ohio St.3d 106,
108 (1990).
{¶ 18} Weaver appeared at his initial hearing without counsel; he then entered a guilty
plea and gave up all his rights without a full explanation and verification of his understanding
of his rights. In an attempt to reverse course, Weaver filed an affidavit of indigency to apply
for appointed counsel, requested a dismissal, and attempted to withdraw his plea prior to
sentencing. Weaver was not granted counsel, his motions were denied, and he was
sentenced to jail time, albeit with the majority of the time suspended. When he attempted
to explain his reason for seeking to dismiss his case, Weaver tried to say there was
insufficient evidence but was cut off by the court. Under these circumstances, we conclude
that Weaver has demonstrated prejudice.
{¶ 19} Accordingly, Weaver’s first assignment of error is sustained.
III. Remaining Assignments of error
{¶ 20} Because of our resolution of Weaver’s first assignment of error, we need not
address Weaver’s second, third, and fourth assignments of error. App.R. 12(A)(1)(c).
-10-
IV. Conclusion
{¶ 21} Having sustained Weaver’s first assignment of error, we reverse the trial
court’s judgment and remand for it to vacate Weaver’s plea and conduct further proceedings.
.............
EPLEY, P.J., and TUCKER, J., concur.
