[Cite as State v. Hake,
2025-Ohio-4622.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2025-01-001
: OPINION AND
- vs - JUDGMENT ENTRY
: 10/6/2025
NATHANIEL W. HAKE, :
Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 24 CR 14244
Eric Marit, Preble County Prosecuting Attorney, and Kathryn M. West, Assistant
Prosecuting Attorney, for appellee.
Alana Van Gundy, for appellant.
____________
OPINION
M. POWELL, J.
{¶ 1} Appellant, Nathaniel Hake, appeals his conviction and sentence in the
Preble County Court of Common Pleas for passing bad checks.
Preble CA2025-01-001
{¶ 2} On February 5, 2024, appellant was indicted on three counts of passing bad
checks in violation of R.C. 2913.11(B). Count 1, a fourth-degree felony, concerned three
checks written to Norman and Gene Gabbard as payments upon a land installment
contract in the aggregate amount of $9,996.48.1 Although appellant had made good on
these checks to the Gabbards prior to being indicted, he had failed to do so within ten
days of receiving notice that the checks had been dishonored as provided by R.C.
2913.11(C)(2). Count 2, also a fourth-degree felony, concerned a $95,300 check written
to CAT Ohio. Count 3, a third-degree felony, concerned three checks written to CAT Ohio,
totaling $233,738.
{¶ 3} Appellant retained attorney Jeremy Tomb to represent him. Appellant was
arraigned on February 9, 2024, and entered not guilty pleas. On June 14, 2024, Tomb
moved to withdraw as counsel on the basis that appellant was not adhering to the attorney
fee agreement and was not communicating with counsel. A hearing was held on the
motion during which appellant informed the trial court he intended to hire new counsel.
By entry of June 21, 2024, the trial court granted Tomb's motion to withdraw as counsel.
The entry scheduled a hearing "on the status of defense counsel" for July 10, 2024, and
memorialized the trial court's advisement to appellant that "if he did not hire counsel by
July 10, 2024, the Court would appoint an attorney to represent him so that the case could
move forward without unnecessary delay." When appellant did not retain counsel by the
July 10, 2024 status hearing, the trial court appointed counsel for appellant.
{¶ 4} Appellant moved to dismiss Counts 2 and 3, claiming that Preble County
was not the proper venue for those charges. A hearing on the motion was scheduled for
August 20, 2024, and was subsequently rescheduled twice. On September 9, 2024, while
1. The indictment refers to the Gabbards as Norman Ray and Gene Gabbard. However, Gene Gabbard,
a woman, is referred to as Jean Gabbard at the sentencing hearing.
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the motion to dismiss Counts 2 and 3 remained pending, appellant appeared before the
trial court and pled guilty to Count 1, an amended charge of fifth-degree felony attempted
passing of bad checks, and Count 2 as charged. In consideration for the guilty plea, Count
3 was dismissed. The trial court accepted appellant's guilty plea and scheduled the matter
for sentencing on December 18, 2024. At sentencing, the trial court sentenced appellant
to 12 months in prison on Count 1 and 18 months in prison on Count 2, and ordered that
the prison terms be served consecutively.
{¶ 5} Appellant now appeals, raising four assignments of error. The third
assignment of error will be addressed last.
{¶ 6} Assignment of Error No. 1:
THE COURT ERRED WHEN IT DID NOT DISMISS
CHARGES TWO AND THREE BASED UPON LACK OF
VENUE.
{¶ 7} Appellant argues that the trial court erred as a matter of law because it "did
not determine whether it had proper venue–and thus jurisdiction" over Counts 2 and 3,
and did not rule on his motion to dismiss. It is well established that when a trial court fails
to rule on a motion, the appellate court will presume the trial court overruled the motion.
State v. Young, 2006-Ohio-1784, ¶ 15 (12th Dist.). An appellate court applies a de novo
standard of review when reviewing a trial court's decision regarding a motion to dismiss.
State v. Myers,
2019-Ohio-4914, ¶ 10 (12th Dist.).
{¶ 8} "Venue commonly refers to the appropriate place of trial for a criminal
prosecution within a state." State v. Bussell, 2025-Ohio-699, ¶ 8 (12th Dist.). Venue is not
jurisdictional and is also not a material element of the offense. State v. Jordan, 2015-
Ohio-575, ¶ 29 (12th Dist.). By pleading guilty, a defendant admits to committing the
offense as charged.
Id. Moreover, by pleading guilty, a defendant waives the opportunity
to challenge the factual issue of venue.
Id.
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{¶ 9} As appellant pled guilty to Count 2 (and Count 1) and Count 3 was
dismissed, the State was not required to prove venue. Rather, appellant's guilty plea
admitted that venue was proper. The plea hearing as well as the written waiver and plea
agreement signed by appellant indicate that appellant was aware that by pleading guilty
he was admitting to committing the offenses and consequently that the State was not
required to prove his guilt beyond a reasonable doubt. Therefore, appellant has waived
the ability to challenge the factual issue of venue. Id. at ¶ 30.
{¶ 10} Appellant's first assignment of error is overruled.
{¶ 11} Assignment of Error No. 2:
THE COURT VIOLATED MR. HAKE'S SIXTH AMENDMENT
RIGHTS WHEN IT DENIED MR. HAKE COUNSEL OF HIS
CHOICE.
{¶ 12} Appellant argues that the trial court violated his right to counsel of his
choice, thereby committing structural error and requiring an automatic reversal, when the
"court improperly denied [him] the capability to find retained counsel" and instead
appointed counsel on July 10, 2024.
{¶ 13} The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a criminal defendant the right to counsel. State ex rel. Boyd v. Tone, 2023-
Ohio-3832, ¶ 12; see also Ohio Const., art. I, § 10. An "element of this right is the right of
a defendant who does not require appointed counsel to choose who will represent him."
United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). If a defendant has the ability
to retain a qualified attorney, the Sixth Amendment generally protects his choice of
counsel. Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 625 (1989). A court
commits structural error when it wrongfully denies a defendant his counsel of choice, thus
a defendant need not demonstrate further prejudice.
Gonzalez-Lopez at 150.
{¶ 14} Upon reviewing the record, we find that the trial court did not violate
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appellant's right to counsel of his choice when it appointed an attorney for appellant on
July 10, 2024. On June 21, 2024, the trial court held a hearing on appellant's former
attorney's motion to withdraw as counsel. During the hearing, appellant informed the trial
court that he intended to hire new counsel and that he had three appointments with
potential counsel. The trial court advised appellant that a hearing "on the status of defense
counsel" would be held on July 10, 2024, that such hearing would be vacated only if a
retained attorney would file a notice of appearance on appellant's behalf prior to that time,
and that the court would appoint counsel if appellant did not hire counsel by July 10, 2024.
The trial court's advisement was memorialized in its June 21, 2024 entry, including that
"if [appellant] did not hire counsel by July 10, 2024, the Court would appoint an attorney
to represent him so that the case could move forward without unnecessary delay." When
appellant appeared on July 10, 2024, having not retained counsel, the trial court
appointed counsel to represent him. However, in doing so, the court stated that appellant
could still hire his own attorney, and that it would be inclined to grant a continuance if one
was asked by his potential newly hired attorney.
{¶ 15} The record plainly shows that the trial court did not, at any time, deny
appellant the right to hire counsel of his own choosing. The trial court appointed counsel
to keep the case moving forward but still permitted appellant to obtain counsel of his
choice. A trial court has wide latitude in balancing the right to counsel of choice against
the demands of its calendar. Gonzalez-Lopez, 548 U.S. at 152, citing Morris v. Slappy,
461 U.S. 1, 11-12 (1983). Appellant simply did not hire counsel before or after the July
10, 2024 hearing, and then proceeded to enter a guilty plea while represented by
appointed counsel.
{¶ 16} Appellant's second assignment of error is overruled.
{¶ 17} Assignment of Error No. 4:
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MR. HAKE'S PLEA WAS ILLUSORY AND THEREFORE
INVALID UNDER OHIO LAW.
{¶ 18} Appellant argues that the plea agreement was illusory because it was based
on a statement by the trial court that was invalid and unenforceable, thus rendering the
plea unknowing and involuntary.
{¶ 19} Generally, a plea bargain is contractual in nature and subject to contract-
law standards. State v. Butts, 112 Ohio App.3d 683, 686 (8th Dist. 2001). A contract is
illusory "when by its terms the promisor retains an unlimited right to determine the nature
or extent of his performance; the unlimited right, in effect, destroys his promise and thus
makes it merely illusory." Century 21 Am. Landmark, Inc. v. McIntyre,
68 Ohio App.2d
126, 129-130 (1st Dist. 1980). "'Where an illusory promise is made, that is, a promise
merely in form, but in actuality not promising anything, it cannot serve as consideration.
Even if it were recognized by law, it would impose no obligation, since the promisor always
has it within his power to keep his promise and yet escape performance of anything
detrimental to himself or beneficial to the promise.'" State v. Johnson,
2023-Ohio-2282, ¶
47 (7th Dist.), quoting 3 Williston on Contracts, Section 7:7 (4th Ed. 2022).
{¶ 20} The plea hearing was held on September 9, 2024. The plea agreement was
that Count 1 would be amended to an attempted passing bad checks, reducing it from a
fourth-degree felony to a fifth-degree felony, and that in consideration for appellant's guilty
plea to the amended Count 1 and to Count 2 as charged, Count 3, a third-degree felony,
would be dismissed. The State further agreed to dismiss Count 2 if appellant paid $95,300
in restitution to Ohio CAT by the date of sentencing. At the conclusion of the plea hearing
the trial court noted that trial counsel had requested that sentencing be set out a bit further
than customary to provide appellant with additional time to obtain the funds to make
restitution on Count 2. The State had no objection and the trial court scheduled sentencing
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for December 18, 2024.
{¶ 21} Appellant argues that the State's promise to dismiss Count 2 was illusory
because the trial court advised him during the plea hearing that it could sentence him that
day, thus making it impossible to pay restitution on Count 2, a term of the plea agreement.
Appellant also asserts that he was not advised of the date for when the restitution had to
be paid, whom to pay the restitution to, or how to pay the restitution.
{¶ 22} The record belies appellant's assertion. The written waiver and plea
agreement signed by appellant on September 9, 2024, explicitly states, "Defendant to pay
restitution of $95,300 to Ohio CAT prior to sentencing. . . . If Defendant pays restitution
to Ohio CAT prior to sentencing, State will move to dismiss count 2 prior to sentencing."
At the conclusion of the plea hearing, the trial court scheduled sentencing for December
18, 2024. The last page of the written waiver and plea agreement signed by appellant
clearly states, "This matter is hereby scheduled for final disposition on the 18 day of Dec.
2024 at 1:00 o'clock p.m." As appellant had business dealings with Ohio CAT, it is
reasonable to assume he knew where to send or how to pay the restitution. Thus,
appellant was clearly advised he was to pay $95,300 in restitution to Ohio CAT before
December 18, 2024.
{¶ 23} In support of his argument that the plea agreement was illusory, appellant
cites State v. Aponte, 145 Ohio App.3d 607 (10th Dist. 2001). In that case, the defendant
entered into a plea agreement in which he agreed to provide the State with information in
exchange for being allowed to withdraw his guilty plea at a later time. The Tenth District
Court of Appeals found that the State's promise to allow the defendant to withdraw his
guilty plea if he complied with the plea agreement was an illusory promise because the
State had no authority to fulfill that promise as the withdrawal of a guilty plea lies solely
within the discretion of the trial court.
Id. at 613-614.
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{¶ 24} Aponte does not apply here. The record reflects that the trial court approved
the term of the plea agreement for potential dismissal of Count 2 when it extended the
time for sentencing specifically to allow appellant time to obtain the funds to make
restitution. That the trial court advised appellant it could sentence him at the conclusion
of the plea hearing does not make the State's promise to dismiss Count 2 illusory. Crim.R.
11(C)(2)(b) provides that a trial court must inform the defendant, and determine that the
defendant understands, that "the court, upon acceptance of the plea, may proceed with
judgment and sentence." State v. Bowling, 2025-Ohio-2272, ¶ 41 (12th Dist.). Not only
did the trial court comply with Crim.R. 11(C)(2)(b), but it also informed appellant he would
be sentenced at a later date: "I do not intend to proceed with sentencing today. There will
be a pre-sentence investigation and we will set this for final disposition at a future date.
However, I am still obligated to advise you that the Court has the authority to proceed
immediately with judgment and sentence when you enter your plea, do you understand
that?" Appellant replied affirmatively.
{¶ 25} In consideration for appellant's guilty plea, the State reduced a fourth-
degree felony to a fifth-degree felony (Count 1), dismissed the most serious offense
(Count 3, a third-degree felony), and provided appellant the opportunity to obtain
dismissal of Count 2, a fourth-degree felony, by making restitution by the sentencing date.
Contrary to appellant's assertion, there was no "illusion of [a] false opportunity" and the
plea reflected a bargained-for exchange. His plea agreement was therefore not illusory.
{¶ 26} Appellant's fourth assignment of error is overruled.
{¶ 27} Assignment of Error No. 3:
THE COURT ERRED BY SENTENCING MR. HAKE TO AN
EXCESSIVE SENTENCE.
{¶ 28} Appellant was sentenced to maximum consecutive prison terms on Counts
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1 and 2. Appellant argues that this sentence is excessive when considering (1) he made
restitution on the Count 1 offense, (2) the Count 2 offense was improperly venued, (3) the
offenses could have been merged under R.C. 2913.11(D) because the checks were
allegedly written within a period of 180 consecutive days, (4) he is not a violent offender,
and (5) he expressed deep remorse. Appellant does not challenge the consecutive nature
of the sentence but focuses solely on the R.C. 2929.11 purposes and principles of felony
sentencing and the standard of felony sentencing review under R.C. 2953.08(G)(2). We
decline to address appellant's assertion regarding Count 2 because as we found under
his first assignment of error, appellant's guilty plea admitted that venue was proper.
{¶ 29} A felony sentence is reviewed under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 1. Pursuant to R.C. 2953.08(G)(2),
an appellate court can modify or vacate a sentence only if it clearly and convincingly finds
either of the following: (a) the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14,
or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; or
(b) the sentence is otherwise contrary to law. A sentence is not clearly and convincingly
contrary to law where the trial court considers the principles and purposes of R.C.
2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease
control, and sentences the defendant within the permissible statutory range. State v.
Venters,
2025-Ohio-3111, ¶ 53 (12th Dist.).
{¶ 30} "R.C. 2953.08(G)(2) does not permit an appellate court to conduct an
independent review of a trial court's sentencing findings under R.C. 2929.12 or its
adherence to the purposes of felony sentencing under R.C. 2929.11." State v. Bryant,
2022-Ohio-1878, ¶ 21, citing State v. Jones,
2020-Ohio-6729, ¶ 41-42. Nothing within the
statute permits an appellate court to "independently weigh the evidence in the record and
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substitute its judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12." Jones at ¶ 42.
{¶ 31} We find that appellant's sentence is not contrary to law. The imposition of a
12-month prison term and 18-month prison term falls within the permissible statutory
range for a fifth-degree felony offense and fourth-degree felony offense, respectively; see
R.C. 2929.14(A)(4), (5); and a two-year optional term of postrelease control was properly
imposed for the offenses. See R.C. 2967.28. In imposing appellant's sentence, the trial
court noted, both at the sentencing hearing and in its sentencing entry, that it had
considered the principles and purposes of felony sentencing under R.C. 2929.11 as well
as the seriousness and recidivism factors set forth in R.C. 2929.12. Though appellant
believes a shorter prison term is a more appropriate sentence, we are precluded from
second-guessing or independently weighing the evidence and substituting our judgment
for that of the trial court. See Jones at ¶ 42. Furthermore, nothing in the record indicates
that appellant's sentence was based on impermissible considerations, that is,
considerations that fall outside those set forth in R.C. 2929.11 and 2929.12. Rather, the
record reflects that when sentencing appellant the trial court focused on appellant's
criminal record which consisted of theft and fraud offenses and passing bad checks, most
of which were felonies.
{¶ 32} As for appellant's argument that the offenses could have been merged
under R.C. 2913.11(D) because the checks were allegedly written within a period of 180
consecutive days, we find it lacks merit. R.C. 2913.11(D) provides that "[i]n determining
the value of the payment for purposes of division (E) of this section, the court may
aggregate all checks and other negotiable instruments that the offender issued or
transferred or caused to be issued or transferred in violation of division (A) of this section
within a period of one hundred eighty consecutive days." "Nowhere in R.C. 2913.11 does
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it mandate that the state is bound or required to aggregate all checks. Aggregation is
permissible to bump individual misdemeanors to a felony and is discretionary. Appellant's
acts of passing multiple bad checks is not a 'single crime,' but separate crimes relative to
each separate victim." State v. Joseph, 2017-Ohio-7309, ¶ 18 (5th Dist.).
{¶ 33} Appellant's third assignment of error is overruled.
{¶ 34} Judgment affirmed.
BYRNE, P.J., and SIEBERT, J., concur.
JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is
the order of this court that the judgment or final order appealed from be, and the same
hereby is, affirmed.
It is further ordered that a mandate be sent to the Preble County Court of Common
Pleas for execution upon this judgment and that a certified copy of this Opinion and
Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Matthew R. Byrne, Presiding Judge
/s/ Mike Powell, Judge
/s/ Melena S. Siebert, Judge
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