[Cite as State v. Black,
2025-Ohio-5261.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-25-001
Appellee Trial Court No. 24 CR 856
v.
Delvon Black DECISION AND JUDGMENT
Appellant Decided: November 21, 2025
…
Beth Tischler, Sandusky County Prosecutor, and
Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.
Joseph Sobecki, for appellant.
…
DUHART, J.
{¶ 1} Appellant, Delvon Black, appeals from a judgment entered by the Sandusky
County Court of Common Pleas following his guilty plea to one count of trespass in a
habitation when a person is present or likely to be present and two counts of receiving
stolen property. For the reasons that follow, the trial court’s judgment is affirmed.
Statement of the Case and of the Facts
{¶ 2} Black was indicted on September 6, 2024, with five charges related to events
that took place on August 18 and 19, 2024, when Black entered the homes of two others
and came into possession of three bank cards belonging to one of the homeowners. The
charges included two counts of trespass in a habitation when a person is present or likely
to be present, in violation of R.C. 2911.12(B) and (E), felonies of the fourth degree, and
three counts of receiving stolen property, in violation of R.C. 2913.51(A) and (C),
felonies of the fifth degree.
{¶ 3} On October 8, 2024, Black entered a plea of guilty to one count of trespass
in a habitation when a person is present or likely to be present and two counts of
receiving stolen property. In exchange for the guilty plea, the State agreed to dismiss the
remaining two counts at sentencing and not to object to a community control sanction.
{¶ 4} During the Crim.R. 11 colloquy, the trial court relevantly advised Black as
follows:
[T]here are Constitutional rights you’re giving up here today by entering
these pleas. You’re giving up your presumption of innocence; your right to
a jury or a court trial; your right to present evidence in your favor at the
trial; and to use the Court’s subpoena power; your right to confront
witnesses that would testify against you at the trial and have the attorney
question or cross-examine them; your right to require the State to prove
your guilt beyond a reasonable doubt, and, lastly, your right to remain
silent.
{¶ 5} The court asked Black whether he understood that a plea of guilty was a
complete admission of his guilt, and Black answered in the affirmative. Black also
2.
affirmed that he was making the plea of his own free will and choice, that he was not
under the influence of drugs or alcohol, and that nothing was impairing his ability to
understand the proceedings. The trial court inquired as to whether Black was satisfied
with his attorney’s representation, and Black answered yes. When the trial court advised
Black that it was not required to follow the State’s sentencing recommendation and
could, instead, impose a prison sentence, Black indicated that he understood. And when
the trial court asked Black whether he had any questions for his attorney, and Black
answered, “No. No, he’s – he’s pointed me pretty great.” Finally, the trial court asked
Black whether he had understood “everything up to this point,” and Black answered,
“Yes, sir.” The trial court, after finding that Black had been advised of his rights and had
made a knowing, voluntary and intelligent waiver of those rights, accepted Black’s pleas
and found him guilty.
{¶ 6} Following the colloquy, the trial court was notified that Cuyahoga County
had recently indicted Black on five counts of drug possession and, further, had issued a
capias warrant for his arrest. Upon receiving this information, the trial court explained to
Black that he would likely be transported back to Cuyahoga County, but also that he was
expected to return to Sandusky County for his sentencing hearing. The court further
instructed Black that if he were to be incarcerated in Cuyahoga County, he would need to
keep in touch with his defense counsel and the trial court so that they could arrange for
his transportation back to Sandusky County for sentencing. Black indicated that he
understood.
3.
{¶ 7} Black’s sentencing hearing was scheduled for November 26, 2024. Black
failed to appear for sentencing on this date, and the trial court issued a capias warrant for
his arrest. Black was later arrested, and his sentencing hearing was held on December 19,
2024. At the hearing, defense counsel requested that Black be sentenced to community
control, and the State stated that it did not object to this sentence. Addressing the trial
court, Black explained his reason for missing his original court date, as follows:
[Recovery Resources] didn’t have a date set up, so I did take the next time I
could, and due to me missing court, I tried to come to court the next day. I
apologize for what happened. It was all my fault. I should have looked
deeper into it, but the mistakes were made. I was incarcerated for six days
there. The charges there were dropped, and then I was moved out here,
because I constantly told them every day that I needed to come out here,
and due to them not actually looking up, you know, different areas and
stuff, they – they looked up Sandusky, and they said that it is fine, we’re
going to send you out there, and then I am blessed today to actually be in
the courtroom, even though it’s been 21 days after the fact of may warrant
was issued, so, thank you.
{¶ 8} Regarding Black’s criminal history, the trial court noted Black’s “robust
record,” which included several probation violations and convictions for drug offenses
with respect to which Black was provided opportunities for intervention and treatment.
Among Black’s convictions was a 2021 conviction for attempted drug possession out of
Cuyahoga County, a felony of the fourth degree.
{¶ 9} The trial court found that a community control sanction was not required,
due to Black’s prior conviction for a felony offense, and that the targeted community
alternatives to prison (T-CAP) program for prisoners applied. Black was sentenced to 180
4.
days in jail on each count, with the sentences for each count to run concurrently, and the
remaining charges were dismissed. Black timely filed an appeal.
Assignments of Error
{¶ 10} On appeal, Black asserts the following assignments of error:
I. The trial court failed to ensure that the defendant fully
understood all the rights he was giving up in waiving
his right to a trial, and thus defendant’s guilty plea was
not knowingly and voluntarily made.
II. The trial court erred because it lacked discretion to
sentence the defendant to a jail term that was not part
of a community control residential sanction.
Law and Analysis
First Assignment of Error
{¶ 11} Black argues in his first assignment of error that his guilty plea was not
knowingly and voluntarily made, because the trial court “failed to ensure” that he
understood the rights he was giving up in waiving his right to trial.
{¶ 12} “Due process requires that a defendant’s plea be made knowingly,
intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.” State v. Bishop,
2018-Ohio-5132, ¶ 10 (lead opinion), citing State v. Clark,
2008-Ohio-3748, ¶ 25.
“Crim.R. 11(C)(2) governs the process that a trial court must follow before accepting a
plea of guilty to a felony charge.” State v. Brinkman,
2021-Ohio-2473, ¶ 11, citing
Bishop at ¶ 11. Relevant here, Crim.R. 11(C)(2)(c) requires the court to advise the
defendant that he has certain constitutional rights and to ascertain whether the defendant
5.
understands that by pleading guilty he is waiving those rights. The court shall not accept
a plea of guilty without first doing the following:
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.
Id. “Crim.R. 11(C)(2)(c) requires the court to communicate this information so that the
defendant can make an intelligent and voluntary decision whether to plead guilty.”
Brinkman at 11, citing State v. Miller,
2020-Ohio-1420, ¶ 18, citing State v. Veney, 2008-
Ohio-5200, ¶ 18.
{¶ 13} “[A] trial court is required to strictly comply with Crim.R. 11(C)(2)(c)
and…its failure to do so invalidates the plea.” Id. at ¶ 12, citing Veney at ¶ 32.”
“Although the trial court may vary slightly from the literal wording of the rule in the
colloquy, the court cannot simply rely on other sources to convey these rights to the
defendant.” Veney at ¶ 29. A failure to notify the defendant of his constitutional rights
under Crim.R. 11(C)(2)(c) amounts to plain error that cannot be deemed harmless.
Brinkman at ¶ 12, citing
Miller at ¶ 13, 16.
{¶ 14} When an appellant seeks to vacate his plea on appeal because the plea was
not entered in a knowing, intelligent, and voluntary matter due to the trial court’s failure
to comply with Crim.R. 11, “‘“the questions to be answered are simply: (1) has the trial
court complied with the relevant provision of the rule? (2) if the court has not complied
6.
fully with the rule, is the purported failure of a type that excuses [an appellant] from the
burden of demonstrating prejudice? And (3) if a showing of prejudice is required, has the
[appellant] met that burden?”’” State v. Johnson, 2023-Ohio-2008, ¶ 14 (6th Dist.),
quoting State v. Morgan,
2021-Ohio-3996, ¶ 15 (6th Dist.), quoting State v. Dangler,
2020-Ohio-2765, ¶ 17. “Unless the trial court fails to explain a constitutional right in
Crim.R. (C)(2)(c) or completely fails to comply with a portion of Crim.R. 11(C) – e.g.,
by failing to mention mandatory postrelease control, State v. Sarkozy,
2008-Ohio-509, ¶
22 – the appellant is required to show prejudice to have his plea vacated.”
Id., citing
Dangler at ¶ 13-16. “The test for prejudice is ‘“whether the plea would have otherwise
been made.”’” Id. at ¶ 17, quoting
Dangler at ¶ 16, quoting State v. Nero,
56 Ohio St.3d
106, 108 (1990).
{¶ 15} In challenging the validity of his plea, Black complains that the trial court
only “summarily set forth those constitutional rights which [Black] would be waiving by
pleading guilty,” and, further, “made no inquiry of any kind as to whether the defendant
understood those rights.” Although Black criticizes the trial court’s explanation of the
rights as being the “barest recitation” of those rights, his primary complaint is that there
was “not even the most remote inquiry as to whether [he] understood any or all of it.”
{¶ 16} The Ohio Supreme Court in State v. Ballard, 66 Ohio St.2d 473 (1981)
explained that “the best method of informing a defendant of his constitutional rights is to
use the language contained in Crim.R. 11(C), stopping after each right and asking the
defendant whether he understands the right and knows that he is waiving it by pleading
7.
guilty.”
Id. at 479. Nevertheless, “the failure to so proceed will not necessarily invalidate
a plea.”
Id.
{¶ 17} Because “the purpose of Crim.R. 11 is to convey to the defendant certain
information so that he or she can make a voluntary and intelligent decision whether to
plead guilty,” “‘the focus, upon review, is whether the record shows that the trial court
explained or referred to the right[s] in a manner reasonably intelligible to [the]
defendant.’” State v. Reyes, 2021-Ohio-3599, ¶ 22 (8th Dist.), quoting
Ballard at 479.
“Providing an explanation of the rights that will be forgone upon pleading guilty satisfies
the general purpose of Crim.R. 11(C).’”
Id., quoting State v. Donaldson, 2018-Ohio-
4872, ¶ 10. That said, at least one Ohio appellate court has held that a trial court should,
“at the very least,” “ensure the defendant’s understanding of the relevant rights and
associated penalties once at the conclusion of its colloquy.” Id. at ¶ 23.
{¶ 18} Here, the trial court’s recitation of rights included all the rights set forth in
Crim.R. 11(C)(2)(c) and used language closely approximating that contained in the rule.
As such, we cannot say that the trial court failed to explain the waiver of Black’s rights in
a reasonably intelligent manner.
{¶ 19} In contradiction to Black’s claim that the trial court made “no inquiry of
any kind” as to whether Black understood his Crim.R. 11(C)(2)(c) rights, the record
reveals that the trial court asked Black generally, at the conclusion of the plea colloquy,
whether he had understood everything up to that point -- and Black responded that he
had. Although the trial court did not stop after explaining each right to ask if Black
8.
subjectively understood the right as just explained, Black did not express any confusion
during the plea hearing and pleaded guilty in accordance with the terms of the plea
agreement. See State v. Eggers,
2013-Ohio-3174, ¶ 16 (2d Dist.) (“By answering ‘guilty,’
[the defendant] implied that he understood that a guilty plea would waive his rights and
that he was pleading guilty.”). Under these facts, we are unable to conclude that the
structure of the trial court’s plea colloquy invalidated Black’s guilty pleas. Accordingly,
Black’s first assignment of error is found not well-taken.
Second Assignment of Error
{¶ 20} While Black admits that “[t]here is no question that the trial court had
discretion to sentence him up to 180-days in jail…as part of a community control
sanction” under R.C. 2929.16(A)(2), 1 he claims in his second assignment of error that his
sentence was contrary to law because the trial court lacked the discretion under R.C.
2929.13(B)(1)(a) to sentence him to a 180-day jail term that was not part of a community
control residential sanction.
1
R.C. 2929.16, which deals with “community residential sanctions,” states in pertinent
part:
(A) Except as provided in this division, the court imposing a sentence for a
felony upon an offender who is not required to serve a mandatory prison
term may impose any community residential sanction or combination of
community residential sanctions under this section….Community
residential sanctions include, but are not limited to, the following:
…
(2) Except as otherwise provided in division (A)(3) or (6) of this section
and subject to division (D) of this section, a term of up to six months in jail.
9.
{¶ 21} R.C. 2929.13(B)(1) has two parts. The first part, set forth at R.C.
2929.13(B)(1)(a), requires a determination as to whether community control is
mandatory. The court must impose community control for a qualifying fourth or fifth
degree felony if three conditions are met, one of which is that the offender was not
previously convicted of, or did not plead guilty to, a felony. R.C. 2929.13(B)(1)(a)(i).
Black does not dispute that he was convicted of a felony. Therefore, community control
was not mandatory in this case. Consistent with this determination, the record makes
clear that a prison term, rather than community control, was, in fact, imposed.
Specifically, the trial court found that “R.C. 2929.34(B)(3)(c-d) TCAP does apply,” and
ordered that “any term of incarceration imposed on the defendant be served at a local
detention facility.”2
{¶ 22} The second part of R.C. 2929.13(B)(1), set forth at R.C. 2929.13(B)(1)(b),
enumerates a list of specific circumstances under which a court, in its discretion, may
impose a prison term for fourth and fifth degree felonies that are not offenses of violence
or other qualifying assaults. We note that when imposing a prison sentence pursuant to
R.C. 2929.13(B)(1)(b), a trial court is not required to make specific findings. State v.
Miller, 2025-Ohio-991, ¶ 13, citing State v. Benson,
2019-Ohio-4635, ¶ 13 (7th Dist.).
And in this case, the trial court did not make any such findings.
2
R.C. 2929.34(B)(3)(c)(i) and (ii) make clear that the T-CAP program applies, in
particular, to offenders, such as Black, who are sentenced to a prison term for a fourth or
fifth degree felony.
10.
{¶ 23} On appeal, the State argues that two of the enumerated circumstances
apply: (1) “The offender violated a term of the conditions of bond as set by the court.”
R.C. 2929.13(B)(1)(b)(iii); and (2) “The offender committed the offense while under a
community control sanction, while on probation, or while released from custody on a
bond or personal recognizance.” R.C. 2929.13(B)(1)(b)(x).
{¶ 24} First, the State asserts that Black violated his bond in this case by failing to
appear for the scheduled sentencing hearing on November 26, 2024. And we agree.
{¶ 25} Arguing against this conclusion, Black claims that we should disregard his
failure to appear at sentencing as a valid basis for the imposition of a prison term under
R.C. 2929.13(B)(1)(b), because he “could have been in custody in Cuyahoga County” on
November 26, 2024. (Emphasis added.) We reject this argument because nothing in the
record establishes that Black actually was in Cuyahoga Court custody, or was otherwise
unavailable for sentencing, on November 26, 2024. To the contrary, Black admitted at his
sentencing on December 19, 2024, his “mistake” in failing to appear on the earlier date.
{¶ 26} As an additional basis for imposing a prison term under R.C.
2929.13(B)(1)(b), the State asserts that Black committed the instant offenses while under
a community control sanction -- specifically “probation” -- that was imposed in an
earlier, Stark County, case. Indeed, the record shows that on August 14, 2024, the Stark
County Court of Common Pleas sentenced Black to 90 days in jail, with 90 days
suspended on conditions of good behavior, and 50 hours of community service, for the
11.
offense of criminal damaging or endangering, a misdemeanor of the second degree. He
was also ordered to pay costs and fines.
{¶ 27} Again, Black urges us to reject this as a basis for sentencing him under
R.C. 2929.13(B)(1)(b). First, Black disputes the State’s assertion that the Stark County
court sentenced him to “probation,” per se. He also claims that because the jail sentence
was suspended at the time that Black committed the instant offenses, “it cannot be said
that Black was under a misdemeanor residential sanction from the Stark Court at the time
the [instant offenses] were committed.”
{¶ 28} At the outset of our analysis, we reject Black’s argument that he was not
effectively on some form of probation. The Supreme Court of Ohio in State v. Heinz,
2016-Ohio-2814, defines “probation” as “a period of time served during suspension of a
sentence.” Id. at ¶ 14 (recognizing that effective July 1, 1996, the General Assembly
enacted Am.Sub.S.B. No. 2, 146 Laws, Part IV, 7136, to revise Ohio’s felony sentencing
statutes, and among other changes, “community control replaced probation as a possible
sentence under Ohio’s felony sentencing law.” (Emphasis in original)). Probation, is “an
act of grace allowing a convict to go free on conditions and as a contract for leniency
between the offender and the sentencing judge;” it is not a remission of penalty, as “the
convict remains under the supervision of the court and subject to any restraints and
conditions imposed, and a breach of those conditions permits imposition of the suspended
prison sentence. Id. at ¶ 11. Because Black was under a 90-day suspended jail sentence
12.
“on conditions of good behavior,” he might well be said to have committed the instant
offenses while he was on probation.
{¶ 29} Even assuming Black was not probation, however, he was clearly under
several forms of community control. As set forth by the Fourth District Court of Appeals
in State v. Lucas, 2017-Ohio-7663 (4th Dist.):
R.C. 2929.25(A)(1) describes two ways that a trial court may impose
community control sanctions in a misdemeanor case. First, ‘R.C.
2929.25(A)(1)(a) gives the court the option of directly imposing
community control sanctions.’ State v. Russell, 2011-Ohio-1181, ¶ 27.
Second, ‘R.C. 2929.25(A)(1)(b)…allows the trial court to impose a jail
term, suspend the jail term, and then place the offender on community
control.’ Id.
Id. at ¶ 7.
{¶ 30} “Community control sanction” is defined, in relevant part, at R.C.
2929.01(E) as “a sanction that is not a jail term and that is described in section 2929.26,
2929.27, or 2929.28 of the Revised Code.3 R.C. 2929.27 provides in relevant part that
“[n]onresidential sanctions include, but are not limited to, “[a] term of community service
of up to… two hundred hours for a misdemeanor of the second, third, or fourth degree.”
And R.C. 2929.28 provides that financial sanctions include costs and fines.
{¶ 31} Although it is undisputed that Black was sentenced to 50 hours of
community service and ordered to pay costs and fines, Black argues that were he to have
3
We note that “community control sanction” includes probation only if the sentence
involved was imposed for a felony that was committed prior to July 1, 1996, or if the
sentence involved was imposed for a misdemeanor that was committed prior to January
1, 2004. R.C. 2929.01(E).
13.
completed his Stark County community service and paid his costs before August 18,
2024, he would not have been under a community control sanction from the Stark County
Court on August 18, 2024. While Black’s statement may well be true, he admits that the
record does not indicate either that he performed his community service or that he paid
his fines and costs. Nor does he even allege that he did. Instead, he argues only that “[i]f
the trial court based its discretion to sentence [him] on R.C. 2929.13(B)(1)(x), based on
the assumption that [he] was under a community control sanction from the Stark Court,
the trial court committed error because this is an assumption not supported by the
record.” We reject Black’s argument inasmuch as the record that is before the court
establishes only that community control sanctions were imposed on Black (less than a
week) before the offenses were committed in the instant case, without any suggestion or
indication that those sanctions had yet been satisfied. Absent any evidence or allegation
to the contrary, it would not have been error for the court to find on this record that Black
remained under community control sanctions at the time the offenses in this case were
committed.
{¶ 32} Because we agree with the State that Black committed the offenses in this
case while under several community control sanctions -- and quite possibly while under
probation -- in the Stark County case, we find his second assignment of error not well-
taken.
14.
Conclusion
{¶ 33} The judgment of the Sandusky County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J.
JUDGE
Myron C. Duhart, J.
JUDGE
Charles E. Sulek, P.J.
CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
15.
