[Cite as State v. Huffman,
2024-Ohio-5273.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Andrew J. King, J.
-vs- :
:
JASON HUFFMAN : Case No. 24CA00012
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Mount Vernon
Municipal Court, Case No.
23CRB00505
JUDGMENT: Plea Vacated and Remanded
DATE OF JUDGMENT: November 4, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEVEN THOMAS D. POTTS TODD W. BARSTOW
5 North Gay Street 261 West Johnstown Road
Suite 222 Suite 204
Mount Vernon, OH 43050 Columbus, OH 43230
Knox County, Case No. 24CA00012 2
King, J.
{¶ 1} Defendant-Appellant, Jason Huffman, appeals his April 9, 2024 conviction
in the Mount Vernon Municipal Court of Knox County, Ohio. Plaintiff-Appellee is the State
of Ohio. We vacate the plea.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 25, 2023, Huffman was charged with two counts of domestic
violence in violation of R.C. 2919.25.
{¶ 3} On February 27, 2024, Huffman pled to reduced charges: guilty to one count
of criminal mischief in violation of R.C. 2909.07 (first degree misdemeanor) and no
contest to attempted assault in violation of R.C. 2903.13 and 2923.02 (second degree
misdemeanor). He stipulated to a finding of guilty on the attempted assault charge. By
journal entry filed April 9, 2024, the trial court sentenced Huffman to an aggregate
sentence of 270 days, 242 days suspended, and placed him on two years of community
control. Huffman was ordered to serve three days in jail and the remainder of his jail time
was stayed.
{¶ 4} Huffman filed an appeal with the following assignments of error:
I
{¶ 5} "THE TRIAL COURT ERRED IN ACCEPTING APPELLANT'S PLEAS OF
GUILTY AND NO CONTEST TO PETTY OFFENSES WITHOUT INFORMING HIM OF
THE EFFECT OF THOSE PLEAS AND WITHOUT A PROPER EXPLANATION OF THE
CIRCUMSTANCES."
II
Knox County, Case No. 24CA00012 3
{¶ 6} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
NOT PERMITTING HIM TO ALLOCUTE AT THE SENTENCING HEARING."
I
{¶ 7} In his first assignment of error, Huffman claims in part that the trial court
erred in accepting his pleas without informing him of the effect of those pleas. We agree.
{¶ 8} Huffman was charged with misdemeanors involving petty offenses. Crim.R.
2(D). Crim.R. 11(E) states: "In misdemeanor cases involving petty offenses the court
may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without
first informing the defendant of the effect of the plea of guilty, no contest, and not guilty."
See State v. Jones, 2007-Ohio-6093, ¶ 21 ("whenever accepting a plea of guilty or no
contest, the trial court is required to inform a defendant of the effect of the plea"). A guilty
plea "is a complete admission of the defendant's guilt." Crim.R. 11(B)(1). A plea of no
contest "is an admission of the truth of the facts alleged in the indictment, information, or
complaint, and the plea or admission shall not be used against the defendant in any
subsequent civil or criminal proceeding." Crim.R. 11(B)(2).
{¶ 9} In Jones, the Court held, "to satisfy the requirement of informing a defendant
of the effect of a plea, a trial court must inform the defendant of the appropriate language
under Crim.R. 11(B)." Jones at ¶ 25. Because Jones was pleading guilty to a
misdemeanor for a petty offense, the trial court was required to inform him that his plea
of guilty was a complete admission of guilt. Crim.R. 11(B)(1). Likewise, on a no contest
plea, a trial court must inform the defendant that the plea is an admission of the truth of
the facts as alleged and the plea shall not be used against the defendant in any
subsequent proceedings. Crim.R. 11(B)(2).
Knox County, Case No. 24CA00012 4
{¶ 10} Huffman argues the trial court did not inform him of the effect of his pleas.
A review of the record confirms this. The entire transcript of the plea hearing consists of
three pages. First the prosecutor recited its recommendation to amend the charges.
February 27, 2024 T. at 3. Then defense counsel confirmed that was his understanding
of the negotiated resolution of the charges and Huffman would plead guilty to the criminal
mischief count and no contest with a stipulated finding of guilty to the attempted assault
count. Id. at 4. The trial court immediately granted the amendments to the charges and
found Huffman guilty of both. Id. at 4-5. Huffman never spoke. The only "plea form"
signed by Huffman was a waiver of right to jury trial. We find the record is devoid of any
compliance with Crim.R. 11(E). Although a defendant is normally required to show
prejudice to benefit from that error, we find the Supreme Court of Ohio has removed that
requirement.
{¶ 11} In Jones, after finding the trial court had failed to inform Jones of the effect
of his plea, the Supreme Court turned to the issue of prejudice, finding failure to comply
with non-constitutional rights such as Crim.R. 11(B)(1) "'will not invalidate a plea unless
the defendant thereby suffered prejudice.'" Jones at ¶ 52, quoting State v. Griggs, 2004-
Ohio-4415, ¶ 12. But subsequent to Jones and Griggs, the Supreme Court of Ohio
decided State v. Dangler,
2020-Ohio-2765.
{¶ 12} Dangler sought to vacate his no contest plea because the trial court failed
to inform him of the maximum penalty at the time of taking the plea as required under
Crim.R. 11(C)(2)(a) (failure to explain the obligations and requirements of being a
registered sex offender). The Court noted it had created an additional exception to the
prejudice requirement (other than failing to explain constitutional rights): "a trial court's
Knox County, Case No. 24CA00012 5
complete failure to comply with a portion of Crim.R. 11(C) eliminates the defendant's
burden to show prejudice." (Emphasis in original.) Id. at 15, citing State v. Sarkozy, 2008-
Ohio-509 (the trial court completely failed to comply with Crim.R. 11(C)(2)(a)'s
requirement that it explain the maximum penalty when the court made no mention of the
mandatory postrelease control in the plea colloquy).
{¶ 13} The trial court had engaged Dangler in a plea colloquy. The Court found
because the trial court advised Dangler he would be subject to the sex offender
registration requirements, it did not completely fail to comply with Crim.R. 11(C)(2)(a)'s
maximum-penalty-advisement requirement (a non-constitutional right). And therefore,
Dangler was required to show prejudice.
{¶ 14} But here, there was a complete failure to comply with Crim.R. 11(E), and
we join other districts in applying to petty misdemeanor offenses the Supreme Court of
Ohio's admonition in Dangler that a complete failure to comply with Crim.R. 11(C) in a
felony offense does not require a prejudice analysis; therefore, Huffman's burden to show
prejudice is eliminated. See Cleveland v. Byers, 2023-Ohio-4542 (8th Dist.); State v.
Jackson,
2022-Ohio-3662 (2d Dist.); State v. Brown,
2021-Ohio-3443 (9th Dist.).
{¶ 15} The State of Ohio argues Huffman invited the errors he now complains of
and in support, cites this court's decision in State v. Wright, 2019-Ohio-374 (5th Dist.).
Before turning to Wright, we will first examine the doctrine of invited error, as it will help
harmonize the precedent before us. The Supreme Court has stated the doctrine as this:
"A party will not be permitted to take advantage of an error which he himself invited or
induced the trial court to make." Lester v. Leuck,
142 Ohio St. 91 (1943), paragraph one
of the syllabus.
Knox County, Case No. 24CA00012 6
{¶ 16} The Second District has stated the rule in a more comprehensive way:
"'The doctrine of invited error is a corollary of the principle of
equitable estoppel. Under the doctrine of invited error, an appellant, in
either a civil or a criminal case, cannot attack a judgment for errors
committed by himself or herself; for errors that the appellant induced the
court to commit; or for errors into which the appellant either intentionally or
unintentionally misled the court, and for which the appellant is actively
responsible. Under this principle, a party cannot complain of any action
taken or ruling made by the court in accordance with that party's own
suggestion or request.'" (Citations omitted.)
State v. Cunigan, 2011-Ohio-4010, ¶ 12 (2d Dist.), quoting Daimler/Chrysler Truck
Financial v. Kimball,
2007-Ohio-6678, ¶ 40, quoting 5 Ohio Jur.3d, Appellate
Review, § 448, at 170-171 (1999, Supp. 2007).
{¶ 17} Thus, the rule requires an overt and erroneous act on the part of the
defendant upon which the trial court relied when ruling on the error now complained of on
appeal. The requirement of an affirmative act distinguishes it from other related doctrines
grounded in the principals of equitable estoppel. The scope of the invited error rule is
made clearer by considering it against the doctrine of forfeiture (or waiver as it is often
conflated with).
{¶ 18} In a dissenting opinion, Justice Cook observed in its strictest sense, waiver
is an "intentional relinquishment or abandonment of a known right" where forfeiture is
Knox County, Case No. 24CA00012 7
better viewed as "the failure to make a timely assertion of a right." State v. McKee, 91
Ohio St.3d 292, 298, fn. 3 (2001) (Cook, J., dissenting), quoting United States v. Olano,
507 U.S. 725, 733 (1993), quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938).1 She
correctly observed the distinction between the two doctrines has consequences in
whether plain error can be recognized by an appellate court: forfeiture allows the
reviewing court to consider plain error, whereas in cases of true waiver, the appellant is
usually estopped from receiving a reversal on plain error.
McKee at 298, fn. 3.
{¶ 19} Justice Cook observed part of the reason for this distinction is to give force
to the contemporaneous objection rule. Id. at 301. The failure to timely object allows the
appellant to raise the error on appeal, but only under the plain error standard.
Id. Their
operation in tandem ensures prejudicial errors that should have been obvious during trial
can be corrected, but narrows the scope of appellate review to avoid either
gamesmanship or inattentiveness on the part of the complaining party. See id; see also
Henderson v. United States,
568 U.S. 266, 286 (2013) (Scalia, J., dissenting) ("Where a
criminal case . . . [is] a sure loser with the jury, it makes entire sense to stand silent while
the court makes a mistake that may be the basis for undoing the conviction").
{¶ 20} In this light, it becomes clearer that in instances where a defendant stands
silent and makes no objection, it is more fairly characterized as a forfeiture of the right to
complain of all error but plain error. On the other hand, when a defendant actively
participates in the trial court committing error, this closely resembles instances where a
defendant intentionally abandons a right, i.e., the related estoppel doctrine of waiver. But
1Later the Supreme Court adopted Justice Cook's reasoning in State v. Payne, 2007-
Ohio-4642, ¶ 23.
Knox County, Case No. 24CA00012 8
a defendant's active participation in creating the error is in excess of intentional
abandonment of a right (waiver) and thus has consequences on our standard of review.
For example, we will often consider whether the waiver of constitutional rights was
knowingly and intelligently given. See, e.g., State v. Kelley, 57 Ohio St.3d 127, 129
(1991). Yet, in the case of invited error, we typically refuse to entertain either plain error
or question the circumstances in which the waiver was given. See State v. Osie, 2014-
Ohio-2966, ¶ 179, citing State v. Campbell,
90 Ohio St.3d 320 (2000), [paragraph three
of the syllabus]. True invited error in a case like the one before us would allow us to
forego a consideration of whether the error rendered the plea involuntary.
{¶ 21} Here, we conclude it would be a mistake to treat defense counsel's failure
to object to the trial court's failure to adhere to Crim.R.11(E) as invited error. The trial
court's obligation was to follow the rules and the record is devoid of any evidence that
Huffman, through an overt act, induced the trial court to commit that error. The
circumstances here are where forfeiture generally applies, i.e., Huffman remained silent
while an error was committed. But even under a plain error review, we think Dangler
requires us to recognize the error as one that affects a substantial right and requires
reversal.
{¶ 22} Finally, we think the result is the same if we considered this under the
doctrine of waiver. At oral argument and in its brief, the State of Ohio argued Huffman
somehow relinquished or abandoned this right by pleading at the conclusion of
negotiations. But the State could not point to any plea agreement or similar promises on
the record that allows us to conclude that Huffman waived his right to receive the notice
that Crim.R.11(E) and Dangler require.
Knox County, Case No. 24CA00012 9
{¶ 23} In the absence of something in the record to support waiver, we would be
imputing a general waiver forgiving trial courts in any instance like this where there is a
complete failure to adhere to the rules meant to ensure the plea was made knowingly and
voluntarily. This is beyond anything the Supreme Court has held. Moreover, such an
expansion could seemingly implicate a constitutional question of due process of whether
we can impute a waiver of errors arising from complete noncompliance whenever the
State asserts the plea was the result of some negotiations not in the record. As noted
above, we usually require waivers to be given knowingly, which would be in doubt in such
a circumstance.
{¶ 24} Now turning to Wright, the facts in that case are similar to the facts in this
case. In Wright, the defendant pled no contest and stipulated to a finding of guilty. The
trial court did not inform the defendant of the effect of his pleas and did not call for an
explanation of circumstances. On review, this court concluded:
In the case at bar, we find Wright or his attorney could have, but did
not, object to the trial court's failure to ask for a recitation of facts. We further
find that Wright or his attorney could have, but did not, ask the trial to explain
the effect of his no contest plea. Therefore, we find that Wright waived and
invited the errors that he now raises on appeal. Further, we find that Wright
has failed to demonstrate prejudice from the trial court's failure to explain
the effect of a no contest plea and the trial court's failure to ask for a
recitation of the underlying facts.
Knox County, Case No. 24CA00012 10
Wright, 2019-Ohio-374, at ¶ 25 (5th Dist.).2
{¶ 25} We think Wright is distinguishable for two reasons. First, although at times
the previous panel of this court interchanged waiver and invited error, it appears to this
panel it was reviewing the case under the doctrine of waiver. As discussed above, we
think in the case at bar, we lack sufficient facts to conclude there was an intentional
relinquishment of Huffman's rights under Crim.R.11(E).
{¶ 26} Second, the prior decision was prior to the Supreme Court's decision in
Dangler. We think that in order to comply with precedent from a superior court, we are
obliged under Crim.R.52(B), at a minimum, to recognize the total failure to advise under
the rule here as an error affecting a substantial right. Dangler, 2020-Ohio-2765, at ¶ 15
("We have created one additional exception to the prejudice requirement: a trial court's
complete failure to comply with a portion of Crim.R. 11(C) eliminates the defendant's
burden to show prejudice"). So, assuming arguendo, we do not usually recognize plain
error instances when waiver is present, we think we must here under Dangler because
the failure to provide the advisement undermines whether the plea was given voluntarily.
Id. at ¶ 10, 11, and 18.
2Judge Hoffman was on the Wright panel, but wrote a concurring in part and dissenting
in part opinion, stating: "I do not believe Appellant waived or invited the error regarding
the failure of the trial court to comply with Crim.R. 11(E) as a result of his stipulation to a
finding of guilty. Nor do I find waiver of invited error because neither he nor his attorney
informed the trial court Appellant did not understand the significance of the plea he was
entering or otherwise indicated his confusion." Id. at ¶ 32. Judge Hoffman cited to Jones,
2007-Ohio-6093, and found appellant was not required to show prejudice. Id. at ¶ 33-35.
Knox County, Case No. 24CA00012 11
{¶ 27} This panel does not agree that invited error is a viable argument for the
State in the case before us. Crim.R. 11(E) requires the trial court to do something which
it failed to do. The burden is not on Huffman to make sure the trial court complies with its
mandated requirements, and the party who merely stayed silent cannot be fairly said to
have invited the error.
{¶ 28} Upon review, we find the trial court erred in accepting Huffman's pleas
without informing him of the effect of those pleas. We find Huffman's remaining
arguments to be moot.
{¶ 29} Assignment of Error I is granted in part. Assignment of Error II is moot.
{¶ 30} The plea entered in the Mount Vernon Municipal Court of Knox County,
Ohio is hereby vacated and the matter is remanded to the court for further proceedings.
By King, J.
Delaney, P.J. and
Hoffman, J. concur.
