State v. Stiltner , 2022 Ohio 290 ( 2022 )

[Cite as State v. Stiltner, 2022-Ohio-290.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2021 CA 0023
KYLE STILTNER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2020-
CR-0278
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 1, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP STEVEN BILLING
Prosecuting Attorney Box 1671
By: VICTORIA MUNSON Columbus, OH 43215
Assistant Prosecutor
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 2021 CA 0023 2
Gwin, P.J.
{¶1} Appellant Kyle Stiltner appeals from the March 31, 2021 judgment entry of
the Richland County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On April 9, 2020, appellant was charged with felonious assault, a felony of
the second degree, in Mansfield Municipal Court. The municipal court held a preliminary
hearing on April 30, 2020. Based upon the testimony and evidence provided, the
municipal court judge found probable cause, and bound the case over to Richland County
Court of Common Pleas for consideration by the grand jury. When the parties were
discussing bond, counsel for appellant argued against increased bond. The prosecutor
asked for increased bond since the incident was a shooting. The prosecutor stated,
“initially there was some speculation that there might be a self-defense claim * * * that
claim, if there is one, is significantly weakened” after the testimony at the preliminary
hearing.
{¶3} On May 11, 2020, the grand jury indicted appellant and charged him with
the following: attempted murder, a felony of the first degree (Count 1) with a firearm
specification; felonious assault, a felony of the second degree (Count 2) with a firearm
specification; felonious assault, a felony of the second degree (Count 3) with a firearm
specification; having weapons under disability, a felony of the third degree (Count 4);
possession of heroin, a felony of the fourth degree (Count 5); possession of a fentanyl-
related compound, a felony of the fourth degree (Count 6); possession of cocaine, a felony
of the fifth degree (Count 7); aggravated possession of drugs, a felony of the fifth degree
Richland County, Case No. 2021 CA 0023 3
(Count 8); possession of drugs, buprenorphine, a felony of the fifth degree (Count 9); and
possession of drugs, diazepam, a felony of the fifth degree (Count 10).
{¶4} The trial court held a change of plea and sentencing hearing on March 26,
2021. Appellee offered appellant a plea agreement, which appellant accepted. In
exchange for his plea of guilty to the remaining charges, appellee agreed to dismiss
Counts 1 and 3.
{¶5} The trial court initially asked appellant several questions. Appellant stated
he graduated from high school, did not have any trouble with reading, writing, or
understanding English, and did not have anything in jail that would cause him problems
with clear thinking. Appellant confirmed he was satisfied with his attorney. Counsel for
appellant stated he was satisfied that appellant was making a knowing, voluntary, and
intelligent plea.
{¶6} The trial court then went through appellant’s rights, as follows: appellant
could have a trial to the court or a jury trial; appellant was presumed innocent; the
prosecutor must prove his guilt beyond a reasonable doubt; appellant had the right to
confront witnesses and his attorney had the right to cross-examine witnesses; appellant
had the right to subpoena witnesses for trial; and appellant had the right not to testify at
trial, which could not be used against him. Appellant confirmed he understood he was
giving up these rights by entering a plea.
{¶7} The trial court then reviewed the maximum penalty for the charges and
informed appellant: Count 2 (felonious assault) is a second-degree felony that carries the
presumption of prison with a maximum prison term of eight to twelve years, a $15,000 fine,
and three years of post-release control; Count 4 (weapons under disability) is a third-
Richland County, Case No. 2021 CA 0023 4
degree felony with a maximum prison term of thirty-six months in prison, $10,000 fine, and
three year discretionary post-release control; Counts 5 and 6 (possession of heroin and
possession of fentanyl) are fourth-degree felonies with maximum prison terms of eighteen
months each, $5,000 fines on each, three years of option post-release control on each,
and optional driver’s license suspension from six months to five years on each count;
Counts 7, 8, 9, and 10 (possession of cocaine, possession of methamphetamine,
possession of buprenorphine, and possession of diazepam) are fifth-degree felonies, each
with a maximum prison term of twelve months, $2,500 fine, and three years discretionary
post-release control. The trial court stated these could all be run consecutive to each
other, but that the trial court would not run them all consecutively. Appellant confirmed he
understood the maximum penalties as described above.
{¶8} The trial court specifically told appellant that Count 2 carried a mandatory
three-year firearm specification and explained, “that means if you plead to that count and
that specification, you have to do three years mandatory and consecutive, and you do that
first before you start to serve the sentence on the felonious assault.” Appellant stated he
understood.
{¶9} The court briefly reviewed the facts of the case with appellant, stating the
charges were the result of an incident on April 7, 2020, when the victim was shot in the
arm and the stomach after an altercation between the victim, Mr. Burkhart, and appellant
at the Backroom Bar and Grill in Mansfield, Ohio. Further, there were drugs located in a
black box that appellant had possession of. The court inquired if appellant understood
what he was accused of doing and appellant responded, “yes, sir.”
Richland County, Case No. 2021 CA 0023 5
{¶10} At this point, the trial court asked appellant if he had any other questions.
Appellant stated he did. However, the question by appellant was inaudible in the
transcript. It appears from the trial court’s response that appellant was asking whether the
victim and Mr. Burkhart were going to be charged as a result of the April 7, 2020 incident.
The trial court informed appellant that it was up to the prosecutor to determine who gets
charged and who does not, and, if appellant felt others should be charged for their
involvement, appellant could attempt to contact the prosecutor.
{¶11} Counsel for appellee explained he was present at the preliminary hearing
and that the victim admitted to coming after appellant with his vehicle after appellant shot
him. Counsel for appellee stated, “it looks like that would have been in self-defense * * *
after being shot at by appellant,” and, “as far as his preliminary testimony, it seemed to be,
at most, in self-defense.” The trial judge told appellant, “they’re indicating that they think
that what they have right now against [the victim] isn’t sufficient to charge him with
anything. That’s what they’re saying.” The trial court then asked appellant if he had any
other questions, and appellant responded, “no, sir.”
{¶12} Appellant stated he wanted to plead no contest, and signed the plea form
in front of the trial judge. The trial court informed appellant that a no contest plea is an
admission of the charges, “you’re admitting, that, yeah, I had the gun, I shot the gun, I
wasn’t allowed to have the gun, and I wasn’t allowed to have these drugs and I had these
drugs. Is that all true?” Appellant responded, “yes, sir.”
{¶13} Based on appellant’s representations, the trial court accepted his no contest
plea, finding appellant’s plea was knowing, voluntary, and intelligent.
Richland County, Case No. 2021 CA 0023 6
{¶14} The trial court imposed the agreed-upon sentence pursuant to the
negotiated plea between appellant and appellee, which was: seven to ten-and-one-half
years on Count 2 with three years for the firearm specification, thirty-six months on Count
4, and twelve months on Counts 5 through 10. The court found the sentence for Counts
4 through 10 should be served concurrent with the sentence on Count 2, for a total prison
term of seven to ten-and-one-half years, plus three years for the firearm specification.
{¶15} Appellant and his counsel signed an “admission of guilt” form on March 26,
2021, stating he wished to plead no contest to Counts 2, 4, 5, 6, 7, 8, 9, and 10, while
Counts 1 and 3 were dismissed. The admission of guilt form stated appellant understood
the maximum sentence of twenty-one years, with three years being mandatory. Further,
that he was satisfied with his attorney’s advice and competence; that he was not under
the influence of drugs or alcohol; and that no threats had been made. The form specifically
enumerates the rights appellant was giving up by pleading guilty, including: the right to a
jury or court trial, the right to have his attorney question witnesses against him, the right to
use the power of the court to call witnesses to testify for him, the right to not take the
witness stand, and the right to have the prosecutor prove his guilt beyond a reasonable
doubt. Finally, the form provides, “I understand the nature of these charges and the
possible defenses I might have.”
{¶16} The trial court issued a judgment entry of conviction and sentencing entry
on March 31, 2021.
{¶17} Appellant appeals the March 31, 2021 judgment entry of the Richland
County Court of Common Pleas and assigns the following as error:
Richland County, Case No. 2021 CA 0023 7
{¶18} “I. THE TRIAL COURT COMMITTED ERROR IN ACCEPTING
APPELLANT’S CHANGE OF PLEA WITHOUT INFORMING DEFENDANT OF HIS
WAIVER OF ASSERTING AFFIRMATIVE DEFENSES.”
I.
{¶19} Appellant contends his plea was not knowing, voluntary, or intelligent
because the trial court did not inform him that his plea would forfeit his right to assert the
affirmative defense of self-defense. Appellant cites the prosecutor’s statement at the
preliminary hearing with regards to bond in support of his argument that self-defense was
an issue beginning early on in the case.
{¶20} We disagree with appellant.
{¶21} This issue is controlled by State v. Reynolds, 40 Ohio St.3d 334, 533 N.E.2d
342 (1988), in which the Ohio Supreme Court held that, where a criminal defendant is
represented by counsel, a trial court is not required to apprise a pleading defendant of the
availability of defenses, even in circumstances where the same statute that defines the
offense defines various affirmative defenses. The Court stated, “where a criminal
defendant [is] represented by counsel * * *, the trial court is not required, pursuant to
Crim.R. 11(C), to apprise him of affirmative defenses * * * prior to accepting his plea.” Id.{¶22} Numerous courts have followed the holding of the Ohio Supreme Court in
Reynolds. State v. Gardner, 3rd Dist. Union No. 14-02-18, 14-02-19, 2003-Ohio-1598(trial court was not required to inform defendant that pleading guilty would forfeit his right
to assert the affirmative defense of self-defense); State v. Phillips, 3rd Dist. Van Wert No.
15-12-02, 2012-Ohio-5950 (“it is well-settled that there is no requirement under Crim.R.
11(C)(2) that trial courts apprise defendants of available defenses when accepting a
Richland County, Case No. 2021 CA 0023 8
change of plea”); State v. Albright, 8th Dist. Cuyahoga No. 107632, 2019-Ohio-1998 (trial
court is not required to apprise a defendant of available affirmative defenses prior to
accepting a plea or inform a defendant that a plea will waive any such defenses); State v.
McIntosh, 8th Dist. Cuyahoga No. 93714, 2010-Ohio-6471 (issue of whether a trial court
has to inquire into whether the defendant understood the nature of the affirmative defense
of self-defense is controlled by Reynolds); State v. Cooke, 8th Dist. Cuyahoga No. 108824,
2020-Ohio-2725 (where a criminal defendant is represented by counsel, Criminal Rule
11(C) does not require trial courts to inform defendants of affirmative defense that may be
available to them prior to accepting their pleas); State v. Ferdinandsen, 3rd Dist. Hancock
No. 5-16-08, 2016-Ohio-7172 (overruling defendant’s argument that his Criminal Rule 11
hearing was inadequate because the trial court did not advise him that he was waiving his
self-defense claim); State v. Young, 10th Dist. Franklin No. 10AP-292, 2010-Ohio-5873(Criminal Rule 11(C)(2) does not require that a trial court advise a defendant concerning
all existing affirmative defenses or make a determination that the defendant is aware of
the available defenses); State v. Griffey, 11th Dist. Portage No. 2009-P-0077, 2010-Ohio-
6573 (overruling the defendant’s argument that his plea was invalid because the trial court
failed to explain to him his potential affirmative defenses).
{¶23} In this case, appellant was represented by counsel. Thus, pursuant to
Reynolds, Criminal Rule 11 did not require the trial court to inform appellant that the
affirmative defense of self-defense may be available to him prior to accepting his plea.
{¶24} Trial courts must strictly comply with the provisions concerning
constitutional rights set forth in Criminal Rule 11(C)(2). However, appellant’s argument
concerning the trial court’s failure to discuss the affirmative defense of self-defense does
Richland County, Case No. 2021 CA 0023 9
not implicate the constitutional rights enumerated in Criminal Rule 11(C)(2). As such, this
Court only needs to review whether the trial court substantially complied with the
provisions concerning non-constitutional rights set forth in Criminal Rule 11. State v.
Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51. Under the substantial-
compliance standard, we review the totality of the circumstances surrounding the
defendant’s plea and determine whether the defendant subjectively understood the effect
of the plea. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224.
{¶25} Based upon the totality of the circumstances, we find appellant entered his
plea knowingly, intelligently, and voluntarily, and that the trial court properly determined as
much through a meaningful colloquy with appellant. Prior to accepting appellant’s plea,
the trial court held a hearing and engaged in a colloquy regarding appellant’s
understanding of the nature of the charges, the potential penalties, the consequences of
the plea agreement, and his constitutional rights. The court ensured appellant was not
under the influence of alcohol or drugs, that he did not have any trouble with reading,
writing, or understanding English, and that he was satisfied with his counsel’s
representation. The court then advised appellant of the charges, including the maximum
possible penalty for each offense. Appellant indicated he understood the court’s
explanation.
{¶26} Thereafter, the trial court advised appellant of his constitutional rights,
including the right to a trial, the presumption of innocence, the right to confront witnesses
and have his attorney cross-examine witnesses, the right to subpoena witnesses, the right
to not testify at trial, and the fact that the prosecutor must prove his guilt beyond a
reasonable doubt. Appellant stated he understood the court’s advisement.
Richland County, Case No. 2021 CA 0023 10
{¶27} Additionally, appellant and his counsel signed an “admission of guilt” form
stating he wished to plead no contest to Counts 2, 4, 5, 6, 7, 8, 9, and 10, while Counts 1
and 3 were dismissed. The form specifically states, “I understand the nature of these
charges and the possible defenses I might have.” Not only did the plea form indicate
review with defense counsel, but appellant in open court admitted he reviewed the
document with his attorney and understood it. Counsel for appellant stated he was
satisfied that appellant was making a knowing, voluntary, and intelligent plea.
{¶28} Appellant did ask the trial court during the plea colloquy whether the victim
or Mr. Burkhart were going to be charged as a result of the incident. Counsel for appellee,
who was present at the preliminary hearing, stated any actions by the victim after the
shooting were done in self-defenses. The trial court explained to appellant that the
prosecutor was indicating there was not sufficient evidence to charge the victim with
anything. However, subsequent to this question by appellant, appellant then stated he
had no further questions, signed the plea form, and stated he wanted to enter a no contest
plea. After appellant’s questions about others being charged as a result of the incident,
the trial court confirmed with appellant that, “you’re admitting that, yeah, I had the gun, I
shot the gun, I wasn’t allowed to have the gun, and I wasn’t allowed to have these drugs
and I had these drugs.” Appellant responded, “yes, sir.” Further, during the plea hearing,
counsel for appellant specifically stated he and appellant discussed what appellant’s
possible defenses might be, and that appellant discussed with counsel the victim’s
involvement in the case (T. at 16).
{¶29} Additionally, a defendant who challenges a plea on a non-constitutional
basis must demonstrate a prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 2008-
Richland County, Case No. 2021 CA 0023 11
Ohio-5200, 897 N.E.2d 621. The test for prejudice is “whether the plea would have
otherwise been made.” State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).
Appellant has not demonstrated that he would not have entered a plea had he been more
thoroughly advised by the court regarding his non-constitutional rights. See State v.
Young, 10th Dist. Franklin No. 10AP-292, 2010-Ohio-5873. Thus, we find no evidence
appellant was prejudiced and he does not point to any such evidence.
{¶30} Based on the foregoing, we find the trial court complied with Criminal Rule
11. Therefore, appellant’s assignment of error is overruled.
{¶31} The March 31, 2021 judgment entry of the Richland County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur