State v. Born

[Cite as State v. Born, 2026-Ohio-3398.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY STATE OF OHIO, CASE NO. 2026-P-0024 Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas JOSHUA D. BORN, Trial Court No. 2025 CR 00399 Defendant-Appellant. OPINION AND JUDGMENT ENTRY Decided: August 31, 2026 Judgment: Affirmed Connie J. Lewandowski, Portage County Prosecutor, and James W. Armstrong, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff- Appellee). Wesley C. Buchanan, 50 South Main Street, Suite 625, Akron, OH 44308 (For Defendant-Appellant). MATT LYNCH, P.J. {¶1} Appellant, Joshua D. Born, appeals from the judgment of the Portage County Court of Common Pleas that sentenced him, following his plea of guilty, to an indefinite prison term of a minimum of six years up to a maximum of nine years. We affirm. {¶2} On May 22, 2025, the Portage County Grand Jury returned an Indictment charging Born with five counts: (1) aggravated trafficking in drugs (methamphetamine), a felony of the second degree, in violation of R.C. 2925.03; (2) aggravated possession of drugs (methamphetamine), a felony of the second degree, in violation of R.C. 2925.11; (3) possessing criminal tools (scale and baggies), a felony of the fifth degree, in violation of R.C. 2923.24; (4) driving under suspension, a misdemeanor of the first degree, in violation of R.C. 4510.11; (5) possessing drug abuse instruments (pipe), a misdemeanor of the second degree, in violation of R.C. 2925.12. {¶3} A plea hearing was held on August 5, 2025, during which the trial court engaged Born in a Crim.R. 11(C)(2) colloquy, advising him of his constitutional and nonconstitutional rights. Born entered an oral and Written Plea of Guilty to Count One, aggravated trafficking in drugs, and Count Five, possessing drug abuse instruments, as charged in the Indictment. The trial court accepted Born’s plea and ordered a presentence investigation. {¶4} The sentencing hearing was held on September 29, 2025. After considering the purposes and principles of sentencing and the recidivism and seriousness factors, the trial court found Born had not rebutted the presumption for prison in this case based upon his extensive criminal history, including prison sentences for felonies of burglary and trafficking in drugs. The court sentenced Born to an indefinite mandatory prison term of six years up to nine years on Count One and ninety days in jail on Count Five, to run concurrently. The court also ordered Born to pay a mandatory fine of $7,500.00 and court costs. The court notified Born that he would be supervised under post-release control for eighteen months to three years. {¶5} The court’s sentencing entry was journalized on September 29, 2025, and this court permitted Born to file a delayed appeal therefrom. Born raises three assignments of error for our review. PAGE 2 OF 10 Case No. 2026-P-0024  {¶6} As his first assignment of error, Born contends that his guilty plea was not entered knowingly, intelligently, and voluntarily because the trial court failed to strictly comply with Crim.R. 11. {¶7} Whether the trial court accepted a plea in compliance with Crim.R. 11 is a question of law reviewed de novo. State v. Tillis, 2023-Ohio-673, ¶ 10 (11th Dist.); see generally State v. Veney, 2008-Ohio-5200. {¶8} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527 (1996). Crim.R. 11 was adopted to give trial courts detailed instruction on the procedure to follow before accepting a plea of guilty or no contest. Veney at ¶ 7. {¶9} Crim.R. 11(C)(2) provides, in relevant part, as follows: In felony cases the court . . . shall not accept a plea of guilty or no contest without first addressing the defendant personally . . . and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) 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. PAGE 3 OF 10 Case No. 2026-P-0024  {¶10} During the plea hearing, the trial court specifically addressed Born regarding the rights he was waiving by entering the plea of guilty; to wit: THE COURT: All right. By entering this plea of guilty you are giving up your right to a trial by jury. At that trial, the prosecutor would have to prove beyond a reasonable doubt each and every element of the charges against you. Your Attorney could cross-examine and confront the witnesses who come in and testify for the State of Ohio, you could subpoena or compel witnesses, have them come in and testify for you and you could take the stand at your trial if you chose to do so. You have a constitutional right not to testify, but if you wanted to you could. That along with those rights to trial you’re giving up by entering this plea of guilty, do you understand that? DEFENDANT: Yes. THE COURT: You also have to understand that by entering this plea you are admitting each and every element of this charge thereby waiving any right to appeal your plea, do you understand that? DEFENDANT: Yes, Your Honor. THE COURT: And even though I am going to order a presentence investigation, you have to understand if I chose to today, I could proceed to sentence you to the maximum which is eight to twelve years; do you understand? DEFENDANT: Yes. {¶11} Born does not dispute that the trial court adequately advised him of the various rights enumerated under Crim.R. 11(C)(2). Instead, Born claims that his plea was not knowingly, voluntarily, and intelligently entered because the trial court failed to inform him of his right to a bench trial and that he would be subject to post-release control. We disagree. {¶12} The right to a bench trial is conferred by statute, State v. Mallard, 2024- Ohio-297, ¶ 63 (11th Dist.), citing R.C. 2945.05, and “there is no requirement for a trial court to advise a defendant of his or her right to a bench trial prior to accepting his or her plea,” id. at ¶ 65, citing State v. Mallory, 2021-Ohio-1542, ¶ 32 (11th Dist.). See also PAGE 4 OF 10 Case No. 2026-P-0024 State v. Kittelson, 2016-Ohio-8430, ¶ 30 (11th Dist.); State v. Lewis, 2019-Ohio-1994, ¶ 13 (8th Dist.); State v. Acosta, 2016-Ohio-5698, ¶ 14 (6th Dist.). Accordingly, we conclude that the trial court did not err when it did not advise Born he was waiving his statutory right to a bench trial. {¶13} Moreover, the trial court did advise Born at the plea hearing that he would be subject to post-release control: THE COURT: Upon your release from prison on this offense, the Adult Parole Authority will supervise you anywhere from eighteen months to three years. During that time, if you violate their rules, they can send you back to prison for up to half your original sentence and if you commit a new felony, that time could result in a prison sentence up to half your original sentence up to one year, do you understand that? DEFENDANT: Yes, ma’am. Thus, there is no basis for Born’s argument regarding the court’s post-release control advisement. {¶14} Born’s first assignment of error is without merit. {¶15} As his second assignment of error, Born contends that he received ineffective assistance of counsel when entering his plea. Specifically, Born claims that he “wanted the mandatory sentence of two years” and had he “known he was going to get more than 2 years, he would not have pled guilty to the offense.” {¶16} “‘There is a general presumption that trial counsel’s conduct is within the broad range of professional assistance.’” State v. Robinson, 2021-Ohio-1064, ¶ 24 (11th Dist.), quoting State v. Andrus, 2020-Ohio-6810, ¶ 60 (11th Dist.), citing State v. Bradley, 42 Ohio St.3d 136, 142-143 (1989). The burden of establishing ineffective assistance of counsel falls upon the appealing defendant. Id. Born’s argument falls far short of satisfying this burden. PAGE 5 OF 10 Case No. 2026-P-0024  {¶17} “In order to prevail on an ineffective assistance of counsel claim, an appellant must demonstrate that trial counsel’s performance fell ‘below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance.’” Andrus at ¶ 60, quoting Bradley at paragraph two of the syllabus (adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984)). “In order to show prejudice, the appellant must demonstrate a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.” Id., citing Bradley at paragraph three of the syllabus. {¶18} As discussed under Born’s first assignment of error, his pleas were discussed on record in a manner that demonstrates, as a matter of law, they were entered knowingly, voluntarily, and intelligently. We perceive no issue with counsel advising Born to enter pleas of guilty. Moreover, during the plea hearing, Born affirmed that he was neither forced nor threatened to enter his pleas. Born also affirmed that his attorney reviewed the Written Plea of Guilty with him, which Born then signed. Finally, Born affirmed that he was satisfied with his attorney’s performance. {¶19} We cannot conclude, in light of the record before us, that counsel rendered deficient performance or proceeded in such a way as to prejudice Born. {¶20} Born’s second assignment of error lacks merit. {¶21} As his third assignment of error, Born maintains that he was sentenced contrary to law because he was not permitted to allocute. {¶22} Crim.R. 32 preserves the right of allocution and requires the trial court, at sentencing, to both “[a]fford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement PAGE 6 OF 10 Case No. 2026-P-0024 in his or her own behalf or present any information in mitigation of punishment.” Crim.R. 32(A)(1). {¶23} “The plain language of the rule imposes a mandatory duty upon the trial court to unambiguously address the defendant and provide him or her with the opportunity to speak before sentencing.” State v. Brown, 2006-Ohio-1796, ¶ 8 (11th Dist.), citing State v. Green, 90 Ohio St.3d 352, 359 (2000), citing Green v. United States, 365 U.S. 301, 305 (1961). “Trial courts must painstakingly adhere to Crim.R. 32, guaranteeing the right of allocution. A Crim.R. 32 inquiry is much more than an empty ritual: it represents a defendant’s last opportunity to plead his case or express remorse.” Green, 90 Ohio St.3d at 359-360. “[T]rial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.” Green, 365 U.S. at 305. “The right to allocution is both absolute and not subject to waiver due to a defendant’s failure to object.” Brown at ¶ 8, citing State v. Campbell, 90 Ohio St.3d 320, 325-326 (2000). “When a trial court imposes sentence without first asking the defendant whether he or she has anything to say in his or her defense, the judgment of sentence shall be reversed and the cause shall be remanded for resentencing, unless the error is invited or harmless.” Id., citing Campbell at 326. {¶24} At the commencement of the sentencing hearing, the court asked, “Does the Defendant have anything to say before the court pronounces sentence?” (Emphasis added.) Born remained silent while his counsel responded with mitigating information and a request for the mandatory minimum sentence. {¶25} We have previously held that the court simply asking, “[a]nything from the defense?” was insufficient to satisfy Crim.R. 32(A) because the invitation to speak was PAGE 7 OF 10 Case No. 2026-P-0024 “not an unambiguous ‘inquiry directed only to the defendant.’” (Emphasis sic.) State v. Spaid, 2024-Ohio-2771, ¶ 18 (11th Dist.), quoting Green, 90 Ohio St.3d at 359. “The trial judge must unambiguously and explicitly ask the defendant, in an inquiry directed only to him, whether he has anything to say prior to sentencing.” Id. at ¶ 12, citing Green at 359. Here, Born chose to remain silent while his counsel spoke on his behalf after the trial judge properly invited “the Defendant” to speak. Born’s choice of silence when presented with the invitation to allocute cannot be held against the trial judge. Born’s argument to the contrary is not well taken. {¶26} Finally, Born claims that the trial court erred by imposing a mandatory fine because the court had already found him indigent. R.C. 2929.18(B)(1) provides: If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender. The record does not reflect that Born filed an affidavit of indigency with the court prior to sentencing, which is fatal to his appeal on this issue. State v. Williams, 2014-Ohio-65, ¶ 17 (11th Dist.), quoting State v. Gipson, 80 Ohio St.3d 626, 633 (1998) (“‘the fact that the affidavit was not properly filed prior to sentencing is, standing alone, a sufficient reason to find that the trial court committed no error by imposing the statutory fine’”). Moreover, Born’s reliance on the trial court’s appointment of the public defender’s office to represent him is misplaced in this context. “This is because, ‘when deciding whether a defendant is an indigent for the purpose of appointment of counsel, the trial court need only inquire into the defendant’s indigency status at the time request for counsel was made.’” Id. at ¶ 18, quoting State v. McDowell, 2003-Ohio-5352, ¶ 69 (11th Dist.). “‘However, when PAGE 8 OF 10 Case No. 2026-P-0024 evaluating indigency for the avoidance of a mandatory fine, the trial court may inquire into the defendant’s ability to pay the mandatory fine in the future, and is not limited to the indigency status of the defendant at the time it [the fine] was imposed.’” Id., quoting McDowell at ¶ 69. Accordingly, Born’s challenge to the court’s imposition of the mandatory fine is not well taken. {¶27} Born’s final assignment of error is without merit. {¶28} The judgment of the Portage County Court of Common Pleas is affirmed. JOHN J. EKLUND, J., ROBERT J. PATTON, J., concur. PAGE 9 OF 10 Case No. 2026-P-0024  JUDGMENT ENTRY For the reasons stated in the opinion of this court, appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed. Costs to be taxed against appellant. PRESIDING JUDGE MATT LYNCH JUDGE JOHN J. EKLUND, concurs JUDGE ROBERT J. PATTON, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 10 OF 10 Case No. 2026-P-0024