[Cite as State v. Simmons, 2026-Ohio-2761.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
CASE NO. CA2024-11-024
Appellee, :
OPINION AND
vs. : JUDGMENT ENTRY
7/20/2026
CURTIS A. SIMMONS, :
Appellant. :
:
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI 20240063
Nicholas A. Adkins, Madison County Prosecuting Attorney, and Rachel M. Price, Assistant Prosecuting Attorney, for appellee.
Steven H. Eckstein, for appellant.
OPINION
M. POWELL, J.
{¶ 1} Appellant, Curtis Simmons, appeals his conviction and sentence in the
Madison County Court of Common Pleas for aggravated possession of drugs.
{¶ 2} On June 14, 2024, appellant was indicted on one count of aggravated
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possession of drugs with an accompanying firearm specification and two counts of having
weapons while under disability. The charges stemmed from an early-morning incident
during which appellant was found asleep in his car, parked on a roadway. Appellant was
ultimately arrested for OVI. During a search incident to arrest, appellant was found to
have nearly 28 grams of methamphetamine in his pocket, and a loaded 9 mm handgun
with the serial number scrapped off was found on the passenger's seat. During the
proceedings below, appellant requested a bill of particulars, which the State did not
provide.
{¶ 3} On September 13, 2024, appellant pled guilty to one count of aggravated
possession of drugs, a second-degree felony, and the two having weapons while under
disability charges and the firearm specification were dismissed. The trial court ordered a
presentence-investigative report ("PSI"). At sentencing, the trial court observed that
appellant had a lengthy criminal history dating back to 1997, which included five prior
misdemeanor convictions and eight prior felony convictions, that he had been sentenced
to prison on three separate occasions, and that only two of six probation periods were
successfully terminated. While referring to a 1998 conviction for attempted felonious
assault in Franklin County that resulted in a three-year prison term, the trial court
observed that,
And when I look at what the Courts have attempted to do,
they've tried lots of different approaches. One of those outlier
cases in 1998 was a felonious assault that worked its way into
an attempted felonious assault.
I don't know any of the details of that, but a three-year
penitentiary sentence . . . the makeup of the Franklin County
judiciary was probably a little different in 1998. But be that as
it may, that's still an unusual sentence in 1998. I rather
suspect there was some damage done such that somebody
thought . . . I'm just speculating. It's all I can tell you. There
was something that at least caused some judge to think that
prison was the answer out of the gate.
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You had, really, a fairly light misdemeanor related history prior
to that. And so that's a pretty heavy shot for your first goaround unless the facts made that seem appropriate. And
different judges are going to take different approaches.
{¶ 4} On November 20, 2024, the trial court sentenced appellant to an indefinite
prison term of six to nine years. Appellant subsequently moved to withdraw his guilty plea
and filed a notice of appeal a few days later. The trial court dismissed appellant's motion
for lack of jurisdiction due to the pending appeal.
{¶ 5} Appellant now appeals, raising three assignments of error.
Appellant's Guilty Plea was Knowingly, Intelligently, and Voluntarily Entered
{¶ 6} Assignment of Error No. 1:
APPELLANT'S GUILTY PLEA WAS NOT KNOWING,
INTELLIGENT, OR VOLUNTARY.
{¶ 7} Appellant argues that his guilty plea was not knowingly, intelligently, or
voluntarily made because (1) the trial court failed to inform him during the plea hearing
that it could consider his criminal record, including a 20-year-old conviction, in determining
the sentence to impose, and (2) he did not have the benefit of a bill of particulars prior to
entering his plea.
{¶ 8} "When a defendant enters a guilty 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, 1996-Ohio-179, ¶ 7. To ensure that a guilty plea to
a felony charge is knowing, intelligent, and voluntary, the trial court must engage the
defendant in a plea colloquy pursuant to Crim.R. 11(C). State v. Valdez, 2024-Ohio-3357,
¶ 13 (12th Dist.).
{¶ 9} Specifically, the "trial court must inform the defendant that he is waiving his
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privilege against compulsory self-incrimination, his right to jury trial, his right to confront
his accusers, and his right of compulsory process of witnesses." State v. Montgomery,
2016-Ohio-5487, ¶ 41; Crim.R. 11(C)(2)(c). In addition to these constitutional rights, the
trial court must determine that the defendant understands the nature of the charge, the
maximum penalty involved, and the effect of the plea. Id.; Crim.R. 11(C)(2)(a) and (b). "A
plea may be involuntary if 'the accused does not understand the nature of the
constitutional protections he is waiving . . . or because he has such an incomplete
understanding of the charge that his plea cannot stand as an intelligent admission of
guilt.'" Montgomery at ¶ 42, quoting Henderson v. Morgan, 426 U.S. 637, 645, fn. 13
(1976).
{¶ 10} The Ohio Supreme Court has addressed a trial court's compliance with
Crim.R. 11(C) and how an appellate court should review a trial court's plea colloquy. State
v. Dangler, 2020-Ohio-2765, ¶ 11. In general, "a defendant is not entitled to have his plea
vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply
with the provisions of Crim.R. 11(C)." Id. at ¶ 16. However, there are two exceptions to
this rule: (1) when the trial court fails to explain the constitutional rights set forth in Crim.R.
11(C)(2)(c) that a defendant waives by pleading guilty or no contest, and (2) "a trial court's
complete failure to comply with a portion of Crim.R. 11(C)." Id. at ¶ 15. Under either
exception, the defendant is not required to show prejudice. Id. at ¶ 14-16.
{¶ 11} The record shows that the trial court complied with Crim.R. 11(C) in taking
appellant's guilty plea, and appellant does not claim otherwise. The record also indicates
appellant told the trial court that he understood the rights and requirements the court read
to him. R.C. 2929.12(D)(2) specifically permits a trial court to consider an offender's
history of criminal convictions in determining an appropriate sentence. There is no
requirement in Crim.R. 11 that prior to accepting a guilty plea, the trial court inform a
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defendant whether a PSI will be ordered, inform the defendant that it will consider the PSI
and the defendant's criminal history, or inform the defendant of the R.C. 2929.12
seriousness and recidivism factors that it will consider at sentencing. State v. Deniro,
2017-Ohio-1025, ¶ 18, 22 (9th Dist.). "Crim.R. 11 applies only to the entry and acceptance
of the plea. It has no relevance to the exercise of the trial court's sentencing discretion at
that stage other than directing the court to proceed with or impose sentencing. Thus, it
can hardly be said that the rule imposes upon a trial judge a duty to explain what particular
matters he may, at a later date, determine are significant to the exercise of his discretion."
State v. Johnson, 40 Ohio St.3d 130, 134 (1988).
{¶ 12} As for the bill of particulars that the State never provided to appellant, the
record shows that appellant filed a pro se motion requesting the bill of particulars while
represented by counsel. "In Ohio, a criminal defendant has the right to representation by
counsel or to proceed pro se with the assistance of standby counsel. However, these two
rights are independent of each other and may not be asserted simultaneously." State v.
Martin, 2004-Ohio-5471, ¶ 32. In other words, a defendant does not have any right to
"hybrid representation," where the defendant is represented by counsel and
simultaneously acts as his own attorney. Id. at ¶ 31. Accordingly, the State was not
required to entertain appellant's pro se request for a bill of particulars as he was
represented by counsel. Furthermore, appellant never identifies how the lack of a bill of
particulars rendered his guilty plea less than knowing, intelligent, or voluntary.
{¶ 13} Appellant's first assignment of error is overruled.
Appellant Did Not Receive Ineffective Assistance of Counsel
{¶ 14} Assignment of Error No. 2:
THE DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY
SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION
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AND THE SIXTH AND FOURTEENTH AMENDMENTS.
{¶ 15} Appellant ostensibly argues he received ineffective assistance of counsel
during the plea hearing because his trial counsel did not object to going forward with the
guilty plea even though appellant did not have the benefit of a bill of particulars and the
trial court had failed to inform appellant that it could consider his criminal record in
determining the sentence to impose.
{¶ 16} A defendant who pleads guilty waives the right to claim ineffective
assistance of counsel, except to the extent that counsel's deficient performance caused
the plea to be less than knowing and voluntary. State v. Moxley, 2012-Ohio-2572, ¶ 18
(12th Dist.), citing State v. Spates, 1992-Ohio-130.
{¶ 17} To prevail on a claim for ineffective assistance of counsel, a defendant must
show that trial counsel's performance was deficient, that is, that the performance fell
below an objective standard of reasonableness, and that the defendant was prejudiced
as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984). In the context
of a guilty plea, the "prejudice" requirement focuses on whether counsel's constitutionally
ineffective performance affected the outcome of the plea process. Hill v. Lockhart, 474
U.S. 52, 59 (1985). In other words, the defendant must demonstrate there is a reasonable
probability that, but for his counsel's errors, he would not have pled guilty and would have
insisted on going to trial. State v. Byrd, 2022-Ohio-1364, ¶ 10 (12th Dist.). The failure to
satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel
claim. Id.
{¶ 18} Appellant has failed to show his attorney's performance was deficient. As
discussed under the first assignment of error, the trial court was not required to inform
appellant that it would consider his criminal history prior to accepting his guilty plea.
Appellant's criminal history and failure to respond to prior sanctions are sentencing factors
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explicitly set forth in R.C. 2929.12(D)(2) and (3). There was therefore nothing for trial
counsel to object to regarding the factors the trial court would consider in imposing
sentence. As for the lack of a bill of particulars, appellant does not assert that trial counsel
failed or refused to request a bill of particulars on appellant's behalf. And as stated above,
appellant's pro se request for a bill of particulars while represented by counsel was
improper and amounted to impermissible hybrid representation.
{¶ 19} Appellant has likewise failed to meet the prejudice prong. Regarding the
lack of a bill of particulars, appellant has "failed to demonstrate that his lack of knowledge
concerning the specific facts a bill of particulars would have provided him prejudiced him
in his ability to fairly defend himself or evaluate the State's plea offer." State v. Blanton,
2025-Ohio-237, ¶ 47 (4th Dist.). This was not a factually complex case as a law
enforcement officer found appellant asleep in his car on a roadway with nearly 28 grams
of methamphetamine in his pocket. Moreover, appellant does not allege he would have
insisted on going to trial and simply asserts that the prejudice prong is "shown by [his]
repeated requests for the bill of particulars" and his "filing a motion to withdraw his guilty
plea one week after the sentencing hearing." However, a defendant "must do more than
present 'post hoc assertions . . . about how he would have pleaded but for his attorney's
deficiencies.'" State v. Romero, 2019-Ohio-1839, ¶ 28. "In assessing whether it would be
rational for a defendant to go to trial instead of pleading guilty, the court should consider
the totality of circumstances." Id. at ¶ 29. Once again, this was not a factually complex
case and as a result of appellant pleading guilty to one felony count, the State agreed to
dismiss the other two felony counts as well as the firearm specification (and its mandatory
three-year prison term).
{¶ 20} Appellant's second assignment of error is overruled.
Appellant's Sentence Is Not Contrary to Law
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{¶ 21} Assignment of Error No. 3:
THE DEFENDANT-APPELLANT'S SENTENCE IS
CONTRARY TO LAW.
{¶ 22} Appellant argues that his sentence is contrary to law because the trial court
improperly "used a twenty-year-old conviction"—that is, the 1998 conviction for attempted
felonious assault in Franklin County that resulted in a three-year prison term—and
speculated as to the conditions surrounding that conviction. Appellant asserts that a 20-year-old conviction and a court's speculation regarding such conviction are not factors
listed in R.C. 2929.12 and therefore his sentence is based upon impermissible
considerations.
{¶ 23} A felony sentence is reviewed under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 10. Under that provision, an
appellate court may vacate or modify a prison sentence only if it clearly and convincingly
finds either that the record does not support the sentencing court's findings under certain
specified statutory provisions, or that the sentence is otherwise contrary to law. R.C.
2953.08(G)(2)(a) and (b); State v. Jones, 2020-Ohio-6729, ¶ 28. A sentence is not clearly
and convincingly contrary to law where the trial court considers the principles and
purposes of sentencing under R.C. 2929.11, weighs the seriousness and recidivism
factors in R.C. 2929.12, properly imposes postrelease control, and sentences the
defendant within the permissible statutory range. State v. Bullock, 2026-Ohio-693, ¶ 50
(12th Dist.).
{¶ 24} "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
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statute permits an appellate court to "independently weigh the evidence in the record and
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. See also State v. Venters,
2025-Ohio-3111, ¶ 54 (12th Dist.). However, an appellate court is not prohibited from
reviewing a sentence "when the claim is that the sentence was imposed based on
impermissible considerations—i.e., considerations that fall outside those that are
contained in R.C. 2929.11 and 2929.12." Bryant at ¶ 22. "[W]hen a trial court imposes a
sentence based on factors or considerations that are extraneous to those that are
permitted by R.C. 2929.11 and 2929.12, that sentence is contrary to law." Id.
{¶ 25} Upon reviewing the record, we find that appellant's sentence is not contrary
to law. Under R.C. 2929.14(A)(2)(a), appellant's six-to-nine-year prison term for seconddegree felony aggravated possession of drugs falls squarely within the statutory range.
The trial court properly imposed postrelease control sanctions. In imposing appellant's
sentence, the trial court stated both at sentencing and in its sentencing entry that it had
considered the overriding purposes of felony sentencing under R.C. 2929.11 as well as
the seriousness and recidivism factors set forth in R.C. 2929.12. The trial court found a
high risk of recidivism based upon appellant's criminal history, which included five prior
misdemeanor convictions and eight prior felony convictions, and appellant's failure to
respond to prior sanctions as evidenced by his three prior separate prison sentences and
the fact that only two of six probation periods were successfully terminated. The trial court
also found appellant's conduct more serious than conduct normally constituting the
offense because appellant was operating a car while under the influence of illegal
substance, in possession of a loaded firearm, and in possession of nearly 28 grams of
methamphetamine.
{¶ 26} Furthermore, contrary to appellant's assertions, his sentence was not based
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upon impermissible considerations. An offender's history of criminal convictions is a
sentencing factor explicitly set forth in R.C. 2929.12(D)(2). The statute does not limit the
length of time for an offender's criminal history, and in fact may also include an offender's
delinquency history as a juvenile if such record exists. As noted by the trial court, appellant
has a lengthy criminal history that dates back to 1997, and his first felony conviction was
in 1998 for attempted felonious assault for which he was sentenced to prison. Although
the trial court began the recitation of appellant's criminal record by briefly pondering about
the conditions surrounding his 1998 conviction, the record further shows that the court
then went on to detail and consider the rest of his extensive criminal history. In other
words, the trial court did not determine appellant's prison sentence based solely on
appellant's oldest felony conviction and speculation regarding that conviction.
{¶ 27} Appellant's third assignment of error is overruled.
{¶ 28} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
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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 Madison 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/ Robert A. Hendrickson, Presiding Judge
/s/ Robin N. Piper, Judge
/s/ Mike Powell, Judge
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