[Cite as State v. Phelps, 2026-Ohio-3984.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: C.A. No. 30765
Appellee :
: Trial Court Case No. 2025 CR 01729
v. :
: (Criminal Appeal from Common Pleas
JOE PHELPS JR. : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
Pursuant to the opinion of this court rendered on October 9, 2026, the judgment of
the trial court is affirmed in part, reversed in part, vacated in part, and the matter is remanded
for further proceedings consistent with the opinion.
Costs to be paid as follows: 50% by the appellant and 50% by the appellee.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
CHRISTOPHER B. EPLEY, JUDGE
TUCKER, J., and HANSEMAN, J., concur.
OPINION
MONTGOMERY C.A. No. 30765
DAVID R. MILES, Attorney for Appellant
MICHAEL P. ALLEN, Attorney for Appellee
EPLEY, J.
{¶ 1} Joe Phelps Jr. appeals from his convictions in the Montgomery County Court of
Common Pleas for attempted murder, aggravated burglary, aggravated robbery, felonious
assault, and having weapons while under disability, plus attendant firearm and repeat violent
offender specifications. He claims that several of his convictions were against the manifest
weight of the evidence because he had acted in self-defense, that the trial court erred when
it held a jury waiver hearing after the jury trial had concluded, and that the court failed to give
certain advisements required by R.C. 2903.42(A)(1)(a) regarding the violent offender
database. For the following reasons, the trial court’s judgment is affirmed in part, reversed
in part, and vacated in part, and the matter is remanded for further proceedings consistent
with this opinion.
I. Facts and Procedural History
{¶ 2} At approximately 1:00 p.m. on June 28, 2025, A.A. was shot multiple times in
his home on Middlehurst Lane in Dayton. Almost an hour later, a postal service mail carrier
heard A.A.’s call for help, called 911, and provided emergency aid. A.A. told the mail carrier
that he had been shot by “Old School Joe.” A.A. later told the police that Phelps had shot
him. During the police investigation, officers determined that a bullet had gone through the
west wall of A.A.’s residence and into the east wall of the neighboring house, where D.S.
resided. D.S.’s window, window blinds, and kitchen cabinet were damaged by the bullet.
2
{¶ 3} On July 11, 2025, Phelps was indicted on aggravated robbery (serious physical
harm), felonious assault (serious physical harm), and felonious assault (deadly weapon);
each offense included a three-year firearm specification. In September 2025, Phelps was
indicted on four additional charges: attempted murder, aggravated burglary, improperly
discharging a firearm at or into a habitation, and having weapons while under disability; all
but the weapons-under-disability charge included a three-year firearm specification and a
repeat violent offender specification. Phelps pled not guilty to both indictments and filed
notices of his intent to argue self-defense at trial. A jury trial was scheduled for December 15,
2025.
{¶ 4} On December 1, 2025, the day before the final pretrial conference, defense
counsel filed a motion in limine seeking to preclude the State from eliciting any evidence at
trial regarding Phelps’s prior conviction for murder in Montgomery C.P. No. 79-CR-1223.
The motion acknowledged that “proof of the prior conviction is required for the Having
Weapons Under Disability charges as well as the Repeat Violent Offender Specification.” It
indicated that Phelps was “prepared to waive a jury as to that count and as to that
specification and stipulate to the prior conviction.” Several days later, counsel filed an
amended motion to correct a typographical error regarding the date that Phelps’s parole had
ended. The State opposed the motion, asserting that the prior conviction was probative as
to Phelps’s self-defense claim.
{¶ 5} Phelps did not waive his right to a jury trial on the charge of having weapons
while under disability prior to the commencement of the jury trial, nor did the trial court rule
on the motion in limine prior to trial.
{¶ 6} Phelps’s trial began on December 15, as scheduled, and the jury was
empaneled that day. Before opening statements and outside the presence of the jury, the
3
trial court preliminarily granted the motion in limine because Phelps had been released from
parole for more than ten years. The court indicated that the ruling could change if Phelps
testified and opened the door to its admissibility. During this discussion, the prosecutor told
the court that there was a stipulation regarding the prior conviction for the repeat violent
offender specification and that it would be provided to the court.
{¶ 7} During the jury trial, the charge of having weapons while under disability and
Phelps’s possible waiver of a jury trial on that offense went unmentioned. There was no
discussion about the offense outside the presence of the jury, and the jury was neither told
about nor instructed on that charge.
{¶ 8} During the presentation of evidence, the State offered the testimony of A.A., the
postal service mail carrier, a responding police officer, D.S., three evidence technicians, two
detectives, and the surgeon who operated on A.A., as well as numerous exhibits. Phelps
testified on his own behalf and asserted that he had acted in self-defense.
{¶ 9} After both sides had rested, the court instructed the jury on attempted murder,
aggravated burglary, aggravated robbery, improperly discharging a firearm at or into a
habitation, both counts of felonious assault, and the attached firearm specifications. The jury
also received instructions regarding self-defense. After deliberating, the jury acquitted
Phelps of improperly discharging a firearm at or into a habitation but found him guilty of the
remaining charges and firearm specifications.
{¶ 10} Immediately after the jury was discharged, the court asked the parties if there
was anything to address before adjourning for the day. The State mentioned that there were
repeat violent offender specifications attached to several charges and that there was a
stipulation to Phelps’s prior conviction, which the State had marked as an exhibit to provide
4
to the court. The prosecutor stated, “That along with the testimony would be everything the
State would submit for that.” The trial court and counsel then had the following exchange:
THE COURT: Was there another – was it just the RVO specs, or was
there one more?
[DEFENSE COUNSEL]: It was having weapons under disability.
THE COURT: Right. Did we ever do a jury waiver on that?
[DEFENSE COUNSEL]: I don’t think you did.
THE COURT: I don’t think so either. I think we need to still do that.
Okay.
[DEFENSE COUNSEL]: Do that after the trial?
THE COURT: Well, I mean, you guys talked about it. I mean, that was
the plan.
[DEFENSE COUNSEL]: It was the plan. I agree.
THE COURT: Yeah. Okay. So we need to set a date for these. . . .
THE COURT: Okay. And then we need to do the jury waiver on the
weapons under disability part. And are you—would you be submitting
additional evidence on that charge as well?
[DEFENSE COUNSEL]: No.
THE COURT: Okay. Okay. So we can—we can quickly take care of
that, then, tomorrow. . . .
[PROSECUTOR]: Sure.
THE COURT: Okay?
5
[DEFENSE COUNSEL]: I would just, for the record, I guess, object to
him waiving a jury after we’ve already had the trial. I think we should have
done that before we had the trial.
THE COURT: I hear you. I think there was an agreement amongst
everyone that the Court was going to be, obviously, trying the RVO specs,
because that’s what we have to do, and that the weapons under disability
would be done after, so—
[DEFENSE COUNSEL]: I will let that—
THE COURT: I mean, yes, typically that is done ahead of time. And we
all missed it in this, so I guess, you all let me know your thoughts on that. But
I plan to go forward to go over the jury waiver on that, since that was bifurcated
off of the other charges that were presented to the jury. So let me know
tomorrow—
[DEFENSE COUNSEL]: Okay.
THE COURT: —on that. Okay? All right.
Tr. 484-487.
{¶ 11} When court reconvened the following morning, the trial court stated that it had
done research on the jury waiver issue and that “it is okay for us to do that now.” The court
told Phelps that “there was a decision that was made for the weapons under disability charge
to be tried to the Court.” It explained that he had his jury trial, “but your attorneys opted to
have the having weapons under disability tried to the Court so that the jury didn’t hear about
your prior conviction. . . . And so in order for the Court to make a decision on the having
weapons under disability charge, you have to waive your right to a jury trial on that charge.”
Phelps said okay and agreed that was what he wanted to do.
6
{¶ 12} The court proceeded to notify Phelps of his right to a jury trial on having
weapons under disability. Defense counsel did not renew her objection. Instead, she
reiterated to Phelps that he had a right to a jury trial “like we did yesterday” but told him that
waiving the jury was “the best thing to do.” After Phelps stated that he was willing to waive
a jury trial on having weapons while under disability, the court found that his waiver was
made knowingly, intelligently, and voluntarily. Phelps and the court signed a jury waiver form.
{¶ 13} After the waiver form was signed, the State presented written stipulations
(State’s Ex. 103), including a stipulation to Phelps’s prior convictions for aggravated murder
and aggravated robbery in Montgomery C.P. No. 1997 CR 1223, as well as a copy of the
judgment entry in the prior case (State’s Ex. 104). The court found Phelps guilty of having
weapons while under disability and the two repeat violent offender specifications. The jury
waiver was filed shortly after court adjourned.
{¶ 14} A sentencing hearing was held on January 22, 2026. After merging two firearm
specifications and the two repeat violent offender specifications, the trial court imposed an
aggregate sentence of a mandatory minimum term of 33 years to a maximum term of 38½
years in prison.
{¶ 15} Phelps appeals from his convictions, raising three assignments of error.
II. Manifest Weight of the Evidence and Self-Defense
{¶ 16} In his first assignment of error, Phelps contends that his convictions for
attempted murder, aggravated burglary, aggravated robbery, and felonious assault were
against the manifest weight of the evidence. He argues that the jury lost its way when it
rejected his claim of self-defense.
{¶ 17} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
7
believable or persuasive.” State v. Wilson, 2009-Ohio-525, ¶ 12 (2d Dist.). “When reviewing
an argument challenging the weight of the evidence, an appellate court “must defer to the
fact-finder’s witness-credibility determinations” and may not substitute its view for that of the
trier of fact. State v. Reillo, Slip Opinion No. 2026-Ohio-2701, ¶ 38. Rather, we review the
entire record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether, in resolving conflicts in the evidence, the finder of fact
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Thompkins, 1997-Ohio-52, ¶ 25, quoting
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
{¶ 18} “In weighing the evidence, the court of appeals must always be mindful of the
presumption in favor of the finder of fact.” Eastley v. Volkman, 2012-Ohio-2179, ¶ 21. “Mere
inconsistencies” are insufficient to overcome the deference afforded to the factfinder’s
credibility determinations. Reillo at ¶ 32. An appellate court may nevertheless conclude that
the factfinder lost its way in crediting a witness’s testimony when there is “internally
contradictory testimony as to material facts, direct impeachment, or fantastical testimony
clearly undermines a witness’s credibility on a cold record.” Id. at ¶ 31. A judgment of
conviction should be reversed as being against the manifest weight of the evidence only in
exceptional circumstances. Martin at 175.
{¶ 19} When self-defense is raised, different standards apply depending on whether
the defendant responded with deadly or non-deadly force. State v. Rothermel, 2014-Ohio3168, ¶ 12 (2d Dist.). “Deadly force” is defined as “any force that carries a substantial risk
that it will proximately result in the death of any person.” R.C. 2901.01(A)(2). The use of a
gun constitutes deadly force. State v. Barker, 2022-Ohio-3756, ¶ 21 (2d Dist.).
8
{¶ 20} To warrant an instruction on self-defense, there must be evidence presented
by the defendant that (1) he or she was not at fault in creating the violent situation, (2) the
defendant had a bona fide belief that he or she was in imminent danger of death or great
bodily harm and that the only way to escape was the use of force, and (3) that the defendant
did not violate any duty to retreat. State v. Messenger, 2022-Ohio-4562, ¶ 14; State v. Lovett,
2022-Ohio-1693, ¶ 41 (2d Dist.). A person no longer has a duty to retreat before using force
in self-defense “if that person is in a place in which the person lawfully has a right to be.”
R.C. 2901.09(B). Accordingly, the law has “remove[d], in most cases, the duty to retreat
before using self-defense.” State v. Degahson, 2022-Ohio-2972, ¶ 15 (2d Dist.); State v.
Trigg, 2023-Ohio-3660, ¶ 32 (2d Dist.).
{¶ 21} If the defendant puts forth evidence that he or she acted in self-defense, the
prosecution must prove beyond a reasonable doubt that the accused did not use force in
self-defense. R.C. 2901.05(B)(1); Lovett at ¶ 40. The State’s burden of disproving a
defendant’s self-defense claim beyond a reasonable doubt is subject to manifest weight
review on appeal. State v. Knuff, 2024-Ohio-902, ¶ 208 (a self-defense claim is subject to
review for manifest weight, but not sufficiency of the evidence). Manifest-weight review is
proper because a defendant claiming self-defense does not seek to negate an element of
the crime, but rather to relieve himself or herself from culpability. State v. Butler, 2023-Ohio3504, ¶ 17 (2d Dist.).
{¶ 22} Circumstantial evidence has the same probative value as direct evidence.
State v. Jenks, 61 Ohio St.3d 259, 272 (1991), citing State v. Nicely, 39 Ohio St.3d 147
(1988); State v. St. John, 2019-Ohio-650, ¶ 49 (2d Dist.). In some cases, “circumstantial
evidence may be more certain, satisfying, and persuasive than direct evidence.” State v.
Jackson, 57 Ohio St.3d 29, 38 (1991).
9
{¶ 23} According to the State’s evidence at trial, in June 2025, A.A. and Phelps had
known each other for approximately three years. A.A. called him “Old School Joe.” Phelps
was buying heroin from A.A., and he would come to A.A.’s home every one or two weeks.
Phelps typically called before he came over.
{¶ 24} A.A. testified that at approximately 1:00 p.m. on June 28, 2025, he heard
someone knocking on his side door (the one A.A. used as the main entrance) and saw
Phelps on the monitor for his home security system. Phelps was “fidgety,” had his hand in
his pocket, and had not called first; A.A. testified that “something wasn’t right with him.” A.A.
had guns in his home for protection (the police located a gun in A.A.’s bedroom and a second
gun in a bedroom that was used for storage), but A.A. answered the door unarmed and
allowed Phelps to enter. A.A. locked the door behind Phelps, as he always did.
{¶ 25} Phelps asked for drugs, and A.A. agreed to provide them. A.A. asked Phelps
about money that Phelps already owed him, but A.A. had not previously had any problem
with Phelps’s paying him. When A.A. turned to get the drugs (about a half-gram to a gram),
Phelps “started shooting nonstop.” A.A. denied that he had threatened Phelps, had a
weapon in his hands, or had a weapon near him. A.A. adamantly denied that he was going
to sexually assault Phelps as a “tax.”
{¶ 26} A.A. fell forward as he was shot in the back. He saw Phelps step over him and
take a bag with 40 or 50 grams of heroin (worth a few thousand dollars) from the counter
separating the kitchen and living room. Phelps then stepped back over A.A. and left.
Phelps’s legs felt paralyzed, and he had injured his hands and wrists when he fell.
{¶ 27} After approximately 50 minutes, A.A. heard his mail carrier outside and called
for help. When the mail carrier approached the side door and asked what was going on, A.A.
replied that he had been shot.
10
{¶ 28} The mail carrier entered A.A.’s home and found him lying on his stomach,
covered in blood, and wearing black shorts and no shirt. She observed gunshot wounds to
his right shoulder, the middle of his back, and the side of his thigh. The mail carrier called
911, grabbed a towel, applied pressure to the wounds, and gave him water. A.A. could not
move, and he said that he could not feel his legs. He told the mail carrier that he had been
robbed and that “Old School Joe” had done it. The mail carrier did not observe any weapons
while she assisted A.A.
{¶ 29} Officer Benjamin Campbell was the first officer to respond. He heard a female
voice calling that they were inside and she needed help. Upon entering, the officer saw A.A.
lying on his stomach in the hallway between the living area and the kitchen; the mail carrier
was holding towels on his back to stop the bleeding. Campbell observed three gunshot
wounds. He did not observe any weapons. After medics arrived, A.A. was taken to the
hospital, where he underwent surgery. A.A.’s wounds would have been fatal had he not
received treatment at the hospital.
{¶ 30} Detective Zachary Williams forensically examined the digital video recording
device (“DVR”) from A.A.’s home. A.A.’s surveillance videos showed a male arriving on a
bicycle and entering the house while holding something in his right pocket. The man left less
than a minute later, holding a pistol in his hand; he rode away on his bicycle. Williams
continued watching the video and saw the mail carrier and later the police arrive.
{¶ 31} Detective Josh Erwin learned through a neighbor that Phelps was the possible
perpetrator. The detective located a photo of Phelps and compared it with the man in the
surveillance video. The man on the video resembled Phelps. On July 1, 2025, Erwin spoke
with A.A. at the hospital. A.A. initially did not divulge that he was selling drugs to Phelps and
that Phelps had a $100 debt, but he ultimately disclosed it. A.A. told Erwin that Phelps was
11
the shooter and that he was “100,000 percent” positive. A.A. also identified Phelps as the
shooter at trial.
{¶ 32} Phelps testified in his own defense at trial. He stated that he began buying
fentanyl after he hurt his back and the pain clinic from which he was receiving treatment
closed. He purchased about a gram at a time for $60 from various drug houses, including
A.A.’s home. Phelps went to A.A.’s home about once or twice per month, when closer
sources did not have anything. He was aware that A.A. had cameras on the front and side
of his home and that “[s]ometimes he [A.A.] comes to the door with a gun.” Phelps had seen
A.A. with two guns.
{¶ 33} According to Phelps, on June 28, 2025, he rode his bicycle to A.A.’s home to
get drugs. Phelps owed A.A. about $100, but A.A. had previously been willing to give him
drugs when he did not have money. A.A. answered the door with a gun in his hand. After
Phelps entered A.A.’s home, A.A. asked him if he had the money he owed. Phelps
responded that he did not but would get it to A.A. in a couple of days. A.A. told Phelps, “If
you don’t have my money I’m going to put a tax on you.” Sometimes the “tax” was additional
money, but that day, A.A. told Phelps that the tax was “keisters,” meaning A.A. was going to
try to have sex with him.
{¶ 34} A.A. took a bag of drugs and hit Phelps in the chest with it. Phelps kept the
drugs. A.A. then reached for Phelps. Phelps testified that he believed that A.A. was going to
rape or kill him. Phelps noticed that A.A. had put his gun on the table. He grabbed A.A.’s
gun, ran to the door, and tried to open it, but it was locked. Phelps then “started shooting,
because I know he got other guns in the house. So I started shooting. And I shot about four
or five times, and then I opened the door and I took off.” Tr. 345. Phelps stated that A.A. was
turning away from him, toward the bedrooms, before he began firing.
12
{¶ 35} Phelps did not contact the police after the shooting. He explained that his
cousin’s girlfriend had stepped on his phone and he was scared that he would get in trouble.
Phelps denied that he had brought a gun to the house, that he had intended to steal drugs
or money, and that he had stolen anything. He stated that he had been given three grams
of drugs and that he had put them in his pocket with the gun when he left. On his way home,
he fell off his bike and lost the gun. He used the drugs upon returning home.
{¶ 36} “Self-defense claims generally involve an evaluation of witness credibility.”
State v. Rhoades, 2025-Ohio-2358, ¶ 16 (2d Dist.). It was the province of the jury, as the
trier of fact, to assess the witnesses’ credibility and determine whether the State had proven
beyond a reasonable doubt that Phelps had committed the charged offenses and had not
acted in self-defense. In reaching its verdict, the jury was free to believe all, part, or none of
the witnesses’ testimony. State v. Peterson, 2021-Ohio-3947, ¶ 27 (2d Dist.).
{¶ 37} Upon review of the evidence, we cannot conclude that the jury lost its way
when it ostensibly credited the State’s witnesses and found that Phelps had not acted in
self-defense when he shot A.A. Within a minute, Phelps had entered A.A.’s home, had shot
an unarmed man multiple times in the back as he was walking away, and had left with drugs
and a gun. Although the door was locked when Phelps first tried to leave and A.A. had other
guns in the home, the jury could have reasonably concluded that Phelps created the violent
situation and/or that he lacked a bona fide belief that he was imminent danger when he shot
A.A. Moreover, we cannot conclude that A.A.’s testimony regarding what had occurred was
internally contradictory as to material facts, was impeached, or was so fantastical that his
credibility was clearly undermined. Phelps’s convictions for attempted murder, aggravated
burglary, aggravated robbery, and felonious assault were not against the manifest weight of
the evidence.
13
{¶ 38} Phelps’s first assignment of error is overruled.
III. Jury Waiver for Having Weapons While Under Disability
{¶ 39} In his second assignment of error, Phelps claims that “the trial court erred in
failing to follow the provisions of the United States Constitution, the Ohio Revised Code, and
the Ohio Rules of Criminal Procedure relating to the voluntary waiver of . . . his right to trial
by jury on the having a weapon under disability charge.” He asserts that he could not waive
his right to a jury trial on that charge after the jury trial had concluded. We agree.
{¶ 40} With limited exceptions, a criminal defendant enjoys the constitutional right to
a jury trial. U.S. Const., amend. VI; Ohio Const., art. I, § 5; R.C. 2945.17. But that right may
be waived. E.g., State v. Bays, 87 Ohio St.3d 15, 19 (1999). The decision whether to waive
a jury trial belongs to the defendant, not defense counsel. State v. Lawson, 2021-Ohio-3566,
¶ 82.
{¶ 41} In Ohio, Crim.R. 23 and R.C. 2945.05 govern a felony defendant’s waiver of
the right to a jury trial. See State v. White, 2020-Ohio-5544, ¶ 57 (2d Dist.). Crim.R. 23(A)
provides, in pertinent part: “In serious offense cases the defendant before commencement
of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury.
Such waiver may also be made during trial with the approval of the court and the consent of
the prosecuting attorney.” (Emphasis added.)
{¶ 42} R.C. 2945.05 sets forth the manner in which a defendant may waive this right.
State v. Lomax, 2007-Ohio-4277, ¶ 6. To be effective, the waiver must be “(1) in writing,
(2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open
court.” Lomax at ¶ 9; see R.C. 2945.05. Courts must strictly comply with these requirements.
State v. Slaughter, 2022-Ohio-3946, ¶ 13; State v. Grier, 2010-Ohio-5751, ¶ 15 (2d Dist.).
Further, “[a] jury waiver must be voluntary, knowing, and intelligent.” Bays at 19.
14
{¶ 43} In this case, Phelps’s jury trial began on December 15, 2025, and the jury was
empaneled and sworn the same day. Phelps did not waive his right to a jury trial on the
charge of having weapons while under disability either before his jury trial commenced or
during his jury trial, as required by Crim.R. 23(A). Defense counsel could not waive this right
for Phelps, and nothing in the record suggests that Phelps or defense counsel said or did
anything to delay a jury waiver hearing until after the jury trial was completed. To the
contrary, as stated by the trial court, the court and the parties simply “missed it.” At oral
argument, the State acknowledged that the oversight was not attributable to Phelps.
{¶ 44} Whether Phelps could waive his right to a jury trial on having weapons while
under disability after the conclusion of his jury trial depended, in large part, on when his trial
for having weapons while under disability began. Jeopardy attaches, precluding subsequent
criminal proceedings, when (1) the jury is empaneled and sworn in a jury trial or (2) the judge
starts taking evidence in a bench trial. State v. Soto, 2019-Ohio-4430, ¶ 16.
{¶ 45} The State proceeded to trial on the weapons-under-disability charge on
December 15, 2025, along with the six charges for which the parties intended the jury to be
the factfinder. The trial court did not sever the charge of having weapons while under
disability from the other charges, as permitted by Crim.R. 14. Although the parties and the
trial court apparently discussed that the trial court, not the jury, would be the factfinder for
the charge of having weapons while under disability, the trial did not schedule a separate
trial for that offense, nor is there any suggestion that the parties expected to have a separate
trial on having weapons while under disability at a later date.
{¶ 46} Moreover, it is apparent that the State’s evidence at the jury trial was
presented, in part, to establish that Phelps had committed the offense of having weapons
while under disability. Phelps was charged with having weapons while under disability in
15
violation of R.C. 2923.13(A)(2), which provides that “[u]nless relieved from disability under
operation of law or legal process, no person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance” if they have been convicted of a felony offense of violence.
The State’s evidence of Phelps’s conduct on June 28, 2025—which was presented only
during the jury trial—demonstrated that he had carried, used, or had a firearm for purposes
of R.C. 2023.13(A). Only the evidence related to Phelps’s prior conviction for a felony
offense of violence was later (after the jury had been discharged) presented to the court
alone.
{¶ 47} Jeopardy attached when the State proceeded to trial on December 15, 2025.
Phelps had not waived his right to a jury trial on the charge of having weapons while under
disability (or any other) offense before the jury was empaneled and sworn. When the jury
trial ended without a jury waiver, the trial court lost the ability to obtain a jury waiver for any
offense from Phelps. See Crim.R. 23(A). Consequently, the court should not have held a
jury waiver hearing for the charge of having weapons while under disability on December
18, 2025, and the written waiver signed by Phelps at that hearing had no legal effect.
{¶ 48} We further note that although Phelps ostensibly waived his right to a jury trial
on having weapons while under disability in writing and in open court on December 18, 2025,
the trial court proceeded to accept the State’s two additional exhibits (the stipulation and
prior judgment of conviction) and to find him guilty prior to the waiver form’s filing with the
clerk. Even if Phelps could have waived his right to a jury trial at that hearing, it would not
have been effective until his written waiver had been filed. See R.C. 2945.05; Lomax, 2007-Ohio-4277, at ¶ 9.
{¶ 49} Phelps’s second assignment of error is sustained, and his conviction for having
weapons while under disability must be vacated. However, our ruling has no effect on
16
Phelps’s aggregate sentence, as his 60-month sentence for having weapons while under
disability was ordered to be served concurrently with his lengthy sentence for attempted
murder.
IV. Violent Offender Database Notifications
{¶ 50} In his third assignment of error, Phelps claims that the trial court erred in failing
to give certain advisements as required by R.C. 2903.41(A)(1)(a). He contends that the court
made only “a vague reference to a hearing” and fell short of the statutory requirements.
{¶ 51} “Senate Bill 231, known as Sierah’s Law, established a statewide violent
offender database, along with the legal presumption that offenders convicted of certain
violent crimes must enroll in the database for a period of 10 years following their release
from prison.” State v. Williams, 2021-Ohio-1340, ¶ 128 (2d Dist.), citing R.C. 2903.41
through 2903.43. As relevant to Phelps, the term “violent offender” includes a person who is
convicted of attempted murder. R.C. 2903.41(A)(1)(a) and (b).
{¶ 52} Individuals who are classified as violent offenders are presumed to be required
to enroll in the violent offender database with respect to the classifying offense.
R.C. 2903.42(A)(1)(a). The presumption is rebuttable, and the sentencing court must inform
the offender before sentencing of the presumption, of the offender’s right to file a motion to
rebut the presumption, of the procedure and criteria for rebutting the presumption, and of
the possible outcome. R.C. 2903.42(A)(1)(a).
{¶ 53} To rebut the presumption, a violent offender must file a motion with the trial
court, prior to or at sentencing, asserting that he or she was not the principal offender in the
commission of the classifying offense and requesting that the court not require enrollment
in the violent offender database. R.C. 2903.42(A)(2)(a). The offender bears the burden to
establish by a preponderance of the evidence that he or she was not the principal offender
17
in the commission of the offense. R.C. 2903.42(A)(4). If the violent offender proves that he
or she was not the principal offender, the court must “continue the hearing for the purpose
of determining whether the offender, notwithstanding the rebuttal of the presumption, should
be required to enroll in the violent offender database and have all VOD duties with respect
to that offense.” R.C. 2903.42(A)(4)(a).
{¶ 54} We have held that “the failure to comply with these requirements will result in
the reversal of a trial court’s order to enroll in the violent offender database and a
corresponding order to provide, on remand, the appropriate advisements and the
opportunity to file a motion to rebut the presumption for enrollment.” State v. Smith, 2026-Ohio-144, ¶ 10 (2d Dist.). Notably, in Smith, the defendant had pled guilty to domestic
violence, felonious assault, and kidnapping, and he was the sole offender. Other courts have
similarly held that the trial court’s obligations are mandatory and have reversed due to failure
to comply with the notification requirements, even when the defendant is the sole offender.
See, e.g., State v. Williams, 2021-Ohio-3579, ¶ 42-44 (5th Dist.), rev’d on other grounds,
2022-Ohio-1352.
{¶ 55} In this case, the trial court provided notifications under R.C. 2903.41(A)(1)(a)
at the sentencing hearing, not prior to it. The court informed Phelps orally and in writing of
his duties to register as a violent offender and that he “can also request a hearing on this
violent offender notification.” However, it did not inform Phelps of his right to file a motion to
rebut the presumption of enrollment, of the procedure and criteria for rebutting the
presumption, and of the effect of a rebuttal and the post-rebuttal hearing procedures and
possible outcomes. We therefore agree with Phelps that the trial court erred by failing to
timely give all the notifications required by R.C. 2903.42(A)(1)(a).
{¶ 56} Phelps’s third assignment of error is sustained.
18
V. Conclusion
{¶ 57} Phelps’s conviction for having weapons while under disability is vacated. The
portion of the trial court’s judgment pertaining to Phelps’s duty to enroll in the violent offender
database is reversed, and the matter is remanded for the trial court to provide the
notifications under R.C. 2903.42(A)(1)(a) and an opportunity to file a motion to rebut the
statutory presumption that he must enroll in the violent offender database. In addition, the
matter is remanded for a nunc pro tunc entry to reflect that the sentences for attempted
murder and aggravated robbery were ordered to be served consecutively. Phelps’s
aggregate sentence of 33 to 38½ years in prison remains unchanged. In all other respects,
the trial court’s judgment is affirmed.
TUCKER, J., and HANSEMAN, J., concur.
19