The opinion
Karpinski, Judge,
concurring.
I concur in the majority opinion but write separately to respond to the dissent. I note that the Supreme Court of Ohio reviewed and did not overrule
Post
when the court made its decision in
Green.
Thus, we must decide at what discrete point the case at bar is to be located on the spectrum created by
Post
and
Green.
In
Post
the court found that R.C. 2945.06 was satisfied because the parties explicitly agreed to allow the state to present a statement of facts in fulfillment of its evidentiary burden. In
Green,
on the other hand, the prosecutor recited the facts and proffered reports and photographs. The Supreme Court found such a recitation inadequate, however, because relying on a prosecutor’s statement
“without the explicit consent of the defense”
was inherently dangerous. As illustration, the court pointed out that the prosecutor’s statement included “material misrepresentations and gross inaccuracies.” In
State v. Shakoor, ante,
which the dissent also cites, there was no statement of facts, nor did the defense agree to the omission. The issue, therefore, turned on what kind of evidence would satisfy R.C. 2945.06.
While there was no statement of facts in the case at bar, the defense explicitly acknowledged that there was a factual basis for the charge. Such an acknowledgment by the defense is more akin to the facts in
Post,
where the defense consented to the omission of witness testimony.
More importantly, in acknowledging a factual basis for the charge, the defense invited and waived any claim of error the court may have made in not proceeding to take evidence. The Supreme Court of Ohio has previously clarified that it has “never held that the failure to comply with the R.C. 2945.06 witness-examination requirement is a jurisdictional defect.”
State ex rel. Collins v. Leonard
(1997), 80
*66
Ohio St.3d 477, 687 N.E.2d 443 . If, as the dissent contends, there was an error in the case at bar, it was procedural and invited or waived by the defense.