[Cite as State v. Baker, 2013-Ohio-862.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 32 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ROBERT BAKER ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 194
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Edward A. Czopur DeGenova & Yarwood, Ltd. 42 North Phelps St. Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: March 8, 2013 [Cite as State v. Baker, 2013-Ohio-862.] WAITE, J.
{¶1} Counsel for Appellant Robert Baker has filed a no merit brief and a
request to withdraw as counsel pursuant to State v. Toney, 23 Ohio App.2d 203, 262
N.Ed.2d 419 (1970). For the following reasons, counsel’s motion to withdraw is
sustained and Appellant’s conviction and sentence are affirmed.
{¶2} On February 24, 2011, Appellant was indicted on twenty-five charges
including eleven counts of rape, eleven counts of gross sexual imposition, as well as
counts of attempted gross sexual imposition, voyeurism and disseminating matter
harmful to juveniles. There were five victims referred to in the indictment, all of whom
were juveniles when the crimes occurred. The rape counts were punishable by life in
prison. The remaining charges were felonies of the third, fourth and fifth degree.
Counsel was appointed. On December 28, 2011, Appellant had a hearing in which
he pleaded guilty to all the charges pursuant to a Crim.R. 11 plea agreement, in
exchange for a removal of the life specifications of the rape charges, and in
exchange for a jointly agreed sentence recommendation of 10 years. The court
advised Appellant of all the constitutional and nonconstitutional rights he was waiving
by entering the plea, and then accepted his guilty pleas. A sentencing hearing was
held on January 19, 2012. In a judgment entry dated January 23, 2012, the trial
court imposed the agreed sentence of 10 years in prison. This appeal followed.
{¶3} Counsel is asking to withdraw pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and pursuant to our ruling in Toney,
supra. “ ‘It is well settled that an attorney appointed to represent an indigent criminal
defendant on his or her first appeal as of right may seek permission to withdraw upon -2-
a showing that the appellant's claims have no merit. To support such a request,
appellate counsel must undertake a conscientious examination of the case and
accompany his or her request for withdrawal with a brief referring to anything in the
record that might arguably support the appeal. The reviewing court must then
decide, after a full examination of the proceedings, whether the case is wholly
frivolous.’ ” (Citations omitted.) State v. Odorizzi, 126 Ohio App.3d 512, 515, 710
N.E.2d 1142 (1998).
{¶4} In Toney, this Court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is
frivolous and that there is no assignment of error which could be
arguably supported on appeal, he should so advise the appointing court
by brief and request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the -3-
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
6. Where the Court of Appeals makes such an examination and
concludes that the appeal is wholly frivolous, the motion of an indigent
appellant for the appointment of new counsel for the purposes of appeal
should be denied.
7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as
counsel of record should be allowed, and the judgment of the trial court
should be affirmed.
Id. at syllabus.
{¶5} A plea of guilty or no contest must be made knowingly, intelligently and
voluntarily for it to be a valid and enforceable plea. State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶25. In order to ensure that a plea in a felony
case is knowing, intelligent and voluntary, Crim.R. 11(C)(2) requires the trial judge to
address the defendant personally to review the rights that are being waived and to
discuss the consequences of the plea. Crim.R. 11(C)(2)(c) requires the court to
review five constitutional rights that are waived when entering a guilty or no contest
plea in a felony case: the right to a jury trial, the right to confront one's accusers, the
privilege against compulsory self-incrimination, the right to compulsory process to
obtain witnesses, and the right to require the state to prove guilt beyond a reasonable
doubt. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶19. -4-
A trial court must strictly comply with Crim.R. 11(C)(2)(c) when advising the
defendant of the constitutional rights that are being waived in entering a felony plea.
Id. at syllabus. Prejudice is presumed if the court fails to inform the defendant of any
of the constitutional rights listed in Crim.R. 11(C)(2)(c). Id. at ¶29. A trial court's
acceptance of a guilty or no contest plea will be affirmed only if the trial court
engaged in meaningful dialogue with the defendant which, in substance, explained
the pertinent constitutional rights “in a manner reasonably intelligible to that
defendant.” State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph
two of the syllabus; see also Veney, supra, at ¶27.
{¶6} The nonconstitutional requirements of Crim.R. 11 are subject to review
for substantial compliance rather than strict compliance. State v. Griggs, 103 Ohio
St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶11-12. “Substantial compliance means
that under the totality of the circumstances, the defendant subjectively understands
the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990). Further, “failure to comply with nonconstitutional
rights will not invalidate a plea unless the defendant thereby suffered prejudice.”
Griggs, supra, at ¶12. Counsel has correctly listed the nonconstitutional rights that
were reviewed at the change of plea hearing: the nature of the charges; the range of
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[Cite as State v. Baker, 2013-Ohio-862.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 32 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ROBERT BAKER ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 194
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Edward A. Czopur DeGenova & Yarwood, Ltd. 42 North Phelps St. Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: March 8, 2013 [Cite as State v. Baker, 2013-Ohio-862.] WAITE, J.
{¶1} Counsel for Appellant Robert Baker has filed a no merit brief and a
request to withdraw as counsel pursuant to State v. Toney, 23 Ohio App.2d 203, 262
N.Ed.2d 419 (1970). For the following reasons, counsel’s motion to withdraw is
sustained and Appellant’s conviction and sentence are affirmed.
{¶2} On February 24, 2011, Appellant was indicted on twenty-five charges
including eleven counts of rape, eleven counts of gross sexual imposition, as well as
counts of attempted gross sexual imposition, voyeurism and disseminating matter
harmful to juveniles. There were five victims referred to in the indictment, all of whom
were juveniles when the crimes occurred. The rape counts were punishable by life in
prison. The remaining charges were felonies of the third, fourth and fifth degree.
Counsel was appointed. On December 28, 2011, Appellant had a hearing in which
he pleaded guilty to all the charges pursuant to a Crim.R. 11 plea agreement, in
exchange for a removal of the life specifications of the rape charges, and in
exchange for a jointly agreed sentence recommendation of 10 years. The court
advised Appellant of all the constitutional and nonconstitutional rights he was waiving
by entering the plea, and then accepted his guilty pleas. A sentencing hearing was
held on January 19, 2012. In a judgment entry dated January 23, 2012, the trial
court imposed the agreed sentence of 10 years in prison. This appeal followed.
{¶3} Counsel is asking to withdraw pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and pursuant to our ruling in Toney,
supra. “ ‘It is well settled that an attorney appointed to represent an indigent criminal
defendant on his or her first appeal as of right may seek permission to withdraw upon -2-
a showing that the appellant's claims have no merit. To support such a request,
appellate counsel must undertake a conscientious examination of the case and
accompany his or her request for withdrawal with a brief referring to anything in the
record that might arguably support the appeal. The reviewing court must then
decide, after a full examination of the proceedings, whether the case is wholly
frivolous.’ ” (Citations omitted.) State v. Odorizzi, 126 Ohio App.3d 512, 515, 710
N.E.2d 1142 (1998).
{¶4} In Toney, this Court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is
frivolous and that there is no assignment of error which could be
arguably supported on appeal, he should so advise the appointing court
by brief and request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the -3-
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
6. Where the Court of Appeals makes such an examination and
concludes that the appeal is wholly frivolous, the motion of an indigent
appellant for the appointment of new counsel for the purposes of appeal
should be denied.
7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as
counsel of record should be allowed, and the judgment of the trial court
should be affirmed.
Id. at syllabus.
{¶5} A plea of guilty or no contest must be made knowingly, intelligently and
voluntarily for it to be a valid and enforceable plea. State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶25. In order to ensure that a plea in a felony
case is knowing, intelligent and voluntary, Crim.R. 11(C)(2) requires the trial judge to
address the defendant personally to review the rights that are being waived and to
discuss the consequences of the plea. Crim.R. 11(C)(2)(c) requires the court to
review five constitutional rights that are waived when entering a guilty or no contest
plea in a felony case: the right to a jury trial, the right to confront one's accusers, the
privilege against compulsory self-incrimination, the right to compulsory process to
obtain witnesses, and the right to require the state to prove guilt beyond a reasonable
doubt. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶19. -4-
A trial court must strictly comply with Crim.R. 11(C)(2)(c) when advising the
defendant of the constitutional rights that are being waived in entering a felony plea.
Id. at syllabus. Prejudice is presumed if the court fails to inform the defendant of any
of the constitutional rights listed in Crim.R. 11(C)(2)(c). Id. at ¶29. A trial court's
acceptance of a guilty or no contest plea will be affirmed only if the trial court
engaged in meaningful dialogue with the defendant which, in substance, explained
the pertinent constitutional rights “in a manner reasonably intelligible to that
defendant.” State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph
two of the syllabus; see also Veney, supra, at ¶27.
{¶6} The nonconstitutional requirements of Crim.R. 11 are subject to review
for substantial compliance rather than strict compliance. State v. Griggs, 103 Ohio
St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶11-12. “Substantial compliance means
that under the totality of the circumstances, the defendant subjectively understands
the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990). Further, “failure to comply with nonconstitutional
rights will not invalidate a plea unless the defendant thereby suffered prejudice.”
Griggs, supra, at ¶12. Counsel has correctly listed the nonconstitutional rights that
were reviewed at the change of plea hearing: the nature of the charges; the range of
punishments; the voluntariness of the plea; confirmation of the defendant's
competence; the right to effective assistance of counsel; the right to an appeal; the
court's authority to impose sentence independent of any recommendations; and the
court's authority to proceed immediately with sentencing. -5-
{¶7} In this case, the court conducted an extensive colloquy with Appellant,
explaining all his constitutional and nonconstitutional rights as set forth in Crim.R.
11(C). The court specifically reviewed the five constitutional rights being waived in
Crim.R. 11(C)(2)(c), and also explained the various nonconstitutional issues,
including the effect of entering a guilty plea.
{¶8} The only unusual aspect of the plea hearing was that Appellant entered
an Alford plea. An Alford plea is a guilty plea made in accordance with North
Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), whereby the
defendant pleads guilty but maintains that he did not commit the crime. An Alford
plea is “merely a species of guilty plea” and is “procedurally indistinguishable” from a
guilty plea. State v. Carter, 124 Ohio App.3d 423, 429, 706 N.E.2d 409 (2d
Dist.1997); State v. Nguyen, 6th Dist. No. L-05-1369, 2007-Ohio-2034, ¶18. “The
defendant's purpose for entering an Alford plea is to avoid the risk of a longer
sentence by agreeing to plead guilty to a lesser offense or for fear of the
consequences of a jury trial, or both.” State v. Bailey, 1st Dist. No. C-030916, 2004-
Ohio-6427, ¶7. A trial court may accept a guilty plea containing a protestation of
innocence when “a defendant intelligently concludes that his interests require entry of
a guilty plea and the record before the judge contains strong evidence of actual guilt.”
Alford at 37.
{¶9} By entering an Alford plea the defendant waives review of all alleged
errors, except those errors that may have affected the entry of the plea pursuant to -6-
Crim.R. 11. Nguyen, supra, at ¶18; State v. Lewis, 7th Dist. No. 97-CA-161 (July 30,
1999).
{¶10} The trial judge in this case was aware of the nature of the plea and
engaged in a colloquy with Appellant about his Alford plea. The court inquired if
Appellant was making the plea due to the fear of the consequences of a jury trial and
any desire to seek a lesser penalty. Appellant acknowledged that these were the
reasons he was making the Alford plea. (12/28/11 Tr., pp. 6-7.) This colloquy
satisfies the requirements of Alford, and no errors appear in the record.
{¶11} Counsel is aware that no sentencing error can be raised because the
sentence imposed was jointly recommended by Appellant and the state and was
accepted by the trial court. A jointly recommended sentence that is authorized by law
and that is accepted and imposed by the trial court is not subject to direct appeal.
State v. Reed, 7th Dist. No. 09 MA 53, 2010-Ohio-1096; R.C. 2953.08(D)(1).
{¶12} Because the record contains no apparent errors, counsel is permitted to
withdraw and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.