[Cite as State v. Finch, 2011-Ohio-4273.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 11 CA 6 RICHARD R. FINCH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 158
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT TODD BARSTOW PROSECUTING ATTORNEY 4185 East Main Street TRACY F. VAN WINKLE Columbus, Ohio 43213 ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 11 CA 6 2
Wise, J.
{¶1} Defendant-Appellant Richard R. Finch appeals his conviction entered in
the Licking County Court of Common Pleas.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On April 5, 2010, the Licking County Grand Jury indicted Appellant on nine
counts of Sexual Imposition, misdemeanors of the third degree; two counts of
Importuning, a felony of the third degree; one count of Unlawful Sexual Conduct with a
Minor, a felony of the fifth degree; one count of Sexual Imposition, and three counts of
Compelling Prostitution, felonies of the third degree. These charges were based upon
several acts of sexual contact and conduct with teenage males beginning in mid-to-late
2009 and continued until the spring of 2010. Some of the males were minors at the time
of the offenses.
{¶4} On December 6, 2010, Appellant entered pleas of guilty to seven counts
of Sexual Imposition, three counts of Importuning and one count of Unlawful Sexual
Conduct with a Minor. (T. at 3-14). Pursuant to the State's motion, the trial court
dismissed the remaining counts. (T. 3-4).
{¶5} After accepting Appellant’s pleas, the trial court proceeded to sentencing,
and conducting a sentencing hearing. (T. 23-48). The trial court sentenced Appellant to
a term of seven years of incarceration. (T. at 48). The trial court did not inform
Appellant of his right to appeal under Crim.R. 32(B)(2) and (3).
{¶6} The Judgment Entry of sentence was filed on December 17, 2010.
{¶7} Appellant now appeals, raising the following sole assignment of error: Licking County, Case No. 11 CA 6 3
ASSIGNMENT OF ERROR
{¶8} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE
OHIO CONSTITUTION BY ACCEPTING HIS GUILTY PLEAS WITHOUT NOTIFYING
IM OF HIS APPELLATE RIGHTS.”
I.
{¶9} In Appellant’s sole assignment of error, Appellant argues that the trial
court erred in failing to notify him as to his right to appeal. We disagree.
{¶10} Appellant contends that the trial court failed to comply with Crim.R. 11 by
not advising him at the time of his plea that he had the right to appeal. He argues that
as a result of such failure, his guilty plea was not knowing, intelligent and voluntary.
{¶11} Crim.R. 11(C) sets forth the trial court’s duties when accepting a guilty
plea. Notifications required pursuant to Crim.R. 11 are classified as notifications of
constitutional rights and non-constitutional notifications. State v. Veney, 120 Ohio St.3d
176, 897 N.E.2d 621, 2008–Ohio–5200, at ¶ 14.
{¶12} In Veney, supra, the Ohio Supreme Court held “[a] trial court must strictly
comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony
plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's
accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require
the state to prove guilt beyond a reasonable doubt, and (5) the privilege against
compulsory self-incrimination. When a trial court fails to strictly comply with this duty,
the defendant's plea is invalid.” (See also In re Winship, 397 U.S. 358, 364, 90 S.Ct. Licking County, Case No. 11 CA 6 4
1068, 25 L.Ed.2d 368 (1970); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969); State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981)).
{¶13} Strict compliance with Rule 11 is required regarding the above
enumerated rights. Veney, supra. For all other notifications required by Rule 11,
however, “substantial compliance is sufficient .” Id. at ¶ 14, 897 N.E.2d 621 (citing State
v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977)).
{¶14} In the case sub judice, Appellant concedes that the appeal of a criminal
conviction is not a right guaranteed by the United States Constitution and is not one of
the enumerated “strict compliance” rights set forth in Crim.R.11(C)(2). See McKane v.
Durston (1894), 153 U.S. 684. Accordingly, the proper standard for considering
Appellant’s claims is substantial compliance.
{¶15} “ ‘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. Furthermore, a defendant who challenges his guilty plea on the
basis that it was not knowingly, intelligently, and voluntarily made must show a
prejudicial effect.’ ... To demonstrate prejudice in this context, the defendant must show
that the plea would otherwise not have been entered.” Veney, supra, at ¶ 15 (quoting
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990)).
{¶16} Criminal Rule 32, however, does provide for a criminal defendant to be
advised by the trial court as to his right to appeal, wherein it states in relevant part:
{¶17} “(B) Notification of right to appeal
{¶18} “(1) *** Licking County, Case No. 11 CA 6 5
{¶19} “(2) After imposing sentence in a serious offense, the court shall advise
the defendant of the defendant's right, where applicable, to appeal or to seek leave to
appeal the sentence imposed.
{¶20} “(3) If a right to appeal or a right to seek leave to appeal applies under
division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the
following:
{¶21} “(a) That if the defendant is unable to pay the cost of an appeal, the
defendant has the right to appeal without payment;
{¶22} “(b) That if the defendant is unable to obtain counsel for an appeal,
counsel will be appointed without cost;
{¶23} “(c) That if the defendant is unable to pay the costs of documents
necessary to an appeal, the documents will be provided without cost;
{¶24} “(d) That the defendant has a right to have a notice of appeal timely filed
on his or her behalf.
{¶25} “Upon defendant's request, the court shall forthwith appoint counsel for
appeal.”
{¶26} Appellant herein argues that the trial court failed to properly inform him of
his right to appeal.
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[Cite as State v. Finch, 2011-Ohio-4273.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 11 CA 6 RICHARD R. FINCH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 158
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT TODD BARSTOW PROSECUTING ATTORNEY 4185 East Main Street TRACY F. VAN WINKLE Columbus, Ohio 43213 ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 11 CA 6 2
Wise, J.
{¶1} Defendant-Appellant Richard R. Finch appeals his conviction entered in
the Licking County Court of Common Pleas.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On April 5, 2010, the Licking County Grand Jury indicted Appellant on nine
counts of Sexual Imposition, misdemeanors of the third degree; two counts of
Importuning, a felony of the third degree; one count of Unlawful Sexual Conduct with a
Minor, a felony of the fifth degree; one count of Sexual Imposition, and three counts of
Compelling Prostitution, felonies of the third degree. These charges were based upon
several acts of sexual contact and conduct with teenage males beginning in mid-to-late
2009 and continued until the spring of 2010. Some of the males were minors at the time
of the offenses.
{¶4} On December 6, 2010, Appellant entered pleas of guilty to seven counts
of Sexual Imposition, three counts of Importuning and one count of Unlawful Sexual
Conduct with a Minor. (T. at 3-14). Pursuant to the State's motion, the trial court
dismissed the remaining counts. (T. 3-4).
{¶5} After accepting Appellant’s pleas, the trial court proceeded to sentencing,
and conducting a sentencing hearing. (T. 23-48). The trial court sentenced Appellant to
a term of seven years of incarceration. (T. at 48). The trial court did not inform
Appellant of his right to appeal under Crim.R. 32(B)(2) and (3).
{¶6} The Judgment Entry of sentence was filed on December 17, 2010.
{¶7} Appellant now appeals, raising the following sole assignment of error: Licking County, Case No. 11 CA 6 3
ASSIGNMENT OF ERROR
{¶8} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE
OHIO CONSTITUTION BY ACCEPTING HIS GUILTY PLEAS WITHOUT NOTIFYING
IM OF HIS APPELLATE RIGHTS.”
I.
{¶9} In Appellant’s sole assignment of error, Appellant argues that the trial
court erred in failing to notify him as to his right to appeal. We disagree.
{¶10} Appellant contends that the trial court failed to comply with Crim.R. 11 by
not advising him at the time of his plea that he had the right to appeal. He argues that
as a result of such failure, his guilty plea was not knowing, intelligent and voluntary.
{¶11} Crim.R. 11(C) sets forth the trial court’s duties when accepting a guilty
plea. Notifications required pursuant to Crim.R. 11 are classified as notifications of
constitutional rights and non-constitutional notifications. State v. Veney, 120 Ohio St.3d
176, 897 N.E.2d 621, 2008–Ohio–5200, at ¶ 14.
{¶12} In Veney, supra, the Ohio Supreme Court held “[a] trial court must strictly
comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony
plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's
accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require
the state to prove guilt beyond a reasonable doubt, and (5) the privilege against
compulsory self-incrimination. When a trial court fails to strictly comply with this duty,
the defendant's plea is invalid.” (See also In re Winship, 397 U.S. 358, 364, 90 S.Ct. Licking County, Case No. 11 CA 6 4
1068, 25 L.Ed.2d 368 (1970); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969); State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981)).
{¶13} Strict compliance with Rule 11 is required regarding the above
enumerated rights. Veney, supra. For all other notifications required by Rule 11,
however, “substantial compliance is sufficient .” Id. at ¶ 14, 897 N.E.2d 621 (citing State
v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977)).
{¶14} In the case sub judice, Appellant concedes that the appeal of a criminal
conviction is not a right guaranteed by the United States Constitution and is not one of
the enumerated “strict compliance” rights set forth in Crim.R.11(C)(2). See McKane v.
Durston (1894), 153 U.S. 684. Accordingly, the proper standard for considering
Appellant’s claims is substantial compliance.
{¶15} “ ‘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. Furthermore, a defendant who challenges his guilty plea on the
basis that it was not knowingly, intelligently, and voluntarily made must show a
prejudicial effect.’ ... To demonstrate prejudice in this context, the defendant must show
that the plea would otherwise not have been entered.” Veney, supra, at ¶ 15 (quoting
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990)).
{¶16} Criminal Rule 32, however, does provide for a criminal defendant to be
advised by the trial court as to his right to appeal, wherein it states in relevant part:
{¶17} “(B) Notification of right to appeal
{¶18} “(1) *** Licking County, Case No. 11 CA 6 5
{¶19} “(2) After imposing sentence in a serious offense, the court shall advise
the defendant of the defendant's right, where applicable, to appeal or to seek leave to
appeal the sentence imposed.
{¶20} “(3) If a right to appeal or a right to seek leave to appeal applies under
division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the
following:
{¶21} “(a) That if the defendant is unable to pay the cost of an appeal, the
defendant has the right to appeal without payment;
{¶22} “(b) That if the defendant is unable to obtain counsel for an appeal,
counsel will be appointed without cost;
{¶23} “(c) That if the defendant is unable to pay the costs of documents
necessary to an appeal, the documents will be provided without cost;
{¶24} “(d) That the defendant has a right to have a notice of appeal timely filed
on his or her behalf.
{¶25} “Upon defendant's request, the court shall forthwith appoint counsel for
appeal.”
{¶26} Appellant herein argues that the trial court failed to properly inform him of
his right to appeal. As set forth above, the trial court's duty to notify Appellant as to the
right to appeal does not arise until sentencing. It is not a requirement to be performed
prior to the acceptance of a plea and has no bearing on whether the plea was
knowingly, intelligently or voluntarily made. (See State v. Atkinson, 9th Dist. No.
05CA0079-M, 2006-Ohio-5806 at ¶ 22; Crim.R. 32(B)). Licking County, Case No. 11 CA 6 6
{¶27} Upon review, while we find that the record shows that the trial court did not
inform Appellant of his right to appeal under Crim.R. 32(B)(2) and (3), we find that the
Appellant has failed to show prejudice. Appellant filed an appeal in this matter and is
represented by counsel. Accordingly, we find no reversible error. State v. Whetstone,
Licking App. No. 2010 CA 00132, 20100-Ohio-1957; See also State v. Middleton,
Preble App. No. CA2004-01-003, 2005-Ohio-681, ¶ 25.
{¶28} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas of Licking County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
___________________________________
JUDGES JWW/d 0808 Licking County, Case No. 11 CA 6 7
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RICHARD R. FINCH : : Defendant-Appellant : Case No. 11 CA 6
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES