State v. Gilbert

2017 Ohio 4468

• Court: Ohio Court of Appeals
• Decided: June 23, 2017
• Docket: S-16-047
• Status: Published

Opinion

[Cite as State v. Gilbert, 2017-Ohio-4468.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-16-047

Appellee Trial Court No. 16 CR 530

v.

Glen A. Gilbert DECISION AND JUDGMENT

Appellant Decided: June 23, 2017

*****

Brett A. Klimkowsky, for appellant.

MAYLE, J.

Introduction

{¶ 1} This is an appeal of a September 29, 2016 judgment of the Sandusky County

Court of Common Pleas. Defendant-appellant, Glen Gilbert, pled guilty to one count of

pandering obscenity involving a minor, in violation of R.C. 2907.32(1)(A)(2), a felony in

the second degree. The trial court sentenced Gilbert to 48 months in prison, and he

appealed. {¶ 2} Gilbert’s appointed counsel has submitted a request to withdraw from the

case, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967). Counsel asserts that he has reviewed the entire record on appeal, and he is unable

to find any nonfrivolous issues for our review. He requests that he be allowed to

withdraw from the case. Counsel advised Gilbert of his right to file his own brief.

{¶ 3} Neither Gilbert nor the state, the appellee herein, filed an appellate brief.

Counsel’s Request to Withdraw

{¶ 4} The procedure to be followed by appointed counsel who desires to withdraw

for want of a meritorious, appealable issue is set forth in Anders and State v. Duncan, 57

Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the United States Supreme

Court held that if counsel, after a conscientious examination of the case, determines it to

be wholly frivolous he should so advise the court and request permission to withdraw.

Anders at 744. This request, however, must be accompanied by a brief identifying

anything in the record that could arguably support the appeal. Id. Counsel must also

furnish his client with a copy of the brief, request to withdraw, and allow the client

sufficient time to raise any matters that the client chooses. Id. Once these requirements

have been satisfied, the appellate court must then conduct a full examination of the

proceedings held below to determine if the appeal is indeed frivolous. If the appellate

court determines that the appeal is frivolous, it may grant counsel’s request to withdraw

and dismiss the appeal without violating constitutional requirements or it may proceed to

a decision on the merits if state law so requires. Id.

2. {¶ 5} In his brief, appointed counsel fails to identify “anything in the record that

could arguably support the appeal,” as required by Anders. Counsel maintains that he

“can find no error by the trial court prejudicial to the rights of [Gilbert] which may be

argued in a nonfrivolous manner on appeal.”

{¶ 6} This court, as required under Anders, has undertaken our own examination

of the record to determine whether any issue of arguable merit is presented for appeal.

Because we find that a potential error has arguable merit, we appoint new appellate

counsel for the purpose of briefing and presenting that issue, and any others, for our

review.

Facts and Procedural History

{¶ 7} Appellant was indicted on four criminal counts: pandering obscenity

involving a minor, in violation of R.C. 2907.32(1)(A)(2), a second-degree felony;

importuning, in violation of R.C. 2907.07(D)(2), a fifth-degree felony; attempted

unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A) and 2923.02, a

fourth-degree felony; and disseminating matter harmful to a juvenile in violation of R.C.

2907.31(A)(1), a fifth-degree felony.

{¶ 8} The charges stem from a personal advertisement Gilbert placed on

“Craigslist” and the resulting online conversation he had with someone whom he

believed was a 13-year-old girl, but was actually a Bellevue police officer posing as a

young girl. Gilbert sent four pornographic videos, including child pornography, to “the

3. girl” and arranged to meet her in a park for the purpose of engaging in sexual conduct.

The police arrested appellant in the park.

{¶ 9} Gilbert was appointed trial counsel. During a plea hearing, Gilbert pled

guilty to the pandering obscenity charge, in exchange for the state’s agreement to dismiss

the remaining three counts. The trial court accepted the plea, found Gilbert guilty, and

referred the matter for a presentence investigation.

{¶ 10} Sentencing was held on September 29, 2016. At the conclusion of the

hearing, the trial court sentenced appellant to serve 48 months in prison, to pay the costs

of the prosecution and for his state-appointed counsel, to register as a Tier II sex

offender, and as such, to verify his address for the sex offender notification requirements

for 25 years.

Law and Analysis

{¶ 11} Recently, this court has invalidated a number of pleas in sexually oriented

cases where the trial court failed to comply with the mandates of Crim.R. 11(C) and

remanded them for proceedings consistent with the decision.

{¶ 12} Crim.R. 11(C) governs guilty and no contest pleas in felony cases. Before

a trial court may accept a guilty plea, it must address the defendant personally and inform

him of, and ensure that he understands, “the nature of the charges and of the maximum

penalty involved” and the “effect of the plea of guilty.” Crim.R. 11(C)(2)(a) and (b).

The underlying purpose of Crim.R. 11(C) is to ensure that the information a defendant

4. needs to make a voluntary and intelligent decision about pleading guilty is conveyed to

him. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

{¶ 13} If a trial court fails to comply with Crim.R. 11, then the reviewing court

must determine whether the trial judge failed to explain the defendant’s constitutional or

nonconstitutional rights. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶ 30. When a trial judge fails to explain constitutional rights, set forth in

Crim.R. 11(C)(2)(c), the guilty or no contest plea is invalid “under a presumption that it

was entered involuntarily and unknowingly.” (Citations omitted.) Id. at ¶ 31.

{¶ 14} A less stringent standard applies to nonconstitutional rights. If the trial

judge imperfectly explained nonconstitutional rights, such as the right to be informed of

the maximum possible penalty and the effect of the plea, a substantial-compliance rule

applies. Id. at ¶ 31. “Under this standard, a slight deviation from the text of the rule is

permissible; so long as the totality of the circumstances indicates that ‘the defendant

subjectively understands the implications of his plea and the rights he is waiving,’ the

plea may be upheld.” Id. at ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990).

{¶ 15} Where the trial court does not substantially comply with Crim.R. 11

nonconstitutional rights, however, a reviewing court must determine whether it partially

complied or failed to comply with the rule. Nero at 108. If the trial judge partially

complied, the plea will be vacated only if the defendant demonstrates a prejudicial effect.

The test for prejudice is “whether the plea would have otherwise been made.” Id. If the

5. trial judge completely failed to comply with the rule, then the plea must be vacated.

Clark at ¶ 32. “A complete failure to comply with the rule does not implicate an analysis

of prejudice.” Id., quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881

N.E.2d 1224, ¶ 22.

{¶ 16} Where the case involves a defendant who is classified as a sexually

oriented offender or a child victim sex offender under R.C. Chapter 2950, a trial court

must inform the defendant of certain statutory requirements. The requirements, which

include registration, community notifications, and residential restrictions, are considered

punitive sanctions under State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952

N.E.2d 1108, ¶ 16. Therefore, “the trial court must inform the defendant of all of the

punitive consequences of entering a guilty plea and having a child victim or sex offender

classification in order to substantially comply with non-constitutional provisions of

Crim.R. 11.” State v. Ragusa, 6th Dist. Lucas No. L-15-1244, 2016-Ohio-3373, ¶ 5.

The trial court is not required to address each specific restriction or requirement, but it

must substantially notify the defendant of the restriction and registration requirements.

Id.

{¶ 17} With the above framework in mind, we turn to the record in this case. The

trial court informed Gilbert at the plea hearing that, if he pled guilty to the pandering

obscenity charge, then he would be “required to register as a sexual offender, as a Tier II

sex offender, and that [he] would be required to register for 25 years [which] means

6. verifying [his] address every six months * * * through the Sandusky County Sheriff’s

Office.”

{¶ 18} The written plea agreement, which Gilbert acknowledged in writing, stated,

in relevant part:

I will be required to register pursuant to Chapter 2950 as a sexual offender.

Ohio law requires that the sheriff charge a one-time fee of $100.00 at the

time of your initial registration as a sex offender. I will be classified as a

Tier II Sex offender and will be required to register for a period of twenty-

five years. I will be required to verify my address, current school or

institution higher education [sic] or place of employment address every one

hundred eighty days.

{¶ 19} No other notifications were provided to Gilbert. In particular, the court did

not inform Gilbert of the requirement pertaining to community notifications, set forth in

R.C. 2950.11, and the residency restrictions, set forth in R.C. 2950.034.

{¶ 20} A similar situation was presented in Ragusa, 6th Dist. Lucas No.

L-15-1244, 2016-Ohio-3373, ¶ 5. There, we invalidated a plea because the trial court

failed to inform the defendant, “of the full punitive consequences of her Alford guilty

plea [including] the community notifications and residential restrictions imposed upon

Tier II and Tier III child victim offenders.” Id. at ¶ 9. We found that the failure to notify

the defendant of those two specific penalties amounted to a “complete failure to comply

and therefore, the plea must be vacated without the necessity of showing prejudice.” Id.

7. {¶ 21} More recently, in State v. Kouts, 6th Dist. Sandusky No. S-16-012, 2017-

Ohio-2905, the defendant pled guilty to two counts of gross sexual imposition and five

counts of pandering sexually oriented material. Although the trial court informed the

defendant of his registration requirement as a Tier III sex offender and the fact that the

community notification requirements were not applicable, the court did not inform him of

the residential restrictions outlined in R.C. 2950.034. Id. We found that “the trial court

completely failed to comply with Crim.R. 11(C)” and remanded the case to the trial court

for further proceedings. Id. at ¶ 13.

{¶ 22} Pursuant to Anders, if any potential error has merit, we are to afford

appellant new counsel and an opportunity to argue the appeal. We think that a potential

error exists as to whether the court’s failure to address the requirements regarding

community notifications and residential restrictions rendered Gilbert’s guilty plea

involuntary under Crim.R. 11(C)(2). Therefore, we grant appointed counsel’s request to

withdraw from the case, and we appoint Laurel Kendall, Esq. (Ohio Supreme Court No.

0083110), 1709 Spielbusch Avenue, Suite 110, Toledo, Ohio, 43604, to represent Gilbert

for purposes of this appeal.

{¶ 23} Gilbert’s newly appointed counsel is granted 20 days from the date of this

order to file an original brief in this matter. Thereafter, briefing shall proceed pursuant to

App.R. 18.

Motion granted.

8. State v. Gilbert C.A. No. S-16-047

Arlene Singer, J. _______________________________ JUDGE James D. Jensen, P.J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

9.