State v. Glus

2014 Ohio 245

• Court: Ohio Court of Appeals
• Decided: January 27, 2014
• Docket: 2012-G-3087
• Status: Published

Opinion

[Cite as State v. Glus, 2014-Ohio-245.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2012-G-3087 - vs - :

JON GLUS, :

Defendant-Appellant. :

Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 11 C 000155.

Judgment: Affirmed in part, reversed in part, and remanded.

James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).

Sean C. Buchanan, Buchanan Legal, P.O. Box 1443, Kent, OH 44240 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Jon Glus, appeals from the judgment of the Geauga County

Court of Common Pleas, finding him guilty of two counts of rape and one count of

pandering obscenity involving a minor. For the reasons discussed in this opinion, the

trial court’s judgment is affirmed in part, reversed in part, and remanded.

{¶2} Appellant was indicted on two counts of rape, in violation of R.C.

2907.02(A)(1)(b), felonies of the first degree; four counts of gross sexual imposition, in violation of R.C. 2907.05, felonies of the third degree; and one count of pandering

obscenity involving a minor, in violation of R.C. 2907.321, a felony of the second

degree. Appellant entered a plea of not guilty to all charges. Appellant later changed

his plea and entered a plea of guilty to the two counts of rape and one count of

pandering obscenity involving a minor. Pursuant to the agreement, the parties jointly

recommended appellant serve two consecutive 10-year terms on the rape counts and

five years on the pandering count, to be served concurrently with the rape terms. After

a thorough plea hearing, the trial court accepted appellant’s change of plea. The trial

court further accepted the parties’ joint recommendation on sentence. By virtue of his

convictions, appellant was labeled a Tier III sex offender.

{¶3} Approximately five months after his sentencing, appellant moved this court

for leave to file a delayed appeal. This court granted appellant leave and appointed

counsel to represent him. The original appointed counsel filed a brief on appellant’s

behalf pursuant to Anders v. California, 386 U.S. 738 (1967). In this brief, the original

counsel stated that, after thorough examination of the record, he found no prejudicial

error committed by the trial court. As the sole potential error, the original counsel

asked this court to review whether appellant’s change of plea was entered knowingly,

intelligently, and voluntarily. The original counsel further sought permission to withdraw

as appellate counsel as he found the appeal wholly frivolous. Finally, the original

counsel certified he sent a copy of his brief to appellant with the instruction that he may

file his own brief on his own behalf with this court.

{¶4} On January 2, 2013, this court entered judgment granting appellant leave

to raise any additional arguments in support of his appeal within 30 days of the date of

2 said entry. Appellant, however, elected not to file a pro se brief.

{¶5} In Anders, the United States Supreme Court held that if appellate counsel,

after a conscientious examination of the case, finds an appeal to be wholly frivolous, he

should advise the court and request permission to withdraw. Id. at 744. This request

to withdraw must be accompanied by a brief citing anything in the record that could

arguably support an appeal. Id. Further, counsel must furnish his client with a copy of

the brief and request to withdraw, and give the client an opportunity to raise any

additional items. Id. Once these requirements have been met, the appellate court

must review the entire record to determine whether the appeal is wholly frivolous. Id. If

the court finds the appeal is wholly frivolous, the court may grant counsel's motion to

withdraw and proceed to a decision on the merits. Id. If, however, the court concludes

the appeal is not frivolous, it must appoint new counsel for the client. Id.

{¶6} The original appointed counsel satisfied each of his duties under Anders.

Accordingly, this court undertook an independent review of the entire trial record. In

addition to considering the sole potential error raised by the original counsel, we noted

a second potential error regarding the procedure the trial court followed in imposing

court costs as part of appellant’s sentence. As a result, a new attorney was appointed

for the purposes of submitting a second brief on behalf of appellant addressing the

“court costs” issue. After this second brief was filed, the State of Ohio submitted an

answer brief.

{¶7} In light of the foregoing briefing, two assignments of error are before this

court for review in this appeal. We characterize the first as follows:

3 {¶8} The trial court erred in accepting appellant's guilty plea, which was not

entered knowingly, intelligently, and voluntarily.

{¶9} “When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527 (1996).

{¶10} Crim.R. 11(C)(2) states that the court shall not accept a guilty plea without

first addressing the defendant personally and: (a) determining that he is making the

plea voluntarily, with an understanding of the nature of the charges and of the

maximum penalty involved; (b) informing the defendant of and determining that he

understands the effect of the guilty plea, i.e., that upon acceptance of the plea, the

court may proceed with judgment and sentence; (c) informing the defendant and

determining that he understands that by the plea, he is waiving the constitutional rights

to a jury trial, to confront witnesses against him, to have compulsory process for

obtaining witnesses, and to require the state to prove his guilt beyond a reasonable

doubt at a trial at which he cannot be compelled to testify against himself.

{¶11} A review of the change-of-plea hearing demonstrates the trial court

addressed appellant personally. The transcript shows appellant understood he was

pleading guilty to two counts of rape, felonies of the first degree and one count of

pandering obscenity involving a minor, a second degree felony. The record also

demonstrates appellant was aware and understood the maximum penalties attaching

to these crimes. Appellant stated he understood the court could proceed with judgment

and sentence upon accepting his plea. Finally, the court specifically informed appellant

4 of each individual, constitutional right he was waiving by entering a plea and appellant

stated he understood his plea operated as a waiver of these rights.

{¶12} The court specifically and literally advised appellant of each constitutional

and non-constitutional right. Moreover, the court expressly asked appellant if he

understood his rights, the nature of what he was waiving, and the ultimate effect of the

guilty plea he was entering. It is therefore clear that the trial court met its obligations

under Crim.R. 11(C). As a result, appellant’s plea was knowingly, intelligently, and

voluntarily entered.

{¶13} Appellant’s first assigned error is wholly frivolous and without merit.

{¶14} As set forth in the brief filed by the second appointed counsel, appellant’s

second assignment states:

{¶15} “The trial court erred by not informing [appellant] of community service

requirements for failure to pay costs.”

{¶16} As of March 12, 2012, the date the trial court’s sentencing judgment was

issued, R.C. 2947.23 provided, in pertinent part:

{¶17} “(A)(1) In all criminal cases, including violations of ordinances, the judge or

magistrate shall include in the sentence the costs of prosecution, including any costs

under section 2947.231 of the Revised Code, and render a judgment against the

defendant for such costs. At the time the judge or magistrate imposes sentence, the

judge or magistrate shall notify the defendant of both of the following:

{¶18} “(a) If the defendant fails to pay that judgment or fails to timely make

payments towards that judgment under a payment schedule approved by the court, the

court may order the defendant to perform community service in an amount of not more

5 than forty hours per month until the judgment is paid or until the court is satisfied that

the defendant is in compliance with the approved payment schedule.

{¶19} “(b) If the court orders the defendant to perform the community service,

the defendant will receive credit upon the judgment at the specified hourly credit rate

per hour of community service performed, and each hour of community service

performed will reduce the judgment by that amount.”

{¶20} In State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, the Supreme Court

of Ohio held the foregoing statutory provisions are mandatory and a trial court must put

a criminal defendant on notice of their content at the time of sentencing. Id. at ¶10. A

trial court’s failure to provide this notification constitutes reversible error requiring a

limited hearing on that issue. State v. Moore, 11th Dist. Geauga No. 2011-G-3027,

2012-Ohio-3885, ¶84; see also State v. Taylor, 11th Dist. Portage No. 2011-P-0090,

2012-Ohio-3890, ¶43.

{¶21} In further construing the notification requirement of the foregoing version

of R.C. 2947.23(A)(1), this court has concluded that the lack of oral notification during

the sentencing hearing does not constitute plain error when the sentencing judgment

provided notice that the defendant could be subject to community service if court costs

were not paid timely. State v. Fomby, 11th Dist. Lake No. 2012-L-073, 2013-Ohio-

2821, ¶64-67. Moreover, we have held that the lack of oral notification does not always

require a remand for the purpose of conducting a new sentencing hearing; if the state

agrees on appeal, the appellate court can afford the defendant a complete remedy by

modifying the sentencing judgment to expressly provide that he can never be subject to

6 community service if he is delinquent in paying court costs. State v. Dye, 11th Dist.

Portage No. 2011-P-0092, 2013-Ohio-4285, ¶16-18.

{¶22} In this case, the trial court did not provide either oral or written notice of

the possibility that community service could be imposed for failing to timely pay court

costs. In the absence of any notice under R.C. 2947.23(A)(1), the lack of an objection

by appellant’s trial counsel during the sentencing hearing does not result in a waiver of

the point; i.e., the trial court committed plain error. Furthermore, although the state

conceded in its appellate brief that the trial court did not comply with the notification

requirement in imposing court costs, it did not agree to a modification of the sentencing

judgment under which the possibility of community service would be eliminated in this

instance. Thus, pursuant to Moore, supra, this case must be remanded so that the trial

court can conduct a new limited hearing for the purpose of providing the required oral

notification under R.C. 2947.23(A)(1). Appellant’s second assignment has merit.

{¶23} For the reasons discussed in this opinion, the judgment of the Geauga

County Court of Common Pleas is affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion.

COLLEEN MARY O’TOOLE, J., concurs,

DIANE V. GRENDELL, J., concurs with a Concurring Opinion.

____________________

7 {¶24} I concur in the judgment and the substantive analysis of the majority’s

opinion as it relates to the assignments of error raised by Glus. I write separately,

however, to address the flaws in the procedure followed in this appeal.

{¶25} In this case, an Anders brief was submitted by Glus’ original appellate

counsel, asserting that the appeal had no merit, but raising as a potential error the

voluntariness of Glus’ plea. The majority, in a June 17, 2013 Judgment Entry, “noted a

second potential error” regarding the failure of the trial court to advise Glus of the

possibility of being ordered to perform community service in lieu of court costs. The

majority then appointed a new attorney “for the purposes of submitting a second brief

on behalf of appellant,” addressing this issue. Supra at ¶ 6.

{¶26} This matter should have been resolved by the issuance of an opinion

reversing and remanding to the trial court for the limited purpose of providing Glus the

proper notification, especially given that the law of this district clearly holds that the

court’s failure to give such notification constitutes error, as the cases cited by the

majority reveal. Further briefing added nothing of value to this analysis and did not

change the ultimate disposition of the case. No harm would have been caused to Glus

by following this course of action, since the reversal benefits Glus and will allow him to

be properly advised of the law.

{¶27} The Fourth District applied this approach in Anders cases, remanding to

the trial court for limited purposes when a clear violation of the law occurred in the trial

court. State v. Marcum, 4th Dist. Hocking No. 11CA30, 2013-Ohio-951, ¶ 4 (“given that

the trial court clearly erred when it failed to orally notify [the defendant] about the

imposition of court costs,” a remand for the limited purpose of resolving the matter was

8 proper, without any further briefing or appointment of new counsel); State v. Ross, 4th

Dist. Lawrence No. 10CA31, 2011-Ohio-1136, ¶ 13 (finding in an Anders case that

judicial economy favored immediate remand to the trial court because of clear error in

the imposition of post-release control).

{¶28} This approach allows appellate courts to avoid expending considerable

time and public taxpayers’ resources in conducting unnecessary additional briefing that

is not required to afford Glus with a proper review of his appeal. Appointing new

counsel prolonged the resolution of this matter and was not consistent with the

purposes of judicial economy. Painesville City Local Schools Bd. of Edn. v. Ohio Assn.

of Public School Emps., 11th Dist. Lake No. 2005-L-100, 2006-Ohio-3645, ¶ 15

(emphasizing the importance of speedy resolutions to conflicts to foster judicial

economy by “unburdening crowded court dockets”) (citation omitted); State v.

Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 28 (finding that the

court’s holding should “foster rather than thwart judicial economy”). Based solely on

the unnecessary appointment of new counsel and the additional briefing period, a delay

of almost two additional months was added to the disposition of this appeal.

{¶29} Further, this court was not required under the law to appoint new counsel

to brief the separate community service issue. As this court has held in State v. Martin,

11th Dist. Portage No. 2005-P-0097, 2007-Ohio-4961, separate counsel need not be

appointed when further briefing could be performed by the defendant’s initial counsel.

{¶30} With the foregoing reservations, I concur.