[Cite as State v. Havens, 2011-Ohio-5019.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0027
vs. : T.C. CASE NO. 08CR0344
TIMOTHY HAVENS : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of September, 2011.
Nick A. Selvaggio, Pros. Attorney, Atty. Reg. No. 0055607, 200 North Main Street, Urbana, OH 43078 Attorney for Plaintiff-Appellee
Kathryn L. Bowling, Atty. Reg. No. 0084442, 111 West First Street, Suite 518, Dayton, OH 45402 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Pursuant to a negotiated plea agreement, Defendant
Timothy Havens entered pleas of guilty on March 10, 2009, to one
count of assault, R.C. 2903.13(B), a misdemeanor of the first
degree, and one count of violation of a civil protection order,
R.C. 2919.27(A)(1), (B)(3), a felony of the fifth degree. In 2
exchange, the State dismissed eleven other charges and recommended
community control sanctions. The trial court sentenced Defendant
on May 12, 2009, to three years of community control sanctions,
which include special conditions prohibiting Defendant from having
any contact with the victim, his wife.
{¶ 2} Defendant did not appeal his conviction and sentence.
On June 22, 2010, following a hearing, the trial court found that
Defendant had violated the terms of his community control by
committing a new criminal offense, causing or attempting to cause
physical harm to his wife on June 9, 2010. The trial court
continued Defendant on community control, however, with additional
conditions, including prohibiting Defendant from having any
contact with the victim/wife.
{¶ 3} On July 22, 2010, following a hearing, the trial court
found that Defendant had once again violated his community control
by repeatedly making contact with the victim between July 5, 2010
and July 13, 2010. The trial court revoked Defendant’s community
control and sentenced Defendant to concurrent prison terms of six
months for assault and twelve months for violation of a civil
protection order.
{¶ 4} Defendant timely appealed to this court from the trial
court’s decision revoking his community control. Defendant’s
appellate counsel filed an Anders brief, Anders v. California 3
(1967), 386 U.S. 738, 87 S.Ct. 1396, 19 L.Ed.2d 493, stating that
she could find no meritorious issues for appellate review. We
notified Defendant of his appellate counsel’s representations and
afforded him ample time to file a pro se brief. None has been
received. This case is now before us for our independent review
of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346,
102 L.Ed.2d 300.
{¶ 5} Defendant’s appellate counsel has identified one
possible issue for appeal.
ASSIGNMENT OF ERROR
{¶ 6} “APPELLANT’S GUILTY PLEA WAS NOT ENTERED KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY AS REQUIRED BY LAW.”
{¶ 7} Defendant did not appeal the conviction for assault and
violation of a protection order that was entered on his guilty
pleas. In State v. Perry (1967), 10 Ohio St.2d 175, at ¶9 of the
syllabus, the Ohio Supreme Court stated:
{¶ 8} “Under the doctrine of res judicata, a final judgment
of conviction bars a convicted defendant who was represented by
counsel from raising and litigating in any proceeding except an
appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant
at the trial, which resulted in that judgment of conviction, or
on an appeal from that judgment.” 4
{¶ 9} Defendant’s claim that his guilty pleas were not entered
knowingly, intelligently and voluntarily clearly could have been
raised on direct appeal, but was not. Accordingly, that claim
is now barred by res judicata. Perry. In any event, our
examination of this record discloses that the trial court complied
with Crim.R. 11(C)(2) in accepting Defendant’s guilty pleas which
were entered knowingly, intelligently, and voluntarily.
{¶ 10} In order to be constitutionally valid and comport with
due process, a guilty plea must be entered knowingly,
intelligently, and voluntarily. Boykin v. Alabama (1969), 395
U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Compliance with Crim.R.
11(C)(2) in accepting guilty or no contest pleas portrays those
qualities. State v. Fisher, Montgomery App. No. 23992,
2011-Ohio-629, at ¶6.
{¶ 11} Crim. R. 11(C)(2) provides:
{¶ 12} “In felony cases the court may refuse to accept a plea
of guilty or a plea of no contest, and shall not accept a plea
of guilty or no contest without first addressing the defendant
personally and doing all of the following:
{¶ 13} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of 5
community control sanctions at the sentencing hearing.
{¶ 14} “(b) Informing the defendant of and determining that
the defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
{¶ 15} “(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving
the rights to jury trial, to confront witnesses against him or
her, to have compulsory process for obtaining witnesses in the
defendant's favor, and to require the state to prove the defendant's
guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.”
{¶ 16} In State v. Russell, Clark App. No. 10CA54,
2011-Ohio-1738, at ¶7-8, we stated:
{¶ 17} “The Supreme Court of Ohio has urged trial courts to
literally comply with Crim.R. 11. Clark at ¶ 29. The trial court
must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to
the waiver of constitutional rights. Clark at ¶ 31. The failure
to adequately inform a defendant of his constitutional rights would
invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly. State v. Griggs, 103 Ohio St.3d
85, 2004–Ohio–4415, ¶ 12.
{¶ 18} “However, because Crim.R. 11(C)(2)(a) and (b) involve 6
non-constitutional rights, the trial court need only substantially
comply with those requirements. State v. Nero (1990), 56 Ohio St.3d
106, 108; Greene at ¶ 9. 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. Miller, Clark App. No. 08 CA 90, 2010–Ohio–4760,
¶ 8, citing State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200,
¶ 15. A defendant who challenges his guilty plea on the ground
that the trial court did not substantially comply with Crim.R.
11(C)(2)(a) and (b) must show a prejudicial effect, which requires
the defendant to show that the plea would otherwise not have been
entered. Griggs at ¶ 12.”
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[Cite as State v. Havens, 2011-Ohio-5019.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0027
vs. : T.C. CASE NO. 08CR0344
TIMOTHY HAVENS : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of September, 2011.
Nick A. Selvaggio, Pros. Attorney, Atty. Reg. No. 0055607, 200 North Main Street, Urbana, OH 43078 Attorney for Plaintiff-Appellee
Kathryn L. Bowling, Atty. Reg. No. 0084442, 111 West First Street, Suite 518, Dayton, OH 45402 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Pursuant to a negotiated plea agreement, Defendant
Timothy Havens entered pleas of guilty on March 10, 2009, to one
count of assault, R.C. 2903.13(B), a misdemeanor of the first
degree, and one count of violation of a civil protection order,
R.C. 2919.27(A)(1), (B)(3), a felony of the fifth degree. In 2
exchange, the State dismissed eleven other charges and recommended
community control sanctions. The trial court sentenced Defendant
on May 12, 2009, to three years of community control sanctions,
which include special conditions prohibiting Defendant from having
any contact with the victim, his wife.
{¶ 2} Defendant did not appeal his conviction and sentence.
On June 22, 2010, following a hearing, the trial court found that
Defendant had violated the terms of his community control by
committing a new criminal offense, causing or attempting to cause
physical harm to his wife on June 9, 2010. The trial court
continued Defendant on community control, however, with additional
conditions, including prohibiting Defendant from having any
contact with the victim/wife.
{¶ 3} On July 22, 2010, following a hearing, the trial court
found that Defendant had once again violated his community control
by repeatedly making contact with the victim between July 5, 2010
and July 13, 2010. The trial court revoked Defendant’s community
control and sentenced Defendant to concurrent prison terms of six
months for assault and twelve months for violation of a civil
protection order.
{¶ 4} Defendant timely appealed to this court from the trial
court’s decision revoking his community control. Defendant’s
appellate counsel filed an Anders brief, Anders v. California 3
(1967), 386 U.S. 738, 87 S.Ct. 1396, 19 L.Ed.2d 493, stating that
she could find no meritorious issues for appellate review. We
notified Defendant of his appellate counsel’s representations and
afforded him ample time to file a pro se brief. None has been
received. This case is now before us for our independent review
of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346,
102 L.Ed.2d 300.
{¶ 5} Defendant’s appellate counsel has identified one
possible issue for appeal.
ASSIGNMENT OF ERROR
{¶ 6} “APPELLANT’S GUILTY PLEA WAS NOT ENTERED KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY AS REQUIRED BY LAW.”
{¶ 7} Defendant did not appeal the conviction for assault and
violation of a protection order that was entered on his guilty
pleas. In State v. Perry (1967), 10 Ohio St.2d 175, at ¶9 of the
syllabus, the Ohio Supreme Court stated:
{¶ 8} “Under the doctrine of res judicata, a final judgment
of conviction bars a convicted defendant who was represented by
counsel from raising and litigating in any proceeding except an
appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant
at the trial, which resulted in that judgment of conviction, or
on an appeal from that judgment.” 4
{¶ 9} Defendant’s claim that his guilty pleas were not entered
knowingly, intelligently and voluntarily clearly could have been
raised on direct appeal, but was not. Accordingly, that claim
is now barred by res judicata. Perry. In any event, our
examination of this record discloses that the trial court complied
with Crim.R. 11(C)(2) in accepting Defendant’s guilty pleas which
were entered knowingly, intelligently, and voluntarily.
{¶ 10} In order to be constitutionally valid and comport with
due process, a guilty plea must be entered knowingly,
intelligently, and voluntarily. Boykin v. Alabama (1969), 395
U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Compliance with Crim.R.
11(C)(2) in accepting guilty or no contest pleas portrays those
qualities. State v. Fisher, Montgomery App. No. 23992,
2011-Ohio-629, at ¶6.
{¶ 11} Crim. R. 11(C)(2) provides:
{¶ 12} “In felony cases the court may refuse to accept a plea
of guilty or a plea of no contest, and shall not accept a plea
of guilty or no contest without first addressing the defendant
personally and doing all of the following:
{¶ 13} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of 5
community control sanctions at the sentencing hearing.
{¶ 14} “(b) Informing the defendant of and determining that
the defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
{¶ 15} “(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving
the rights to jury trial, to confront witnesses against him or
her, to have compulsory process for obtaining witnesses in the
defendant's favor, and to require the state to prove the defendant's
guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.”
{¶ 16} In State v. Russell, Clark App. No. 10CA54,
2011-Ohio-1738, at ¶7-8, we stated:
{¶ 17} “The Supreme Court of Ohio has urged trial courts to
literally comply with Crim.R. 11. Clark at ¶ 29. The trial court
must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to
the waiver of constitutional rights. Clark at ¶ 31. The failure
to adequately inform a defendant of his constitutional rights would
invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly. State v. Griggs, 103 Ohio St.3d
85, 2004–Ohio–4415, ¶ 12.
{¶ 18} “However, because Crim.R. 11(C)(2)(a) and (b) involve 6
non-constitutional rights, the trial court need only substantially
comply with those requirements. State v. Nero (1990), 56 Ohio St.3d
106, 108; Greene at ¶ 9. 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. Miller, Clark App. No. 08 CA 90, 2010–Ohio–4760,
¶ 8, citing State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200,
¶ 15. A defendant who challenges his guilty plea on the ground
that the trial court did not substantially comply with Crim.R.
11(C)(2)(a) and (b) must show a prejudicial effect, which requires
the defendant to show that the plea would otherwise not have been
entered. Griggs at ¶ 12.”
{¶ 19} The record of the plea hearing in this case demonstrates
that the trial court strictly complied with Crim.R. 11(C)(2)(c)
in advising Defendant about the various constitutional rights he
would be giving up by pleading guilty. Furthermore, the trial
court substantially complied with Crim.R. 11(C)(2)(a) and (b) in
determining Defendant’s understanding of the various
non-constitutional matters. Pursuant to the plea agreement, the
State recommended community control sanctions and the trial court
imposed that recommended sentence. Defendant’s guilty pleas were
entered knowingly, intelligently and voluntarily. This
assignment of error lacks arguable merit. 7
{¶ 20} In addition to reviewing the possible issues for appeal
raised by Defendant’s appellate counsel, we have conducted an
independent review of the trial court’s proceedings and have found
no error having arguable merit. Accordingly, Defendant’s appeal
is without merit and the judgment of the trial court will be
affirmed.
FROELICH, J., And HALL, J., concur.
Copies mailed to:
Nick A. Selvaggio, Esq. Kathryn L. Bowling, Esq. Timothy Havens Hon. Roger B. Wilson