[Cite as State v. Kinstle, 2019-Ohio-4478.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28264 : v. : Trial Court Case No. 2018-CR-683 : STEVEN KINSTLE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 1st day of November, 2019.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Appellant, Steven Kinstle, entered a guilty plea to aggravated possession of
drugs (methamphetamine), a third degree felony, and he was sentenced to serve a 30-
month prison term. After his appointed appellate counsel filed a brief under the authority
of California v. Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Kinstle filed
a pro se brief. Kinstle’s pro se assignments of error, with two exceptions, were waived
by virtue of his guilty plea. The two exceptions (counsel promised him that he would be
sentenced to community control sanctions (CCS) and the trial court did not inform him of
the State’s obligation to prove his guilt beyond a reasonable doubt), if accurate, could
have affected the knowing, intelligent, and voluntary nature of the guilty plea, but neither
contention is supported by the record. Thus, the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} As noted, Kinstle was indicted for aggravated possession of drugs
(methamphetamine), a third degree felony. Kinstle ultimately entered a guilty plea to the
charge. There was no agreement regarding his sentence, but a presentence
investigation was conducted. Kinstle did not appear for the scheduled sentencing
hearing, and, as a result, an arrest warrant was issued. Several months later, Kinstle
was arrested on the warrant, and a sentencing hearing was conducted. The trial court
sentenced Kinstle to a 30-month prison term. This appeal followed.
{¶ 3} Kinstle’s appointed counsel filed an Anders brief stating that she could not
find any potentially meritorious issues for appellate review. In his pro se brief, Kinstle
raises six assignments of error. -3-
Analysis
{¶ 4} Kinstle’s assignments of error are set forth as follows:
DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL
Trial counsel was ineffective for failure to provide Defendant-
Appellant with discovery after he was indicted, fail[ure] to suppress the
evidence after it was discovered that the evidence does not exist, and
mislead[ing] Defendant-Appellant into entering a guilty plea of the promise
of probation, which deprived Defendant-Appellant right to effective
assistance of counsel and due process.
DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS
WHEN THE STATE FAILED TO PROPERLY SERVE HIM WITH THE
INDICTMENT
Defendant-Appellant was denied his rights under the 6th & 14th
Amend[ments] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §
10 when the State failed to properly serve him the indictment before being
arraigned on the charge. Defendant-Appellant has never been served an
indictment.
BY THE STATE’S UNJUSTIFIABLE DELAY BETWEEN THE
COMMISSION OF THE OFFENSE AND THE INDICTMENT
Defendant-Appellant[’s] rights to due process under Ohio -4-
Const[itution] art[icle] I § 16 and the Fifth and Fourteenth Amend[ments] to
the U.S. Const[itution] were violated by the State’s unjustifiable delay
between the commission of the offense and Defendant-Appellant’s
indictment, which results in actual prejudice to the Defendant-Appellant.
WHEN THE STATE FAILED TO ANSWER DISCOVERY REQUEST
Defendant-Appellant[’s] rights to due process under Ohio
Const[itution] art[icle] I § 10 and the 6th & 14th Amend[ments] to the U.S.
Const[itution] when the State failed to answer counsel’s request for
discovery before Defendant-Appellant entered a plea of guilty, which
severally (sic) prejudiced him from knowing what evidence the State had
against him.
BY THE STATE USING SHAM LEGAL PROCESS TO INDICT
Defendant-Appellant was denied his rights under the 5th & 14th
Amend[ments] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §
10 when the State failed to apply the proper procedure when indicting the
Defendant-Appellant by not having the jury foreman or the prosecutor
signed (sic) the indictment, which denied Defendant-Appellant of due
process.
BY THE TRIAL JUDGE FAILING TO ADVISE HIM AT SENENCING THAT
THE STATE WOULD HAVE TO PROVE THE ELEMENTS OF THE -5-
OFFENSE BEYOND A REASONABLE DOUBT WHICH RENDERS THE
PLEA NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY
Defendant-Appellant was denied his rights under the 14th
Amend[ment] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §
10 when the trial court judge violated Crim.R. 11 by failing to advise
Defendant-Appellant that the State would have to prove each element of
the offense, renders the guilty plea invalid.
{¶ 5} A guilty plea is a complete admission of guilt. State v. Felton, 2d Dist.
Montgomery No. 27239, 2017-Ohio-761. “Consequently, a guilty plea waives all
appealable errors that may have occurred in the trial court, unless such error precluded
the defendant from knowingly, intelligently, and voluntarily entering his guilty plea * * *.”
Id. at ¶ 15, citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph
two of the syllabus; State v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423,
¶ 3.
{¶ 6} With this in mind, we conclude that assignments of error two, three, four, and
five raise issues which were waived by virtue of Kinstle’s guilty plea to the indicted charge.
These assignments of error are, as such, overruled.
{¶ 7} Kinstle’s first assignment of error asserts that he was denied the effective
assistance of trial counsel because counsel did not provide discovery to him, because
counsel did not file a suppression motion, and because counsel misled him “into entering
a guilty plea [based upon a] promise of [CCS] * * *.” The first two assertions do not relate
to Kinstle’s guilty plea, and, thus, are waived. If, as asserted, counsel informed Kinstle
that he would be sentenced to a term of CCS, this, arguably, could have affected the -6-
knowing, intelligent, and voluntary nature of the guilty plea. However, there is nothing in
the appellate record to support this assertion, and, in fact, the Crim.R. 11 colloquy
suggests otherwise. In any event, upon the record before us, there is no merit to
Kinstle’s assertion that trial counsel promised him that he would be sentenced to a term
of CCS. Based upon this and the waiver of the remaining ineffective assistance claims,
Kinstle’s first assignment of error is overruled.
{¶ 8} Kinstle’s sixth assignment of error asserts that the trial court did not inform
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[Cite as State v. Kinstle, 2019-Ohio-4478.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28264 : v. : Trial Court Case No. 2018-CR-683 : STEVEN KINSTLE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 1st day of November, 2019.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Appellant, Steven Kinstle, entered a guilty plea to aggravated possession of
drugs (methamphetamine), a third degree felony, and he was sentenced to serve a 30-
month prison term. After his appointed appellate counsel filed a brief under the authority
of California v. Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Kinstle filed
a pro se brief. Kinstle’s pro se assignments of error, with two exceptions, were waived
by virtue of his guilty plea. The two exceptions (counsel promised him that he would be
sentenced to community control sanctions (CCS) and the trial court did not inform him of
the State’s obligation to prove his guilt beyond a reasonable doubt), if accurate, could
have affected the knowing, intelligent, and voluntary nature of the guilty plea, but neither
contention is supported by the record. Thus, the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} As noted, Kinstle was indicted for aggravated possession of drugs
(methamphetamine), a third degree felony. Kinstle ultimately entered a guilty plea to the
charge. There was no agreement regarding his sentence, but a presentence
investigation was conducted. Kinstle did not appear for the scheduled sentencing
hearing, and, as a result, an arrest warrant was issued. Several months later, Kinstle
was arrested on the warrant, and a sentencing hearing was conducted. The trial court
sentenced Kinstle to a 30-month prison term. This appeal followed.
{¶ 3} Kinstle’s appointed counsel filed an Anders brief stating that she could not
find any potentially meritorious issues for appellate review. In his pro se brief, Kinstle
raises six assignments of error. -3-
Analysis
{¶ 4} Kinstle’s assignments of error are set forth as follows:
DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL
Trial counsel was ineffective for failure to provide Defendant-
Appellant with discovery after he was indicted, fail[ure] to suppress the
evidence after it was discovered that the evidence does not exist, and
mislead[ing] Defendant-Appellant into entering a guilty plea of the promise
of probation, which deprived Defendant-Appellant right to effective
assistance of counsel and due process.
DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS
WHEN THE STATE FAILED TO PROPERLY SERVE HIM WITH THE
INDICTMENT
Defendant-Appellant was denied his rights under the 6th & 14th
Amend[ments] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §
10 when the State failed to properly serve him the indictment before being
arraigned on the charge. Defendant-Appellant has never been served an
indictment.
BY THE STATE’S UNJUSTIFIABLE DELAY BETWEEN THE
COMMISSION OF THE OFFENSE AND THE INDICTMENT
Defendant-Appellant[’s] rights to due process under Ohio -4-
Const[itution] art[icle] I § 16 and the Fifth and Fourteenth Amend[ments] to
the U.S. Const[itution] were violated by the State’s unjustifiable delay
between the commission of the offense and Defendant-Appellant’s
indictment, which results in actual prejudice to the Defendant-Appellant.
WHEN THE STATE FAILED TO ANSWER DISCOVERY REQUEST
Defendant-Appellant[’s] rights to due process under Ohio
Const[itution] art[icle] I § 10 and the 6th & 14th Amend[ments] to the U.S.
Const[itution] when the State failed to answer counsel’s request for
discovery before Defendant-Appellant entered a plea of guilty, which
severally (sic) prejudiced him from knowing what evidence the State had
against him.
BY THE STATE USING SHAM LEGAL PROCESS TO INDICT
Defendant-Appellant was denied his rights under the 5th & 14th
Amend[ments] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §
10 when the State failed to apply the proper procedure when indicting the
Defendant-Appellant by not having the jury foreman or the prosecutor
signed (sic) the indictment, which denied Defendant-Appellant of due
process.
BY THE TRIAL JUDGE FAILING TO ADVISE HIM AT SENENCING THAT
THE STATE WOULD HAVE TO PROVE THE ELEMENTS OF THE -5-
OFFENSE BEYOND A REASONABLE DOUBT WHICH RENDERS THE
PLEA NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY
Defendant-Appellant was denied his rights under the 14th
Amend[ment] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §
10 when the trial court judge violated Crim.R. 11 by failing to advise
Defendant-Appellant that the State would have to prove each element of
the offense, renders the guilty plea invalid.
{¶ 5} A guilty plea is a complete admission of guilt. State v. Felton, 2d Dist.
Montgomery No. 27239, 2017-Ohio-761. “Consequently, a guilty plea waives all
appealable errors that may have occurred in the trial court, unless such error precluded
the defendant from knowingly, intelligently, and voluntarily entering his guilty plea * * *.”
Id. at ¶ 15, citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph
two of the syllabus; State v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423,
¶ 3.
{¶ 6} With this in mind, we conclude that assignments of error two, three, four, and
five raise issues which were waived by virtue of Kinstle’s guilty plea to the indicted charge.
These assignments of error are, as such, overruled.
{¶ 7} Kinstle’s first assignment of error asserts that he was denied the effective
assistance of trial counsel because counsel did not provide discovery to him, because
counsel did not file a suppression motion, and because counsel misled him “into entering
a guilty plea [based upon a] promise of [CCS] * * *.” The first two assertions do not relate
to Kinstle’s guilty plea, and, thus, are waived. If, as asserted, counsel informed Kinstle
that he would be sentenced to a term of CCS, this, arguably, could have affected the -6-
knowing, intelligent, and voluntary nature of the guilty plea. However, there is nothing in
the appellate record to support this assertion, and, in fact, the Crim.R. 11 colloquy
suggests otherwise. In any event, upon the record before us, there is no merit to
Kinstle’s assertion that trial counsel promised him that he would be sentenced to a term
of CCS. Based upon this and the waiver of the remaining ineffective assistance claims,
Kinstle’s first assignment of error is overruled.
{¶ 8} Kinstle’s sixth assignment of error asserts that the trial court did not inform
him that the State had the burden to prove each element of the offense beyond a
reasonable doubt, in violation of Crim.R. 11. Under Crim.R. 11(C)(2)(c), a trial court
must inform a defendant that the State must prove his guilt beyond a reasonable doubt.
This, of course, is a constitutional right a defendant waives by entering a guilty plea.
Since a constitutional right is involved, a trial court must strictly comply with the proof
beyond a reasonable doubt notification requirement. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 21; State v. Bishop, 156 Ohio St.3d 156, 2018-
Ohio-5132, 124 N.E.3d 766, ¶ 11. At the plea hearing, Kinstle was informed of the
elements of aggravated possession of drugs as a third degree felony, and the trial court
informed him of the State’s burden to prove his guilt beyond a reasonable doubt. The
trial court, in short, strictly complied with the Crim.R. 11(C)(2)(c) requirement to inform
the defendant that the State must prove his guilt beyond a reasonable doubt. Kinstle’s
sixth assignment of error is overruled.
{¶ 9} Finally, since an Anders brief was filed, we have reviewed the entire record.
This review has not revealed any potentially meritorious appellate issues regarding
Kinstle’s plea, sentence, or any other matter. -7-
Conclusion
{¶ 10} The judgment of the Montgomery County Common Plea Court is affirmed.
WELBAUM, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Andrew T. French Kirsten Knight Steven Kinstle Hon. Mary Katherine Huffman