State v. Rupert

2022 Ohio 329

• Court: Ohio Court of Appeals
• Decided: February 7, 2022
• Docket: 21CA0032-M
• Status: Published

Opinion

[Cite as State v. Rupert, 2022-Ohio-329.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 21CA0032-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE KAITLIN RUPERT COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 21CR0141

DECISION AND JOURNAL ENTRY

Dated: February 7, 2022

HENSAL, Presiding Judge.

{¶1} Kaitlin Rupert appeals from the judgment of the Medina County Court of

Common Pleas. This Court affirms.

I.

{¶2} A grand jury indicted Ms. Rupert on two counts of endangering children and one

count of tampering with evidence. Ms. Rupert initially pleaded not guilty. The trial court later

held a change of plea hearing via videoconference wherein the State agreed to dismiss the

tampering-with-evidence count and one count of endangering children. In return, Ms. Rupert

agreed to plead guilty to one count of endangering children under Revised Code Section

2919.22(B)(1), (E)(2)(d), a second-degree felony.

{¶3} The trial court engaged in a Criminal Rule 11(C)(2) plea colloquy with Ms.

Rupert. It advised her, in part, that the maximum sentence she could receive for the charged

offense was an indefinite prison term between eight to twelve years. After the colloquy, Ms. 2

Rupert pleaded guilty, and the trial court accepted her plea. At the conclusion of that hearing,

the trial court set the matter for sentencing at a later date.

{¶4} At the sentencing hearing, Ms. Rupert’s counsel acknowledged that a second-

degree felony carries a presumption in favor of a prison sentence, but argued that Ms. Rupert

should be sentenced to probation. The trial court then recited some of the facts surrounding the

charged offense, and determined that a prison sentence was appropriate. It sentenced her to an

indefinite prison term of a minimum of six years and a maximum of not more than nine years.

Ms. Rupert now appeals, raising two assignments of error for this Court’s review.

ASSIGNMENT OF ERROR I

APPELLANT DID NOT ENTER HER GUILTY PLEA KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY BECAUSE THE TRIAL COURT FAILED TO PROPERLY INFORM HER OF THE MAXIMUM PENALTIES AS REQUIRED BY CRIM.R. 11(C)(2)(A).

{¶5} In her first assignment of error, Ms. Rupert argues that she did not knowingly,

intelligently, or voluntarily plead guilty because the trial court failed to advise her that the

penalty for the charged offense includes a presumption in favor of a prison term. As a result, she

argues, the trial court did not advise her of the maximum penalty as required under Criminal

Rule 11(C)(2)(a).

{¶6} As previously noted, Ms. Rupert pleaded guilty to endangering children under

Section 2919.22(B)(1), (E)(2)(d), a second-degree felony for which a presumption in favor of a

prison term applies. Section 2929.13(D)(1). Among other advisements during the plea colloquy,

the trial court advised Ms. Rupert that the maximum sentence she could receive was an indefinite

prison term between eight and twelve years. It did not inform her that there was a presumption

in favor of a prison term. 3

{¶7} Ms. Rupert’s argument requires this Court to conclude that failing to advise a

defendant that the charged offense carries a presumption in favor of a prison term is akin to

failing to advise a defendant of the maximum penalty for that offense. She has pointed this

Court to no authority that has reached that conclusion. Instead, courts have reached the opposite

conclusion, rejecting the same argument Ms. Rupert has raised on appeal. See, e.g., State v.

Raymond, 8th Dist. Cuyahoga No. 99177, 2013-Ohio-3144, ¶ 7-10 (analyzing Rule 11(C)(2)(a)

and rejecting the defendant’s argument that the trial court failed to inform him of the maximum

penalty for his offense because it did not inform him of the presumption in favor of a prison

term); State v. Stevenson, 8th Dist. Cuyahoga No. 106128, 2018-Ohio-2645, ¶ 2 (same); State v.

Gales, 2d Dist. Greene No. 97-CA-114, 1998 WL 698363, *4 (Oct. 9, 1998) (“We conclude that

a trial judge is not required, when accepting a guilty plea, to inform a defendant of the statutory

presumption in favor of incarceration for first -and second-degree felonies, and to ascertain that

the defendant understands that statutory presumption.”). Ms. Rupert has not met her burden of

establishing error on appeal. State v. Mastice, 9th Dist. Wayne No. 06CA0050, 2007-Ohio-4107,

¶ 7 (“An appellant has the burden of demonstrating error on appeal.”). Accordingly, her first

assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY IMPOSING AN INDEFINITE PRISON SENTENCE UPON APPELLANT WHICH IS UNCONSTITUTIONAL.

{¶8} In her second assignment of error, Ms. Rupert asserts that the trial court erred by

imposing an indefinite prison sentence because such sentences are unconstitutional. She asserts

that her trial counsel did not object on the basis of the Reagan Tokes Law, and that she is raising

this issue on appeal to preserve her rights for any future remedies and/or litigation. She also

asserts that the issues regarding her sentence are presently before the Ohio Supreme Court in 4

State v. Maddox, No. 2020-1266, as well as 11 other cases, and that she incorporates the

arguments made by the defendants in those cases into her merit brief.

{¶9} We decline to address the merits of Ms. Rupert’s second assignment of error

because she has failed to properly develop an argument in support of her position. Appellate

Rule 16(A) requires an appellant’s brief to include “[a]n argument containing the contentions of

the appellant with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies.” Ms. Rupert’s second assignment of error does not satisfy this rule.

Instead, her merit brief contains general references to the constitution, the Reagan Tokes Law,

and to other cases presently before the Ohio Supreme Court. Without offering any analysis, she

then attempts to incorporate the arguments made by the defendants in those cases into her merit

brief. Ms. Rupert, however, has the burden of establishing error on appeal, and cannot simply

incorporate arguments from other cases into her merit brief. See Mastice at ¶ 7 (“An appellant

has the burden of demonstrating error on appeal.”); In re T.D., 9th Dist. Wayne No. 16AP0035,

2018-Ohio-204, ¶ 14 (“Parties * * * cannot simply incorporate arguments by reference to other

documents.”). Because Ms. Rupert has not properly developed an argument in support on her

second assignment of error, we decline to address it. Accordingly, Ms. Rupert’s second

III.

{¶10} Ms. Rupert’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

Judgment affirmed. 5

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

TEODOSIO, J. CALLAHAN, J. CONCUR.

APPEARANCES:

THOMAS REIN, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.