State v. Salyer

2011 Ohio 5559

Opinion

[Cite as State v. Salyer, 2011-Ohio-5559.]

IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 10CA12

vs. : T.C. CASE NO. 09CR250

MICHAEL LEE SALYER : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 28th day of October, 2011.

Nick A. Selvaggio, Pros. Attorney, 200 N. Main Street, Office No. 102, Urbana, OH 43078, Atty. Reg. No.0055607 Attorney for Plaintiff-Appellee

Gary C. Schaengold, Atty. Reg. No.0007144, 707 Shroyer Road, Suite B, Dayton, OH 45419 Attorney for Defendant-Appellant

GRADY, P.J.:

{¶ 1} Defendant, Michael Salyer, was indicted by the grand

jury on one count of rape involving a child under thirteen years

of age, R.C. 2907.02(A)(1)(b), and one count of gross sexual

imposition involving a child under thirteen years of age, with

a previous conviction for a similar sexual offense involving a 2

minor child, R.C. 2907.05(A)(4), (C)(2)(b). Defendant entered

a guilty plea to an amended charge of attempted rape, R.C.

2923.02(A) and 2907.02(A)(1)(b), as a felony of the first degree

pursuant to a negotiated plea agreement. In exchange, the State

dismissed the gross sexual imposition charge. The trial court

sentenced Defendant to the maximum allowable ten year prison term,

and classified Defendant as a Tier III sexual offender.

{¶ 2} Defendant timely appealed to this court from his

conviction and sentence. Defendant’s appellate counsel filed an

Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.

1396, 19 L.Ed.2d 493, stating that he 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.

{¶ 3} Defendant’s appellate counsel has identified two

possible issues for appeal. Appellant counsel first raises an

issue concerning the trial court’s compliance with Crim.R. 11(C)(2)

in accepting Defendant’s guilty plea.

{¶ 4} Crim.R. 11(C)(2) governs the trial court’s acceptance

of guilty or no contest pleas in felony cases and provides:

{¶ 5} “(2) In felony cases the court may refuse to accept a 3

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:

{¶ 6} “(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

community control sanctions at the sentencing hearing.

{¶ 7} “(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.

{¶ 8} “(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.”

{¶ 9} 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 4

accepting guilty or no contest pleas portrays those qualities.

{¶ 10} In State v. McGrady, Greene App. No. 2009CA60,

2010-Ohio-3243, at ¶11-13, this court stated:

{¶ 11} “In order for a plea to be given knowingly and

voluntarily, the trial court must follow the mandates of Crim.

R. 11(C). If a defendant's guilty plea is not voluntary and knowing,

it has been obtained in violation of due process and is void. Boykin

v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d

274.

{¶ 12} “A defendant who challenges his guilty plea on the basis

that it was not knowingly, intelligently, and voluntarily made

must show a prejudicial effect. State v. Stewart (1977), 51 Ohio

St.2d 86, 93; Crim. R. 52(A). The test is whether the plea would

have been otherwise made. Id. at 108.

{¶ 13} “A trial court must strictly comply with Crim. R. 11

as it pertains to the waiver of federal constitutional rights.

These include the right to trial by jury, the right of

confrontation, and the privilege against self-incrimination. Id.

at 243-44. However, substantial compliance with Crim. R. 11(C)

is sufficient when waiving non-constitutional rights. State v.

Nero (1990), 56 Ohio St.3d 106, 108. The non-constitutional rights

that a defendant must be informed of are the nature of the charges

with an understanding of the law in relation to the facts, the 5

maximum penalty, and that after entering a guilty plea or a no

contest plea, the court may proceed to judgment and sentence. Crim.

R. 11(C)(2)(a)(b); State v. Philpott, Cuyahoga App. No. 74392,

citing McCarthy v. U.S. (1969), 394 U.S. 459, 466, 89 S.Ct. 1166,

22 L.Ed.2d 418. 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. Nero, 56 Ohio St.3d at 108.”

{¶ 14} Our review of the plea hearing demonstrates that the

trial court scrupulously complied with all of the requirements

in Crim.R. 11(C)(2), and advised Defendant about all of the

constitutional rights he would give up by pleading guilty, as well

as all of the other non-constitutional matters. This record amply

demonstrates that Defendant’s guilty plea was entered knowingly,

intelligently and voluntarily. This assignment of error lacks

arguable merit.

{¶ 15} Appellate counsel also raises an issue concerning

Defendant’s maximum sentence.

{¶ 16} In State v. Jeffrey Barker, Montgomery App. No. 22779,

2009-Ohio-3511, at ¶36-37, we wrote:

{¶ 17} “The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing 6

maximum, consecutive, or more than minimum sentences. State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph 7 of the

syllabus. Nevertheless, in exercising its discretion the trial

court must consider the statutory policies that apply to every

felony offense, including those set out in R.C. 2929.11 and 2929.12.

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d

1, at ¶37.

{¶ 18} “When reviewing felony sentences, an appellate court

must first determine whether the sentencing court complied with

all applicable rules and statutes in imposing the sentence,

including R.C. 2929.11 and 2929.12, in order to find whether the

sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912. If the sentence is not clearly and convincingly

contrary to law, the trial court’s decision in imposing the term

of imprisonment must be reviewed under an abuse of discretion

standard. Id.”

{¶ 19} This record demonstrates that in imposing its sentence

the trial court considered the purposes and principles of felony

sentencing, R.C. 2929.11, and the seriousness and recidivism

factors, R.C. 2929.12. The court also considered the presentence

investigation report and the oral statements of counsel and

Defendant at sentencing. The ten year sentence the court imposed

on the attempted rape charge, while the maximum sentence, is 7

nevertheless within the authorized range of available punishments

for a felony of the first degree, which is three to ten years.

R.C. 2929.14(A)(1). The court also informed Defendant about

mandatory post release control requirements and the consequences

for violating post release control. Defendant’s sentence is not

clearly and convincingly contrary to law. Kalish.

{¶ 20} Furthermore, the court’s ten year sentence is not an

abuse of discretion because this record supports the trial court’s

ten year sentence. Defendant attempted to rape his twelve year

old granddaughter. This offense occurred while Defendant was on

post-release control after serving four years in prison for a

similar sexual offense involving other children. Additionally,

Defendant has a history of criminal convictions, many of which

involve assaults and violent behavior. Previous sanctions

including community control and sex offender treatment programs

have been unsuccessful. Finally, Defendant shows no genuine

remorse and, from his statements reported in the presentence

investigation report, denies any culpability. We see no abuse

of discretion on the part of the trial court in imposing the maximum

ten year sentence. This assignment of error lacks arguable merit.

{¶ 21} 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 8

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. Gary C. Schaengold, Esq. Michael L. Salyer Hon. Roger B. Wilson