State v. CuthbertState v. Cuthbert
For Plaintiff-Appellee
GREGG MARX Assistant Prosecuting Attorney Fairfield County, Ohio 201 S. Broad Street, Ste. 400 Lancaster, Ohio 43130
For Defendant-Appellant
DAVID A. SAMS P.O. Box 40 West Jefferson, Ohio 43162
Edwards, J.
{¶1} Defendant-appellant, Frank Cuthbert, appeals his conviction and sentence from the Fairfield County Court of Common Pleas on one count each of rape, gross sexual imposition and weapons under disability. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 9, 2008, the Fairfield County Grand Jury indicted apрellant on one count of rape in violation of
{¶3} Thereafter, on August 15, 2008, appellant entered a plea of guilty to the charges contained in the indictment. As memorialized in a Judgment Entry filed on September 29, 2008, appellant was sentenced to an aggregate prison sentence of nineteen (19) years.
{¶4} Appellant now raises the following assignment of error on appeal:
{¶5} “THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS UNDER ARTICLE I, SECTIONS 5 AND 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AS HIS PLEA WAS UNKNOWING, UNINTELLIGENT AND INVOLUNTARY.”
{¶6} Appellant, in his sole assignment of error, argues that his guilty plea was not voluntary, knowing or intelligent, because the trial court failed to inform him of his constitutional right to a unanimous jury verdict and because the trial court failed to inform him that he was not eligible for judicial release.
{¶7} In State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, the Ohio Supreme Court reviewed a defendant‘s claim that the trial court did not adequately inform him of his rights. Ketterer cited State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464, wherein paragraph one of the syllаbus, the court held there was no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial. The Ketterer court explained that the trial court was not required to specifically advise the defendant on the need for jury unanimity. Ketterer, supra at paragraph 68, citing State v. Bays, 87 Ohio St.3d 15, 1999-Ohio-216, 716 N.E.2d 1126, which in turn cited United States v. Martin (C.A.6 1983), 704 F.2d 267. In Bays, the Supreme Court held “a defendant need not have a complete or technical understanding оf the jury trial right in order to knowingly and intelligently waive it,” id. at 20.
{¶8} Several courts, including the Ohio Supreme Court, have held there is no requirement that a trial court inform a defendant of his right to a unanimous verdict. State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶ 44-46 (accused need not be told that jury unanimity is necessary to convict аnd to impose sentence); State v. Smith, Muskingum App. No. CT2008-0001, 2008-Ohio-3306 at ¶ 27 (there is no explicit requirement in
{¶9} Appellant also argues that his plea was not knowing, intelligent and voluntary because the trial court failed to inform him that he was ineligible for judicial release.
{¶10} Pursuant to the terms of
{¶11}
{¶12} In State v. Smith, Muskingum App No. CT2007-0073, 2008-Ohio-3306, the appellant argued that his plea was not knowing, intelligent and voluntary because he was not informed by the trial court that he was not eligible for judicial release.
{¶13} In rejecting the appellаnt‘s argument, this Court stated, in relevant part, as follows: “Judicial release, as with the former early release through parole, ‘is distinct
{¶15} Accordingly, the judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Edwards, J.
Wise, P.J. and
Delaney, J. concur
JUDGES
JAE/d0821
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas is affirmed. Costs assessed to appellant.
JUDGES