State of Ohio, Plaintiff-Appellee, v. Jason A. Fetherolf, Defendant-Appellant.
No. 19AP-129 (C.P.C. No. 18CR-431)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 10, 2019
[Cite as State v. Fetherolf, 2019-Ohio-4176.]
(REGULAR CALENDAR)
Rendered on October 10, 2019
On brief: Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
On brief: Philip C. Popa, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Jason A. Fetherolf, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of two counts of sexual battery and four counts of gross sexual imposition. For the following reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} In January 2018, the Franklin County Grand Jury indicted Fetherolf on two counts of rape in violation of
{¶ 3} Fetherolf did not timely appeal, but this court granted his motion for leave to file a delayed appeal pursuant to
II. Assignment of Error
{¶ 4} Fetherolf assigns the following error for our review:
The trial court erred when it sentenced defendant since the trial court was required to engage defendant in a “colloquy” to ensure that defendant understood the legal import of his plea.
III. Discussion
{¶ 5} In his sole assignment of error, Fetherolf contends the trial court erred in not engaging in an adequate colloquy to ensure that his plea was entered knowingly, intelligently, and voluntarily. He argues this court should nullify his “Alford plea” to the two counts of sexual battery. He does not challenge his gross sexual imposition convictions. This assignment of error lacks merit.
{¶ 6}
{¶ 7} Pursuant to
{¶ 8} As to nonconstitutional rights, the trial court must inform the defendant of the effect of his plea, the nature of the charges, and the maximum penalty, which includes an advisement on post-release control if applicable. The trial court must also inform the defendant, if applicable, that he is not eligible for probation or the imposition of community control sanctions. Finally, the trial court must notify the defendant that the court may proceed to judgment and sentence after accepting the guilty plea.
{¶ 9} In cases that involve an “Alford plea,” there is a “heightened duty upon the trial court to ensure that the defendant‘s rights are protected and that entering the plea is a rational decision on the part of the defendant.” State v. Carey, 3d Dist. No. 14-10-25, 2011-Ohio-1998, ¶ 7. The term “Alford plea” derives from the United States Supreme Court‘s decision in North Carolina v. Alford, 400 U.S. 25 (1970), wherein the Court held that guilty pleas linked with claims of innocence may be accepted provided the “defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” Id. at 37. Although an Alford plea allows a defendant to maintain his factual innocence, the plea has the same legal effect as a guilty plea. Carey at ¶ 6.
{¶ 10} “Because pleas accompanied by protestations of innocence give rise to an inherent suspicion” that a plea may not have been knowing, voluntary, and intelligent, “Alford and the cases following it have made it clear that guilty pleas accompanied by an assertion of innocence should not be accepted unless there is a factual basis for the plea,
{¶ 11} Fetherolf generally argues the trial court did not adequately ensure that he was proceeding knowingly, voluntarily, and intelligently, when it accepted his Alford plea as to the two counts of sexual battery. More particularly, he asserts there was an inadequate discussion of the benefits that might inure to him by entering an Alford plea. He also asserts that he received no benefit from entering the Alford plea. These arguments are unpersuasive. The benefit to Fetherolf in pleading to lesser offenses was obvious—it removed the significant risk to him of going to trial and being convicted of the greater offenses. At the plea hearing, the state summarized the facts of the case, stating in part that the 12-year-old victim had reported that Fetherolf had repeatedly sexually assaulted her by touching her chest, buttocks, and vaginal area, and that “on a couple of occasions the touching progressed to digital vaginal penetration and that there was one instance of cunnilingus.” (June 21, 2018 Tr. at 13.) If the victim would have testified to these facts at a trial, her testimony would have provided strong evidentiary support for the rape charges against Fetherolf. Thus, there was sufficient information before the trial court to determine that Fetherolf‘s decision to plead guilty to the reduced charges of sexual battery pursuant to Alford was a rational decision. Consequently, we conclude the trial court did not err in accepting Fetherolf‘s Alford plea to the two counts of sexual battery.
{¶ 12} Accordingly, we overrule Fetherolf‘s sole assignment of error.
IV. Disposition
{¶ 13} Having overruled Fetherolf‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and BEATTY BLUNT, J., concur.