STATE OF OHIO, Plaintiff-Appellee -vs- RICHARD R. FINCH, Defendant-Appellant
Case No. 11 CA 6
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 25, 2011
[Cite as State v. Finch, 2011-Ohio-4273.]
Hon. W. Scott Gwin, P. J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 158; JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee
KENNETH W. OSWALT
PROSECUTING ATTORNEY
TRACY F. VAN WINKLE
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
For Defendant-Appellant
TODD BARSTOW
4185 East Main Street
Columbus, Ohio 43213
{¶1} Defendant-Appellant Richard R. Finch appeals his conviction entered in the Licking County Court of Common Pleas.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On April 5, 2010, the Licking County Grand Jury indicted Appellant on nine counts of Sexual Imposition, misdemeanors of the third degree; two counts of Importuning, a felony of the third degree; one count of Unlawful Sexual Conduct with a Minor, a felony of the fifth degree; one count of Sexual Imposition, and three counts of Compelling Prostitution, felonies of the third degree. These charges were based upon several acts of sexual contact and conduct with teenage males beginning in mid-to-late 2009 and continued until the spring of 2010. Some of the males were minors at the time of the offenses.
{¶4} On December 6, 2010, Appellant entered pleas of guilty to seven counts of Sexual Imposition, three counts of Importuning and one count of Unlawful Sexual Conduct with a Minor. (T. at 3-14). Pursuant to the State‘s motion, the trial court dismissed the remaining counts. (T. 3-4).
{¶5} After accepting Appellant‘s pleas, the trial court proceeded to sentencing, and conducting a sentencing hearing. (T. 23-48). The trial court sentenced Appellant to a term of seven years of incarceration. (T. at 48). The trial court did not inform Appellant of his right to appeal under
{¶6} The Judgment Entry of sentence was filed on December 17, 2010.
{¶7} Appellant now appeals, raising the following sole assignment of error:
{¶8} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY ACCEPTING HIS GUILTY PLEAS WITHOUT NOTIFYING IM OF HIS APPELLATE RIGHTS.”
I.
{¶9} In Appellant‘s sole assignment of error, Appellant argues that the trial court erred in failing to notify him as to his right to appeal. We disagree.
{¶10} Appellant contends that the trial court failed to comply with
{¶11}
{¶12} In Veney, supra, the Ohio Supreme Court held “[a] trial court must strictly comply with
{¶13} Strict compliance with
{¶14} In the case sub judice, Appellant concedes that the appeal of a criminal conviction is not a right guaranteed by the
{¶15} ” ‘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. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.’ ... To demonstrate prejudice in this context, the defendant must show that the plea would otherwise not have been entered.” Veney, supra, at ¶ 15 (quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990)).
{¶16}
{¶17} “(B) Notification of right to appeal
{¶18} “(1) ***
{¶20} “(3) If a right to appeal or a right to seek leave to appeal applies under division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the following:
{¶21} “(a) That if the defendant is unable to pay the cost of an appeal, the defendant has the right to appeal without payment;
{¶22} “(b) That if the defendant is unable to obtain counsel for an appeal, counsel will be appointed without cost;
{¶23} “(c) That if the defendant is unable to pay the costs of documents necessary to an appeal, the documents will be provided without cost;
{¶24} “(d) That the defendant has a right to have a notice of appeal timely filed on his or her behalf.
{¶25} “Upon defendant‘s request, the court shall forthwith appoint counsel for appeal.”
{¶26} Appellant herein argues that the trial court failed to properly inform him of his right to appeal. As set forth above, the trial court‘s duty to notify Appellant as to the right to appeal does not arise until sentencing. It is not a requirement to be performed prior to the acceptance of a plea and has no bearing on whether the plea was knowingly, intelligently or voluntarily made. (See State v. Atkinson, 9th Dist. No. 05CA0079-M, 2006-Ohio-5806 at ¶ 22;
{¶28} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
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JUDGES
JWW/d 0808
STATE OF OHIO, Plaintiff-Appellee -vs- RICHARD R. FINCH, Defendant-Appellant
Case No. 11 CA 6
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES