STATE OF OHIO, Plаintiff-Appellee, - vs - JON GLUS, Defendant-Appellant.
CASE NO. 2012-G-3087
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
January 21, 2014
2014-Ohio-245
THOMAS R. WRIGHT, J.
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 11 C 000155. Judgment: Affirmed in part, reversed in part, and remanded.
Sean C. Buchanan, Buchanan Legal, P.O. Box 1443, Kent, OH 44240 (For Defendant-Appellant).
OPINION
THOMAS R. WRIGHT, J.
{¶1} Appellant, Jon Glus, appeals from the judgment of the Geauga County Court of Common Pleas, finding him guilty of two counts of rape and one count of pandering obscenity involving a minor. For the reasons discussed in this opinion, the trial court’s judgment is affirmed in part, reversed in part, and remanded.
{¶2} Appellant was indicted on two counts of rape, in violation of
{¶3} Approximately five months after his sentencing, appellant moved this court for leave to file a delayed appeal. This court granted appellant leave and appointed counsel to represent him. The originаl appointed counsel filed a brief on appellant’s behalf pursuant to Anders v. California, 386 U.S. 738 (1967). In this brief, the original counsel stated that, after thorough examination of the record, he found no prejudicial error committed by the trial court. As the sole potential error, the original counsel asked this court to review whether appellant’s change of plea was entered knowingly, intelligently, and voluntarily. The original counsel further sought permission to withdraw as appellate counsel as he found the appeal wholly frivolous. Finally, the original counsel certified he sent a copy of his brief to appellant with the instruction that he may file his own brief on his own behalf with this court.
{¶4} On January 2, 2013, this court entered judgment granting appellant leave to raise any additional arguments in support of his appeal within 30 days of the date of
{¶5} In Anders, the United States Supreme Court held that if appellate counsel, after a conscientious examination of the case, finds an appeal to be wholly frivolous, he should advise the court and request permission to withdraw. Id. at 744. This request to withdraw must be accompanied by a brief citing anything in the record that could arguably support an appeal. Id. Further, counsel must furnish his client with a copy of the brief and request to withdraw, and give the client an opportunity to raise any additional items. Id. Once these requirements have been met, the appellate court must review the entire record to determine whether the appeal is wholly frivolous. Id. If the court finds the appeal is wholly frivolous, the court may grant counsel‘s motion to withdraw and proceed tо a decision on the merits. Id. If, however, the court concludes the appeal is not frivolous, it must appoint new counsel for the client. Id.
{¶6} The original appointed counsel satisfied each of his duties under Anders. Accordingly, this court undertook an independent review of the еntire trial record. In addition to considering the sole potential error raised by the original counsel, we noted a second potential error regarding the procedure the trial court followed in imposing court costs as part of appellant’s sentencе. As a result, a new attorney was appointed for the purposes of submitting a second brief on behalf of appellant addressing the “court costs” issue. After this second brief was filed, the State of Ohio submitted an answer brief.
{¶7} In light of the foregoing briefing, two assignments of error are befоre this court for review in this appeal. We characterize the first as follows:
{¶9} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527 (1996).
{¶10}
{¶11} A review of the change-of-plea hearing demonstrates the trial court addressed appellant personally. The transcript shows appellant understoоd he was pleading guilty to two counts of rape, felonies of the first degree and one count of pandering obscenity involving a minor, a second degree felony. The record also demonstrates appellant was aware and understood the maximum penalties attaching to these crimes. Appellant stated he understood the court could proceed with judgment and sentence upon accepting his plea. Finally, the court specifically informed appellant
{¶12} The court specifically and literally advised appellant of each constitutional and non-constitutional right. Moreover, the court expressly asked aрpellant if he understood his rights, the nature of what he was waiving, and the ultimate effect of the guilty plea he was entering. It is therefore clear that the trial court met its obligations under
{¶13} Appellant’s first assigned еrror is wholly frivolous and without merit.
{¶14} As set forth in the brief filed by the second appointed counsel, appellant’s second assignment states:
{¶15} “The trial court erred by not informing [appellant] of community service requirements for failure to pay costs.”
{¶16} As of March 12, 2012, the date the trial сourt’s sentencing judgment was issued,
“ (A)(1) In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs. At thе time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
“(a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the cоurt may order the defendant to perform community service in an amount of not more
than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule. “(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.”
{¶20} In State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, the Supreme Court of Ohio held the foregoing statutory provisions are mandatory and a trial court must put a criminal defendant on notice of their content at the time of sentencing. Id. at ¶10. A trial court’s failure to provide this notification constitutes reversible error requiring a limited hearing on that issue. State v. Moore, 11th Dist. Geauga No. 2011-G-3027, 2012-Ohio-3885, ¶84; see also State v. Taylor, 11th Dist. Portage No. 2011-P-0090, 2012-Ohio-3890, ¶43.
{¶21} In further construing thе notification requirement of the foregoing version of
{¶22} In this case, the trial court did not provide either oral or written notice of the possibility that community service could be imposed for failing to timely pay court costs. In the absence of any notice under
{¶23} For the reasons discussed in this opinion, the judgment of the Geauga County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
COLLEEN MARY O’TOOLE, J., concurs,
DIANE V. GRENDELL, J., concurs with a Concurring Opinion.
DIANE V. GRENDELL, J., concurs with a Concurring Opinion.
{¶25} In this case, an Anders brief was submitted by Glus’ original appellate counsel, asserting that the appeal had no merit, but raising as a potential error the voluntariness of Glus’ plea. The majority, in a June 17, 2013 Judgment Entry, “noted a second potential error” regarding the failure of the trial court to advise Glus of the possibility of being ordered to perform community service in lieu of court costs. The majority then appointed a new attorney “for the purposes of submitting a second brief on behаlf of appellant,” addressing this issue. Supra at ¶ 6.
{¶26} This matter should have been resolved by the issuance of an opinion reversing and remanding to the trial court for the limited purpose of providing Glus the proper notification, especially given that the law of this district clearly holds that the сourt’s failure to give such notification constitutes error, as the cases cited by the majority reveal. Further briefing added nothing of value to this analysis and did not change the ultimate disposition of the case. No harm would have been caused to Glus by following this course of actiоn, since the reversal benefits Glus and will allow him to be properly advised of the law.
{¶27} The Fourth District applied this approach in Anders cases, remanding to the trial court for limited purposes when a clear violation of the law occurred in the trial court. State v. Marcum, 4th Dist. Hocking No. 11CA30, 2013-Ohio-951, ¶ 4 (“given that the trial court clearly erred when it failed to orally notify [the defendant] about the imposition of court costs,” a remand for the limited purpose of resolving the matter was
{¶28} This approach allows appellate courts to avoid expending considerable time and public taxpayers’ resources in conducting unnecessary additional briefing that is not required to afford Glus with a proper review of his appeal. Appointing new counsel prolonged the resolution of this matter and was not consistent with the purposes of judicial economy. Painesville City Local Schools Bd. of Edn. v. Ohio Assn. of Public School Emps., 11th Dist. Lake No. 2005-L-100, 2006-Ohio-3645, ¶ 15 (emphasizing the importance of speedy resolutions to conflicts to foster judicial economy by “unburdening crowded court dockets”) (citation omitted); State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 28 (finding that the court’s holding should “foster rather than thwart judicial economy”). Based solely on the unnecessary appointment of new сounsel and the additional briefing period, a delay of almost two additional months was added to the disposition of this appeal.
{¶29} Further, this court was not required under the law to appoint new counsel to brief the separate community service issue. As this court has held in State v. Martin, 11th Dist. Portage No. 2005-P-0097, 2007-Ohio-4961, separate counsel need not be appointed when further briefing could be performed by the defendant’s initial counsel.
{¶30} With the foregoing reservations, I concur.