STATE OF OHIO v. GARY STEPHEN
CASE NO. 14 BE 0037
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
June 30, 2016
[Cite as State v. Stephen, 2016-Ohio-4803.]
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Belmont County, Ohio Case No. 14 CR 020. JUDGMENT: Affirmed.
For Plaintiff-Appellee Attorney Daniel P. Fry Belmont County Prosecutor Attorney Helen Yonak Assistant Prosecutor 147-A West Main Street Saint Clairsville, Ohio 43950
For Defendant-Appellant Attorney Thomas Ryncarz 3713 Central Avenue Shadyside, Ohio 43947
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: June 30, 2016
{¶1} Defendant-Appellant, Gary Stephen, appeals the judgment of the Belmont County Court of Common Pleas convicting him of two counts of sexual battery and sentencing him to nine years in prison. Contrary to Stephen‘s assertions on appeal, his plea was knowing, voluntary and intelligently made. He received effective assistance of counsel and the trial court did not err by imposing consecutive sentences. Accordingly the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} Stephen was indicted by the Belmont County Grand Jury on one count of rape,
Plea
{¶3} In his first of three assignments of error, Stephen asserts:
The Appellant‘s guilty plea was not knowingly, voluntarily, and intelligently made in violation of Criminal Rule 11.
{¶4} A guilty plea must be made knowingly, voluntarily and intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7. If it is not, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness of a plea, this court must consider all of the relevant circumstances surrounding it.
{¶5} The trial court must engage in a
{¶6} The constitutional rights the defendant must be notified of are the right against self-incrimination, to a jury trial, to confront one‘s accusers, to compel witnesses to testify by compulsory process, and to have the state prove guilt beyond a reasonable doubt.
{¶7} The nonconstitutional rights the defendant must be informed of are the effect of his plea, the nature of the charges, and the maximum penalty, which includes an advisement on post-release control if applicable. State v. Anderson, 7th Dist. No. 11 MA 125, 2012-Ohio-2759, ¶ 14. Further, a defendant must be notified, if applicable, that he is not eligible for probation or the imposition of community control sanctions. Id. Finally, this encompasses notifying the defendant that the court may proceed to judgment and sentence after accepting the guilty plea.
{¶8} The trial court must substantially comply with these requirements. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “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.” Id. If the trial court did not substantially comply with advising the defendant of his nonconstitutional
{¶9} The trial court‘s advisement of Stephen‘s constitutional rights strictly complied with
{¶10} Stephen contends that he was not advised that the sexual battery charge requires a mandatory prison sentence pursuant to
{¶11}
Ineffective Assistance of Counsel
{¶12} In his second of three assignments of error, Stephen asserts:
The Appellant was denied the effective assistance of trial counsel.
{¶13} To prove an allegation of ineffective assistance of counsel, the defendant must satisfy a two-prong test; that counsel‘s performance has fallen below an objective standard of reasonable representation, and that he was prejudiced by counsel‘s performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
{¶14} “A guilty plea waives the right to allege ineffective assistance of counsel, except to the extent the errors caused the plea to be less than knowing and voluntary.” State v. Huddleson, 2d Dist. No. 20653, 2005-Ohio-4029, ¶ 9 citing State v. Spates, 64 Ohio St.3d 269, 1992-Ohio-130, 595 N.E.2d 351.
{¶15} Stephen first contends that his attorney was ineffective because he failed to inform him that the jail time for sexual battery was mandatory, which we have rejected above. Stephen also argues that trial counsel should have written the possible sentences for the crime of sexual battery on the written plea form. However, the information is included on the plea form and was also relayed to Stephen during the plea hearing to which he stated he understood.
{¶16} As Stephen‘s plea was knowingly, voluntarily and intelligently made, he has failed to establish deficient performance by his attorney. Accordingly, Stephen‘s second assignment of error is meritless.
Consecutive Sentence
{¶17} In his final assignment of error, Stephen asserts:
The trial court committed error in imposing an aggregate sentence of nine (9) years in prison because the trial court abused its discretion in imposing said sentence upon the Appellant.
{¶18} The Ohio Supreme Court recently resolved the question of what standard of review to apply to felony sentences challenged on appeal: “Applying the plain language of
{¶19} Stephen was afforded his allocution rights pursuant to
{¶20} The nine year prison sentence Stephen received is within the range for the charges. The trial court considered the principles and purposes of felony sentencing and the sentencing factors.
{¶21} With regard to consecutive sentences, the provisions of H.B. 86, codified as
{¶22} The findings supporting consecutive sentences must be made both at the sentencing hearing and in the entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. However, a trial court need not state reasons to support its findings nor is it required to use any “magic” or “talismanic” words, so long
{¶23} Here, the trial court made the following findings with regard to the imposition of consecutive sentences during the hearing:
In accord with
2929.14(C)(4) , I find that consecutive sentences are necessary to protect the public from future crime by this defendant or others, and that consecutive sentences are not disproportionate to the seriousness of the offenses. And the Court specifically finds that the harm in this case was so great that a single term does not reflect the seriousness of the conduct: i.e., defendant having previously been convicted of gross sexual imposition commits two separate counts of sexual battery against the same victim with knowledge that said victim‘s judgment is obviously impaired. And combined with his lack of genuine remorse, such conduct demonstrates that consecutive terms are necessary to protect the public from future acts by this defendant.
{¶24} The sentencing entry stated almost verbatim what was said at the hearing. The trial court made the findings necessary to support the imposition of consecutive sentences pursuant to
{¶25} In sum, Stephen‘s plea was knowing, voluntary and intelligently made. Stephen received effective assistance of counsel and the trial court properly imposed consecutive sentences. Accordingly, the judgment of the trial court is affirmed.
Donofrio, P. J., concurs.
Waite, J., concurs.