[Cite as State v. Finch,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 11 CA 6 RICHARD R. FINCH

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 158

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 25, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT TODD BARSTOW PROSECUTING ATTORNEY 4185 East Main Street TRACY F. VAN WINKLE Columbus, Ohio 43213 ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 11 CA 6 2

Wise, J.

{¶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 Crim.R. 32(B)(2) and (3).

{¶6} The Judgment Entry of sentence was filed on December 17, 2010.

{¶7} Appellant now appeals, raising the following sole assignment of error: Licking County, Case No. 11 CA 6 3

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 Crim.R. 11 by

not advising him at the time of his plea that he had the right to appeal. He argues that

as a result of such failure, his guilty plea was not knowing, intelligent and voluntary.

{¶11} Crim.R. 11(C) sets forth the trial court’s duties when accepting a guilty

plea. Notifications required pursuant to Crim.R. 11 are classified as notifications of

constitutional rights and non-constitutional notifications. State v. Veney,

,

, 2008–Ohio–5200, at ¶ 14.

{¶12} In

the Ohio Supreme Court held “[a] trial court must strictly

comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony

plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's

accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require

the state to prove guilt beyond a reasonable doubt, and (5) the privilege against

compulsory self-incrimination. When a trial court fails to strictly comply with this duty,

the defendant's plea is invalid.” (See also In re Winship,

, 90 S.Ct. Licking County, Case No. 11 CA 6 4

1068,

(1970); Boykin v. Alabama,

,

,

(1969); State v. Ballard,

,

(1981)).

{¶13} Strict compliance with Rule 11 is required regarding the above

enumerated rights.

For all other notifications required by Rule 11,

however, “substantial compliance is sufficient .” Id. at ¶ 14,

(citing State

v. Stewart,

,

(1977)).

{¶14} In the case sub judice, Appellant concedes that the appeal of a criminal

conviction is not a right guaranteed by the United States Constitution and is not one of

the enumerated “strict compliance” rights set forth in Crim.R.11(C)(2). See McKane v.

Durston (1894),

. Accordingly, the proper standard for considering

Appellant’s claims is substantial compliance.

{¶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.”

at ¶ 15 (quoting

State v. Nero,

,

(1990)).

{¶16} Criminal Rule 32, however, does provide for a criminal defendant to be

advised by the trial court as to his right to appeal, wherein it states in relevant part:

{¶17} “(B) Notification of right to appeal

{¶18} “(1) *** Licking County, Case No. 11 CA 6 5

{¶19} “(2) After imposing sentence in a serious offense, the court shall advise

the defendant of the defendant's right, where applicable, to appeal or to seek leave to

appeal the sentence imposed.

{¶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,

; Crim.R. 32(B)). Licking County, Case No. 11 CA 6 6

{¶27} Upon review, while we find that the record shows that the trial court did not

inform Appellant of his right to appeal under Crim.R. 32(B)(2) and (3), we find that the

Appellant has failed to show prejudice. Appellant filed an appeal in this matter and is

represented by counsel. Accordingly, we find no reversible error. State v. Whetstone,

Licking App. No. 2010 CA 00132, 20100-Ohio-1957; See also State v. Middleton,

Preble App. No. CA2004-01-003,

.

{¶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 Licking County, Case No. 11 CA 6 7

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RICHARD R. FINCH : : Defendant-Appellant : Case No. 11 CA 6

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