[Cite as State v. Peyton,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2016-CA-41 : v. : Trial Court Case No. 2016-CR-439 : BRYAN K. PEYTON : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 20th day of October, 2017.

...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

GREGORY K. LIND, Atty. Reg. No. 0055227, 20 South Limestone Street, Suite 340, Springfield, Ohio 45502 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Bryan K. Peyton, appeals from his conviction in the

Greene County Court of Common Pleas after he entered a no contest plea to one count

of aggravated assault. On June 14, 2017, Peyton’s assigned counsel filed a brief under

the authority of Anders v. California,

,

,

(1967),

indicating there are no issues with arguable merit to present on appeal. As a result, on

June 21, 2017, we notified Peyton that his counsel found no meritorious claim for review

and granted him 60 days to file a pro se brief assigning any errors. Peyton did not file a

pro se brief. After conducting a review of the record as prescribed by Anders, we find no

issues with arguable merit for appeal.

Facts and Course of Proceedings

{¶ 2} On August 23, 2016, the State filed a bill of information charging Peyton with

one count of aggravated assault in violation of R.C. 2903.12(A)(1), a felony of the fourth

degree. The charge arose after Peyton struck the victim, George Bauer, multiple times

with his cane causing Bauer serious injuries, including the loss of his left eye.

{¶ 3} After waiving his right to a grand jury indictment, on September 28, 2016,

Peyton appeared before the trial court and entered a no contest plea to aggravated

assault. During the plea hearing, the trial court conducted a Crim.R. 11 plea colloquy,

accepted Peyton’s no contest plea, and found Peyton guilty as charged in the bill of

information. The trial court then ordered a presentence investigation report and

scheduled Peyton’s sentencing hearing for December 1, 2016.

{¶ 4} At the sentencing hearing, the trial court indicated that it had considered the -3-

presentence investigation report, victim impact statements, statements of the parties,

sentencing factors in R.C. 2929.13(B), purposes and principles of sentencing in R.C.

2929.11, and the seriousness and recidivism factors in R.C. 2929.12. After these

considerations, and because Peyton’s offense involved serious physical harm to the

victim, the trial court decided to impose a prison term as opposed to community control

sanctions. The trial court then sentenced Peyton to 18 months in prison and ordered

him to pay court costs and restitution in the amount of $7,685.19 for the victim’s medical

bills after considering Peyton’s present and future ability to pay.

{¶ 5} On December 27, 2016, Peyton filed the instant appeal from his conviction

and sentence. As previously noted, Peyton’s appellate counsel submitted an Anders

brief on Peyton’s behalf indicating there are no issues with arguable merit to present on

appeal.

Law and Analysis

{¶ 6} When conducting an Anders review, this court must conduct an independent

review of the record to determine if the appeal at issue is wholly frivolous. Anders,

,

,

. “Anders equates a frivolous appeal with

one that presents issues lacking in arguable merit. An issue does not lack arguable merit

merely because the prosecution can be expected to present a strong argument in reply,

or because it is uncertain whether a defendant will ultimately prevail on that issue on

appeal.” State v. Marbury, 2d Dist. Montgomery No. 19226,

, ¶ 8.

Rather, “[a]n issue lacks arguable merit if, on the facts and law involved, no responsible

contention can be made that it offers a basis for reversal.”

citing State v. Pullen, 2d -4-

Dist. Montgomery No. 19232,

, ¶ 4.

{¶ 7} If we determine the appeal is frivolous, we may grant counsel’s request to

withdraw and then dismiss the appeal without violating any constitutional requirements,

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,

2d Dist. Champaign No. 2010 CA 13,

, citing

.

However, “[i]f we find that any issue presented or which an independent analysis reveals

is not wholly frivolous, we must appoint different appellate counsel to represent the

defendant.” Marbury at ¶ 7, citing Pullen at ¶ 2.

{¶ 8} As a potential assignment of error, Peyton’s appellate counsel proposes that

the trial court erred by failing to advise Peyton at the plea hearing of the nature of the

charge against him as required by Crim.R. 11(C)(2)(a). Specifically, counsel claims that

the trial court failed to state any facts on the record concerning the aggravated assault

charge. Counsel further claims that the bill of information served on Peyton contained

no facts apprising him of the nature of the charge. As a result, counsel suggests that

Peyton’s no contest plea may not have been knowingly, intelligently and voluntarily

entered.

{¶ 9} Crim.R. 11(C)(2)(a) provides that in felony cases, a court shall not accept a

plea of guilty or no contest without first addressing the defendant personally and

determining that he is making the plea voluntarily, with an understanding of the nature of

the charge and of the maximum penalty involved, and if applicable, that he is not eligible

for probation. It is well established that the trial court need only substantially comply with

these requirements. State v. Cole, 2d Dist. Montgomery No. 26122,

, citing State v. Nero,

,

(1990). “Substantial -5-

compliance means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving.” (Citations omitted.)

Nero, at 108.

{¶ 10} This court has stated the following with regard to the requirement that the

defendant understand the nature of the charge against him:

“In order for a trial court to determine that a defendant is making a

plea with an understanding of the nature of the charge to which he is

entering a plea, it is not always necessary that the trial court advise the

defendant of the elements of the crime, or to specifically ask the defendant

if he understands the charge, so long as the totality of the circumstances

are such that the trial court is warranted in making a determination that the

defendant understands the charge. In other words, under some

circumstances, the trial court may be justified in concluding that a defendant

has drawn an understanding from sources other than the lips of the trial

court.”

State v. Ferrell, 2d Dist. Clark No. 97 CA 114,

, *3 (Oct. 23, 1998),

quoting State v. Rainey,

,

(10th Dist. 1982).

Accord State v. Reeves, 2d Dist. Greene No. 2002-CA-9,

, ¶ 19.

{¶ 11} “For purposes of finding substantial compliance with Crim.R. 11, then, a

reviewing court need only determine whether the trial court, defense counsel, or someone

else provided the defendant with information regarding the nature of the charge against

him.” Reeves at ¶ 24, citing State v. Blair,

,

(2d Dist. 1998), citing State v. Carter,

,

(1979). In -6-

other words, “ ‘[t]he record must demonstrate that [the] defendant has acquired an

understanding of the nature of the charges against him, from whatever source, be it from

the trial court itself, the prosecutor, or some other source, such that the trial court can

determine that [the] defendant understands the charges to which he was pleading guilty

or no contest.’ ”

quoting

.

{¶ 12} In Reeves, we held that there was substantial compliance with Crim.R.

11(C)(2)(a) because the totality of the circumstances established that the defendant

“acquired from his attorney information regarding the nature of the charge against him.”

Id. at ¶ 24-25. When reviewing the totality of the circumstances in Reeves we

considered: (1) the indictment, which contained the elements of the offense; (2) the no-

contest petition, which stated: “My lawyer has counseled with me and advised me as to

the nature of the charge(s)”; (3) the certificate of counsel, which stated: “I have read and

fully explained to the Defendant the allegations contained in the indictment in this case”;

and (4) the plea colloquy between the trial court and the defendant. Id. at ¶ 20-23.

{¶ 13} Furthermore, in Ferrell, we held that the totality of the circumstances

established the defendant understood the nature of the felonious assault charge against

him despite the trial court failing to explain the elements of the offense. Ferrell, 2d Dist.

Clark No. 97 CA 114,

at *3. In so holding, we considered the fact that

the indictment specified the elements of the offense and that the defendant signed a plea

agreement which stated: “I understand the nature of these charges.”

Moreover,

during the plea colloquy, the trial court asked the defendant: “Do you understand the

nature of the felonious assault charge and specifically what it is that the State is saying

that you’ve done, that resulted in the felonious assault charge?” To which the defendant -7-

responded: “Yes, I do.”

{¶ 14} Similar to Reeves and Ferrell, in this case, the record indicates that Peyton

was served with a bill of information that provided the date of the aggravated assault in

question, the elements of the offense, and the statutory section he purportedly violated.

In addition, the plea form signed by Peyton states: “I understand the nature of the

charge(s), effect of my plea(s), and that upon acceptance of my plea(s) the Court may

proceed with judgment and sentence.” Rule 11 Notification and Waiver (Sept. 28, 2016),

Greene County Common Pleas Court Case No. 2016-CR-439, Docket No. 20.

{¶ 15} Most importantly, the trial court’s plea colloquy, which was conducted with

Peyton and two other defendants who were facing separate, unrelated charges, included

the following discussion about the nature of their charges.

THE COURT: Now, have you and your Counsel together discussed

the nature of the charges you’re facing in your

respective cases?”

***

DEFENDANT BRYAN PEYTON: Yes, sir.

THE COURT: And do you understand what all these offenses accuse

you of doing?

***

DEFENDANT BRYAN PEYTON: Yes, sir.

THE COURT: Okay. Are you also aware of the facts that are the

basis of these charges that the State has provided to

your counsel through the discovery process? Are you -8-

aware of those facts?

***

DEFENDANT BRYAN PEYTON: Yes, sir.

Plea Hearing Trans. (Sept. 28, 2016), p. 6-7.

{¶ 16} Based on the bill of information, plea form, and plea colloquy, we find that

the totality of the circumstances indicate that Peyton’s trial counsel discussed the nature

of the aggravated assault charge with him and that Peyton understood the nature of the

charge at the time he entered his no contest plea. Accordingly, the potential assignment

of error raised by Peyton’s appellate counsel lacks merit.

{¶ 17} In addition to considering the potential assignment of error raised by

appellate counsel, we have performed our duty under Anders to conduct an independent

review of the record. Having conducted our independent review, we find no issues with

arguable merit for Peyton to advance on appeal. Accordingly, we conclude that Peyton’s

appeal is wholly frivolous and affirm the judgment of the trial court.

.............

HALL, P.J. and FROELICH, J., concur.

Copies mailed to:

Nathaniel R. Luken Gregory K. Lind Bryan K. Peyton Hon. Stephen Wolaver