State v. Glus , 2014 Ohio 245 ( 2014 )

[Cite as State v. Glus, 2014-Ohio-245.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-G-3087
- vs - :
JON GLUS, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 11 C
000155.
Judgment: Affirmed in part, reversed in part, and remanded.
James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).
Sean C. Buchanan, Buchanan Legal, P.O. Box 1443, Kent, OH 44240 (For
Defendant-Appellant).
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 R.C.
2907.02(A)(1)(b), felonies of the first degree; four counts of gross sexual imposition, in
violation of R.C. 2907.05, felonies of the third degree; and one count of pandering
obscenity involving a minor, in violation of R.C. 2907.321, a felony of the second
degree. Appellant entered a plea of not guilty to all charges. Appellant later changed
his plea and entered a plea of guilty to the two counts of rape and one count of
pandering obscenity involving a minor. Pursuant to the agreement, the parties jointly
recommended appellant serve two consecutive 10-year terms on the rape counts and
five years on the pandering count, to be served concurrently with the rape terms. After
a thorough plea hearing, the trial court accepted appellant’s change of plea. The trial
court further accepted the parties’ joint recommendation on sentence. By virtue of his
convictions, appellant was labeled a Tier III sex offender.
{¶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 original 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
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said entry. Appellant, however, elected not to file a pro se brief.
{¶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 to 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 entire 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 sentence. 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 before this
court for review in this appeal. We characterize the first as follows:
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{¶8} The trial court erred in accepting appellant's guilty plea, which was not
entered knowingly, intelligently, and voluntarily.
{¶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} Crim.R. 11(C)(2) states that the court shall not accept a guilty plea without
first addressing the defendant personally and: (a) determining that he is making the
plea voluntarily, with an understanding of the nature of the charges and of the
maximum penalty involved; (b) informing the defendant of and determining that he
understands the effect of the guilty plea, i.e., that upon acceptance of the plea, the
court may proceed with judgment and sentence; (c) informing the defendant and
determining that he understands that by the plea, he is waiving the constitutional rights
to a jury trial, to confront witnesses against him, to have compulsory process for
obtaining witnesses, and to require the state to prove his guilt beyond a reasonable
doubt at a trial at which he cannot be compelled to testify against himself.
{¶11} A review of the change-of-plea hearing demonstrates the trial court
addressed appellant personally. The transcript shows appellant understood 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
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of each individual, constitutional right he was waiving by entering a plea and appellant
stated he understood his plea operated as a waiver of these rights.
{¶12} The court specifically and literally advised appellant of each constitutional
and non-constitutional right. Moreover, the court expressly asked appellant 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 Crim.R. 11(C). As a result, appellant’s plea was knowingly, intelligently, and
voluntarily entered.
{¶13} Appellant’s first assigned error 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 court’s sentencing judgment was
issued, R.C. 2947.23 provided, in pertinent part:
{¶17} “(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 the time the judge or magistrate imposes sentence, the
judge or magistrate shall notify the defendant of both of the following:
{¶18} “(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
court may order the defendant to perform community service in an amount of not more
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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.
{¶19} “(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 the notification requirement of the foregoing version
of R.C. 2947.23(A)(1), this court has concluded that the lack of oral notification during
the sentencing hearing does not constitute plain error when the sentencing judgment
provided notice that the defendant could be subject to community service if court costs
were not paid timely. State v. Fomby, 11th Dist. Lake No. 2012-L-073, 2013-Ohio-
2821, ¶64-67. Moreover, we have held that the lack of oral notification does not always
require a remand for the purpose of conducting a new sentencing hearing; if the state
agrees on appeal, the appellate court can afford the defendant a complete remedy by
modifying the sentencing judgment to expressly provide that he can never be subject to
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community service if he is delinquent in paying court costs. State v. Dye, 11th Dist.
Portage No. 2011-P-0092, 2013-Ohio-4285, ¶16-18.
{¶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 R.C. 2947.23(A)(1), the lack of an objection
by appellant’s trial counsel during the sentencing hearing does not result in a waiver of
the point; i.e., the trial court committed plain error. Furthermore, although the state
conceded in its appellate brief that the trial court did not comply with the notification
requirement in imposing court costs, it did not agree to a modification of the sentencing
judgment under which the possibility of community service would be eliminated in this
instance. Thus, pursuant to Moore, supra, this case must be remanded so that the trial
court can conduct a new limited hearing for the purpose of providing the required oral
notification under R.C. 2947.23(A)(1). Appellant’s second assignment has merit.
{¶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.
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{¶24} I concur in the judgment and the substantive analysis of the majority’s
opinion as it relates to the assignments of error raised by Glus. I write separately,
however, to address the flaws in the procedure followed in this appeal.
{¶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 behalf 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
court’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 action, 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
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proper, without any further briefing or appointment of new counsel); State v. Ross, 4th
Dist. Lawrence No. 10CA31, 2011-Ohio-1136, ¶ 13 (finding in an Anders case that
judicial economy favored immediate remand to the trial court because of clear error in
the imposition of post-release control).
{¶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 counsel 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.
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