State v. Bunch ( 2023 )

[Cite as State v. Bunch, 2023-Ohio-1602.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-12-124
: OPINION
- vs - 5/15/2023
:
JOSHUA RAY BUNCH, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2022-01-0142
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Joshua Ray Bunch, appeals his conviction in the Butler County
Court of Common Pleas after he pled guilty to one count of fourth-degree felony carrying a
concealed weapon. For the reasons outlined below, we affirm.
{¶ 2} On February 23, 2022, the Butler County Grand Jury returned an indictment
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charging Bunch with two counts of third-degree felony having weapons while under
disability. As stated in the bill of particulars, the charges arose after a firearm was located
in Bunch's bedroom during a "parole search and a search warrant" of Bunch's residence
that took place on January 16, 2022.
{¶ 3} On March 1, 2022, Bunch appeared at his arraignment hearing with counsel
and entered a not guilty plea to both charges. Several months later, on August 30, 2022,
Bunch entered into a plea agreement with the state and pled guilty to one count of fourth-
degree felony carrying a concealed weapon. The trial court accepted Bunch's guilty plea
upon finding the plea was knowingly, intelligently, and voluntarily entered.
{¶ 4} On November 22, 2022, the trial court held a sentencing hearing where it
sentenced Bunch to serve an 18-month prison term. Bunch now appeals his conviction,
raising the following single assignment of error for review.
{¶ 5} THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE BUNCH OF HIS
CRIM.R. 5 RIGHTS AT ARRAIGNMENT.
{¶ 6} Bunch initially argues the trial court erred by failing to advise him at his
arraignment hearing that he had a right to counsel, a right to remain silent, and a right to a
jury trial pursuant to Crim.R. 5(A)(2), (3), and (5). However, based on its plain language,
the procedure set forth in Crim.R. 5(A) does not apply to arraignments. Rather, as this court
has previously stated, Crim.R. 5(A) governs initial appearances and preliminary hearings.
Middletown v. McIntosh, 12th Dist. Butler No. CA2006-07-174, 2007-Ohio-3348, ¶ 4.
Therefore, because the procedure set forth in Crim.R. 5(A) does not apply to arraignments,
the trial court did not err by failing to advise Bunch at his arraignment hearing that he had
a right to counsel, a right to remain silent, and a right to a jury trial in accordance with
Crim.R. 5(A)(2), (3), and (5). Bunch's claim otherwise lacks merit.
{¶ 7} In so holding, we find it necessary to discuss our recent decision in State v.
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Thompson, 12th Dist. Butler No. CA2022-09-080, 2023-Ohio-559. In that case, just like in
the case at bar, appellant argued the trial court erred by failing to advise him of his rights
set forth within Crim.R. 5(A) at his arraignment. Id. at ¶ 17. However, rather than applying
the same analysis as set forth above, this court unfortunately overlooked the fact that
Crim.R. 5(A) does not apply to arraignments when holding appellant had waived any error
the trial court may have made by failing to advise appellant at his arraignment hearing of
his Crim.R. 5(A) rights. Id. Specifically, this court held that "because [appellant] appeared
at his arraignment represented by counsel, pled not guilty, and proceeded to trial without
objection, [appellant] necessarily waived the Crim.R. 5(A) requirements in this case." Id.
{¶ 8} This court is certainly not the only court that has overlooked the fact that
Crim.R. 5(A) applies to just initial appearances and preliminary hearings. See, e.g., State
v. McKenzie, 3d Dist. Crawford No. 3-22-33, 2023-Ohio-1178, ¶ 13 (finding appellant
waived any error the trial court may have made by failing to advise him of his rights pursuant
to Crim.R. 5 at his arraignment hearing by pleading guilty); and State v. Walker, 4th Dist.
Adams No. 19CA1102, 2021-Ohio-235, ¶ 31 ("While a full explanation of the constitutional
rights pursuant to Crim.R. 5[A] may well have occurred, the arraignment transcript does not
contain this discussion"). This is certainly understandable given that this court made the
mistake even after expressly stating which of those rules was to apply in which setting.1
Nevertheless, in hopes of reducing any confusion that may arise within this district in the
1. This court in Middletown v. McIntosh, 12th Dist. Butler No. CA2006-07-174, 2007-Ohio-3348, cited State v.
Bayer, 102 Ohio App.3d 172 (11th Dist.1995), which at fn.7 notes that both the appellant and the trial court in
that case incorrectly referred to appellant's initial appearance as "arraignment." The Bayer court then
continued by noting that, although the traffic rules refer to similar activity as an "arraignment," there is "no
such terminology" contained within the criminal rules "with respect to misdemeanor matters in the municipal
courts." Id. "Rather, it [arraignment] is the proceeding that is had after an indictment is rendered in the court
of common pleas. Therefore, both the court's and appellant's characterization of this endeavor as an
'arraignment' is erroneous." Id. However, even after citing to Bayer, and even after expressly stating that
Crim.R. 5 governs initial appearances and preliminary hearings whereas Crim.R. 10 governs arraignments,
this court in McIntosh made the exact same error the Bayer court cautioned against making by using the two
terms interchangeably. See McIntosh at ¶ 4-14.
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future, we hereby modify our holding in Thompson to the extent that this court mistakenly
stated that the procedure set forth in Crim.R. 5(A) was applicable to arraignments. We do
the same for the case upon which Thompson relied, Hamilton v. Brown, 1 Ohio App.3d 165(12th Dist.1981), and this court's more recent decision in McIntosh, 2007-Ohio-3348.
{¶ 9} In so doing, we now explicitly hold that, rather than the procedure set forth in
Crim.R. 5(A), it is instead the procedure set forth in Crim.R. 10(C) that applies to
arraignments. See State v. Eschrich, 6th Dist. Ottawa No. OT-06-045, 2008-Ohio-2984, ¶
21 ("Crim.R. 5 sets forth the procedure that courts follow at a defendant's initial appearance
and Crim.R. 10 sets forth the procedure that courts follow at arraignments"). This modified
holding should, in theory, alleviate the possibility of this court making the same mistake in
the future. What this modification does not do, however, is change the ultimate outcome in
Thompson. This is because, just like in this case, the trial court in Thompson did not err by
failing to advise appellant of his rights set forth within Crim.R. 5(A) at his arraignment
hearing given that Crim.R. 5(A) does not apply to arraignments. The same holds true for
this court's earlier decisions in Brown and McIntosh. Therefore, because it is Crim.R. 10(C)
rather than Crim.R. 5(A) that applies to arraignments, Bunch's first argument lacks merit
and is overruled.
{¶ 10} Bunch also argues the trial court erred by failing to inform him and determine
whether he understood that he had a right to counsel and the right to remain silent at his
arraignment hearing as required by Crim.R. 10(C). However, the plain language found
within Crim.R. 10(C) specifically states that those requirements apply only "[w]hen a
defendant not represented by counsel is brought before a court and called upon to plead *
* *." (Emphasis added.) See McIntosh at ¶ 5 (noting that Crim.R. 10[C] governs
arraignments and applies only where "a defendant does not have counsel"). Bunch does
not dispute that he was represented by counsel throughout these proceedings. This
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includes Bunch's arraignment hearing. Therefore, because the requirements set forth
within Crim.R. 10(C) only apply to a defendant not represented by counsel at his or her
arraignment, Bunch's second argument claiming the trial court erred by failing to comply
with Crim.R. 10(C) also lacks merit.2 Accordingly, because we find no merit to either of
Bunch's two arguments raised herein, Bunch's single assignment of error is overruled.
{¶ 11} Judgment affirmed.
M. POWELL and BYRNE, JJ., concur.
2. We note that, even if we were to find the requirements set forth within Crim.R 10(C) applied to the case at
bar, the result would be the same. This is because Bunch failed to allege any resulting prejudice from the trial
court's supposed failure to comply with the Crim.R. 10(C) requirements. See State v. Colquitt, 12th Dist.
Warren No. CA2022-05-028, 2022-Ohio-4448, ¶ 11 (noting that "[d]espite the mandatory language of [Crim.R.
10(C)], Ohio courts have held that a defendant must show some prejudice resulting from the arraignment in
order to warrant reversal").
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