State v. Salyer , 2011 Ohio 5559 ( 2011 )

[Cite as State v. Salyer, 2011-Ohio-5559.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA12
vs. : T.C. CASE NO. 09CR250
MICHAEL LEE SALYER : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 28th day of October, 2011.
. . . . . . . . .
Nick A. Selvaggio, Pros. Attorney, 200 N. Main Street, Office No.
102, Urbana, OH 43078, Atty. Reg. No.0055607
Attorney for Plaintiff-Appellee
Gary C. Schaengold, Atty. Reg. No.0007144, 707 Shroyer Road, Suite
B, Dayton, OH 45419
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Michael Salyer, was indicted by the grand
jury on one count of rape involving a child under thirteen years
of age, R.C. 2907.02(A)(1)(b), and one count of gross sexual
imposition involving a child under thirteen years of age, with
a previous conviction for a similar sexual offense involving a
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minor child, R.C. 2907.05(A)(4), (C)(2)(b). Defendant entered
a guilty plea to an amended charge of attempted rape, R.C.
2923.02(A) and 2907.02(A)(1)(b), as a felony of the first degree
pursuant to a negotiated plea agreement. In exchange, the State
dismissed the gross sexual imposition charge. The trial court
sentenced Defendant to the maximum allowable ten year prison term,
and classified Defendant as a Tier III sexual offender.
{¶ 2} Defendant timely appealed to this court from his
conviction and sentence. Defendant’s appellate counsel filed an
Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 19 L.Ed.2d 493, stating that he could find no meritorious
issues for appellate review. We notified Defendant of his
appellate counsel’s representations and afforded him ample time
to file a pro se brief. None has been received. This case is
now before us for our independent review of the record. Penson
v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 3} Defendant’s appellate counsel has identified two
possible issues for appeal. Appellant counsel first raises an
issue concerning the trial court’s compliance with Crim.R. 11(C)(2)
in accepting Defendant’s guilty plea.
{¶ 4} Crim.R. 11(C)(2) governs the trial court’s acceptance
of guilty or no contest pleas in felony cases and provides:
{¶ 5} “(2) In felony cases the court may refuse to accept a
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plea of guilty or a plea of no contest, and shall not accept a
plea of guilty or no contest without first addressing the defendant
personally and doing all of the following:
{¶ 6} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
{¶ 7} “(b) Informing the defendant of and determining that
the defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
{¶ 8} “(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving
the rights to jury trial, to confront witnesses against him or
her, to have compulsory process for obtaining witnesses in the
defendant's favor, and to require the state to prove the defendant's
guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.”
{¶ 9} In order to be constitutionally valid and comport with
due process, a guilty plea must be entered knowingly, intelligently
and voluntarily. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274. Compliance with Crim.R. 11(C)(2) in
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accepting guilty or no contest pleas portrays those qualities.
{¶ 10} In State v. McGrady, Greene App. No. 2009CA60,
2010-Ohio-3243, at ¶11-13, this court stated:
{¶ 11} “In order for a plea to be given knowingly and
voluntarily, the trial court must follow the mandates of Crim.
R. 11(C). If a defendant's guilty plea is not voluntary and knowing,
it has been obtained in violation of due process and is void. Boykin
v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d
274.
{¶ 12} “A defendant who challenges his guilty plea on the basis
that it was not knowingly, intelligently, and voluntarily made
must show a prejudicial effect. State v. Stewart (1977), 51 Ohio
St.2d 86, 93; Crim. R. 52(A). The test is whether the plea would
have been otherwise made. Id. at 108.
{¶ 13} “A trial court must strictly comply with Crim. R. 11
as it pertains to the waiver of federal constitutional rights.
These include the right to trial by jury, the right of
confrontation, and the privilege against self-incrimination. Id.
at 243-44. However, substantial compliance with Crim. R. 11(C)
is sufficient when waiving non-constitutional rights. State v.
Nero (1990), 56 Ohio St.3d 106, 108. The non-constitutional rights
that a defendant must be informed of are the nature of the charges
with an understanding of the law in relation to the facts, the
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maximum penalty, and that after entering a guilty plea or a no
contest plea, the court may proceed to judgment and sentence. Crim.
R. 11(C)(2)(a)(b); State v. Philpott, Cuyahoga App. No. 74392,
citing McCarthy v. U.S. (1969), 394 U.S. 459, 466, 89 S.Ct. 1166,
22 L.Ed.2d 418. 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. Nero, 56 Ohio St.3d at 108.”
{¶ 14} Our review of the plea hearing demonstrates that the
trial court scrupulously complied with all of the requirements
in Crim.R. 11(C)(2), and advised Defendant about all of the
constitutional rights he would give up by pleading guilty, as well
as all of the other non-constitutional matters. This record amply
demonstrates that Defendant’s guilty plea was entered knowingly,
intelligently and voluntarily. This assignment of error lacks
arguable merit.
{¶ 15} Appellate counsel also raises an issue concerning
Defendant’s maximum sentence.
{¶ 16} In State v. Jeffrey Barker, Montgomery App. No. 22779,
2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 17} “The trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is
not required to make any findings or give its reasons for imposing
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maximum, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph 7 of the
syllabus. Nevertheless, in exercising its discretion the trial
court must consider the statutory policies that apply to every
felony offense, including those set out in R.C. 2929.11 and 2929.12.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, at ¶37.
{¶ 18} “When reviewing felony sentences, an appellate court
must first determine whether the sentencing court complied with
all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the
sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912. If the sentence is not clearly and convincingly
contrary to law, the trial court’s decision in imposing the term
of imprisonment must be reviewed under an abuse of discretion
standard. Id.”
{¶ 19} This record demonstrates that in imposing its sentence
the trial court considered the purposes and principles of felony
sentencing, R.C. 2929.11, and the seriousness and recidivism
factors, R.C. 2929.12. The court also considered the presentence
investigation report and the oral statements of counsel and
Defendant at sentencing. The ten year sentence the court imposed
on the attempted rape charge, while the maximum sentence, is
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nevertheless within the authorized range of available punishments
for a felony of the first degree, which is three to ten years.
R.C. 2929.14(A)(1). The court also informed Defendant about
mandatory post release control requirements and the consequences
for violating post release control. Defendant’s sentence is not
clearly and convincingly contrary to law. Kalish.
{¶ 20} Furthermore, the court’s ten year sentence is not an
abuse of discretion because this record supports the trial court’s
ten year sentence. Defendant attempted to rape his twelve year
old granddaughter. This offense occurred while Defendant was on
post-release control after serving four years in prison for a
similar sexual offense involving other children. Additionally,
Defendant has a history of criminal convictions, many of which
involve assaults and violent behavior. Previous sanctions
including community control and sex offender treatment programs
have been unsuccessful. Finally, Defendant shows no genuine
remorse and, from his statements reported in the presentence
investigation report, denies any culpability. We see no abuse
of discretion on the part of the trial court in imposing the maximum
ten year sentence. This assignment of error lacks arguable merit.
{¶ 21} In addition to reviewing the possible issues for appeal
raised by Defendant’s appellate counsel, we have conducted an
independent review of the trial court’s proceedings and have found
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no error having arguable merit. Accordingly, Defendant’s appeal
is without merit and the judgment of the trial court will be
affirmed.
FROELICH, J. And HALL, J., concur.
Copies mailed to:
Nick A. Selvaggio, Esq.
Gary C. Schaengold, Esq.
Michael L. Salyer
Hon. Roger B. Wilson