State v. Kirby

[Cite as State v. Kirby, 2013-Ohio-5518.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. CT2013-0035
LEVI G. KIRBY :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2013-0100

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 16, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT SMITH DAVID A. SAMS
27 North Fifth Street Box 40
Box 189 West Jefferson, OH 43162
Zanesville, OH 43702
[Cite as State v. Kirby, 2013-Ohio-5518.]

Gwin, P.J.

{¶1} Defendant-appellant Levi G. Kirby [“Kirby”] appeals from his convictions

and sentences after a negotiated guilty plea to one count of Having Unlawful Sexual

Relations with a Minor, a felony of the fourth degree in violation of R.C. 2907.04.

Facts and Procedural History

{¶2} On May 1, 2013, Kirby appeared before the Muskingum County Court of

Common Pleas with court-appointed counsel and entered a plea of "guilty" to a Bill of

Information, which charged him with one (1) count of Unlawful Sexual Conduct with a

Minor, in violation of R.C. 2907.04(A), a felony of the fourth degree. Pursuant to a

written plea agreement, the state and Kirby agreed that the state would make no

recommendation in regards to sentencing.

{¶3} On June 10, 2013, Kirby returned to court for sentencing. At that time, the

Court found Kirby to be a Tier II offender and advised him of his reporting

responsibilities. The Court then ordered Kirby serve a prison term of one year. The

Court then informed the Kirby that he was subject to a mandatory period of post release

control for five (5) years upon his release from prison.

Assignments of Error

{¶4} Kirby raises three assignments of error,

{¶5} “I. THE BILL OF INFORMATION WAS STRUCTURALLY INSUFFICIENT

UNDER OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS AS IT

FAILED TO CONTAIN A NECESSARY ALLEGATION THAT THE OFFENSE IN

QUESTION WAS A SEXUALLY ORIENTED OFFENSE FOR PURPOSES OF OHIO

REVISED CODE CHAPTER 2950.
Muskingum County, Case No. CT2013-0035 3

{¶6} “II. THE DEFENDANT-APPELLANT'S CONVICTION AND SENTENCE

FOR HAVING UNLAWFUL SEXUAL RELATIONS WITH A MINOR AND HIS

RESULTING CLASSIFICATION AS A TIER II SEX OFFENDER ARE VOID AS THE

INFORMATION FAILED TO ALLEGE THAT APPELLANT WAS FOUR OR MORE

YEARS OLDER THAN THE MINOR VICTIM AS REQUIRED BY OHIO LAW AND THE

STATE AND FEDERAL CONSTITUTIONS.

{¶7} “III. THE DEFENDANT-APPELLANT'S PLEA WAS UNKNOWING,

UNINTELLIGENT AND INVOLUNTARY CONTRARY TO OHIO LAW AND THE STATE

AND FEDERAL CONSTITUTIONS.”

I, & II

{¶8} Kirby’s first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

{¶9} Kirby argues in his first two assignments of error that his bill of information

was void. Subsumed within this generalized objection are two challenges 1). The bill of

information failed to give notice that the offense in question was a sexually oriented

offenses and 2). The bill of information did not specify Kirby was four or more years

older than the minor victim.

1. Notice that the offense in question was a sexually oriented offense.

{¶10} In State v. Horner, the Ohio Supreme Court held in the syllabi,

(1) an indictment that charges an offense by tracking the language

of the criminal statute is not defective for failure to identify a culpable

mental state when the statute itself fails to specify a mental state,

overruling State v. Colon, 118 Ohio St.3d 26, 2008–Ohio–1624, 885
Muskingum County, Case No. CT2013-0035 4

N.E.2d 917, and State v. Colon, 119 Ohio St.3d 204, 2008–Ohio–3749,

893 N.E.2d 169;

(2) by failing to timely object to a defect in an indictment, a

defendant waives all but plain error on appeal, overruling State v. Colon,

118 Ohio St.3d 26, 2008–Ohio–1624, 885 N.E.2d 917[.]

126 Ohio St.3d 466, 2010–Ohio–3830, 935 N.E.2d 26, paragraph one and two of the

syllabus.

{¶11} Kirby did not object to the Bill of Information and therefore failed to

preserve his claim that the Bill of Information against him was constitutionally defective.

See, State v. Ellis, Fifth Dist. No. 2007–CA–46, 2008–Ohio–7002, ¶26. Therefore, this

Court may analyze the error in this case pursuant to the Crim.R. 52(B) plain error

analysis.

{¶12} Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State

v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. In

order to find plain error under Crim.R. 52(B), it must be determined, but for the error, the

outcome of the trial clearly would have been otherwise. Id. at paragraph two of the

syllabus. Thus, the defendant bears the burden of demonstrating that a plain error

affected his substantial rights and, in addition that the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings. United States v. Olano,

507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); State v. Perry, 101 Ohio
Muskingum County, Case No. CT2013-0035 5

St.3d 118, 2004-Ohio-297, 802 N.E.2d 643. Even if the defendant satisfies this burden,

an appellate court has discretion to disregard the error. State v. Barnes, 94 Ohio St.3d

21, 27, 759 N.E.2d 1240 (2002); State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus; Perry, supra, at 118, 802 N.E.2d at 646.

Furthermore, a defendant cannot take advantage of an error that he invited through

the plea negotiations. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934

N.E.2d 920, ¶7.

{¶13} In the case at bar, Kirby’s trial counsel informed the court prior to the

acceptance of Kirby’s plea,

Mr. Kirby is prepared to proceed, Your Honor. I addressed any

questions and issues that he had by answering all of his questions. We

have reviewed and discussed the facts of the case. He's decided that it's

in his best interest to proceed with this bill of information. We have

reviewed the plea form together. I went over that with him. I asked him if

he's had any questions. I answered any of those questions that he had.

I'm satisfied that he understands the possible penalties and the

ramifications for the sex offense and having to register.

T. May 1, 2013 at 4(Emphasis added). The plea agreement signed by Kirby contains

the following,

Registration: In person verification. If you have entered a plea of

guilty to a sexually oriented offense, as defined in Chapter 2950.01 of the

Ohio Revised Code, you have been classified as one of the following: a

Tier I, a Tier II, or a Tier III offender. Inasmuch as you have been
Muskingum County, Case No. CT2013-0035 6

classified as a sex offender, you have a duty to register with law

enforcement as follows:

TIER II: registration every 180 days for a period of twenty-five (25)

years.

If you are in custody at the time of your conviction, a law

enforcement officer will escort you to the Sheriffs Department for initial

registration.

If you are not in custody at the time of conviction, you must register

with the Muskingum County Sheriff's Department within three (03) days of

entering your plea of guilty.

You are hereby notified that your failure to comply with the terms

and conditions of Registration, could result in new felony charges.

I understand the nature of these charges and the possible defenses

I might have. I am satisfied with my attorney’s advice and competence. I

am not under the influence of drugs or alcohol. No threats have been

made to me. No promises have been made except as part of this plea

agreement stated entirely as follows:

The Defendant hereby acknowledges that through plea

negotiations by and between the parties, he agrees to accept the

Prosecutor's recommendation for sentencing, which is stated as follows:

In exchange for the Defendant's plea to the counts herein, the

State agrees to make no recommendation and leave sentencing to

the discretion of this Court.
Muskingum County, Case No. CT2013-0035 7

I further understand that the Prosecutor's recommendation does not

have to be followed by the Court.

***

Waiver and Plea of Guilty to Prosecutors Bill of Information, filed May 1, 2013 at 2-

3(emphasis sic.).

{¶14} On June 10, 2013, prior to the announcement of sentence the following

exchange occurred,

[Prosecutor]: I would also note that it was agreed at the plea that

this is a Tier II registration offense. Also, pursuant to the State's

calculations, the defendant should be given credit for 41 days of

incarceration.

***

[Defense counsel]: The statements made by the prosecutor are

correct. We are here for sentencing. I assume the Court wants to address

the defendant with respect to registration. I would like to make a brief

argument after that, but we did review the registration requirements in

detail. I had allowed him to review it on his own and also reviewed it with

him and asked him if he had any questions. I believe he understands it.

He has signed and executed that registration form, Your Honor. Thank

you.

T. June 10, 2013 at 3-4(Emphasis added). The trial court then informed Kirby as

follows,
Muskingum County, Case No. CT2013-0035 8

Thank you. Mr. Kirby, I have the form entitled explanation of duties

to register as a sex offender or child victim offender, and it purportedly has

your signature on it. Is that your signature?

THE DEFENDANT: Yes, sir.

THE COURT: Did you and your attorney go over this form?

THE DEFENDANT: Yes, sir.

THE COURT: This form indicates that you will be classified as a

Tier II sex offender which requires that you report to the sheriff's office in

the county in which you reside every 180 days for a period of 25 years. Is

that your understanding?

THE DEFENDANT: Yes, sir.

THE COURT: You also have other rules and regulations required of

you in regards to being a sex offender. You also understand that, should

you fail to follow those rules and regulations, additional or new felonies

could be filed against you?

THE DEFENDANT: Yes, sir.

THE COURT: The Court is satisfied that you have reviewed this

form. I'll execute the same, and a copy of it will be provided to you later

today. Mr. Whitacre, you may address the sentencing.

***

T. June 10, 2013 at 4-5.
Muskingum County, Case No. CT2013-0035 9

{¶15} Kirby did not indicate his disapproval or confusion to the trial court upon

being informed by the trial court that he would be found to be a Tier II registrant with the

attendant duties and responsibilities.

{¶16} In the case at bar, if Kirby did not understand that he faced a registration

and reporting requirement before the plea, he certainly knew it immediately afterward

and could have objected to the plea at that time if he had been surprised by it or prior to

sentencing which occurred at a later date.

{¶17} Given the record, we further find that Kirby has failed to demonstrate that

he was prejudiced by any failure to include within the bill of information that offense in

question were sexually oriented offense. Based upon the record of the case before us,

we find any error in the failure to include within the bill of information that the offense in

question was a sexually oriented offense was harmless beyond a reasonable doubt.

State v. Moore, 5th Dist. Muskingum No. CT2012-0047, 2013-Ohio-2185, ¶17.

2. The bill of information did not specify Kirby was four or more years older than

the minor,

{¶18} Crim.R. 7(B) provides that the indictment shall contain a statement that

may be in the words of the applicable section of the statute, provided the words of the

statute charge an offense, or in words sufficient to give the defendant notice of all the

elements of the offense with which the defendant is charged.

{¶19} In the case at bar, Kirby plead guilty. “[A] defendant who has entered a

guilty plea without asserting actual innocence is presumed to understand that he has

completely admitted his guilt.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814

N.E.2d 51–Ohio–4415, 814 N.E.2d 51, syllabus. In the case at bar, the bill of
Muskingum County, Case No. CT2013-0035 10

information charged the offense in the words of the statute. The purpose of a bill of

information is to give the accused adequate notice of the crime charged. State v.

Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162–Ohio–4707, ¶ 7. An

indictment or bill of information is sufficient if it contains the elements of the offense

charged, fairly informs the defendant of the charge, and enables the defendant to plead

an acquittal or conviction in bar of future prosecutions for the same offense. Id. at ¶ 9.

{¶20} The Supreme Court of Ohio has interpreted R.C. 2945.75 to provide the

requirements for what must be included in a jury verdict form. State v. Pelfrey, 112 Ohio

St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 14. The Pelfrey Court held that "pursuant

to the clear language of R.C. 2945.75, a verdict form signed by a jury must include

either the degree of the offense of which the defendant is convicted or a statement that

an aggravating element has been found to justify convicting a defendant of a greater

degree of a criminal offense." Id. See also, State v. Nethers, 5th Dist. No. 07 CA 78,

2008-Ohio-2679, ¶ 51.

{¶21} As applied to the present case, the bill of information cites to R.C.

2907.04(A) and tracks the statutory language of the charge. The plea agreement clearly

states that the offense is a felony of the fourth degree.

{¶22} Further, in the case at bar, the trial court accepted Kirby's plea. There was

no jury impaneled and therefore, no argument was made alleging this to be a strict

liability offense nor was a jury improperly instructed. Competent counsel represented

Kirby and Kirby, with the assistance of counsel, entered into a negotiated plea. Kirby

was informed that his plea was to a “felony of the fourth degree” before entering his

plea. T. May 1, 2013 at 3; 5; 10. Kirby did not indicate his disapproval or confusion to
Muskingum County, Case No. CT2013-0035 11

the trial court upon being informed by the trial court that the offense was a felony of the

fourth degree.

{¶23} Because the plea agreement and the colloquy with the court clearly

informed Kirby that the charge was a felony of the fourth degree, Kirby cannot

demonstrate prejudice.

{¶24} Kirby’s first and second assignments of error are overruled.

III.

{¶25} In his third assignment of error, Kirby contends that his guilty plea is void

because he was not apprised of his right to a unanimous jury,

{¶26} Initially, there is no explicit requirement in Crim.R. 11(C)(2)(a) that a

defendant be informed of his right to a unanimous verdict. State v. Simpson, 10th Dist.

No. 07AP–929, 2008–Ohio–2460, ¶11. Further, several courts, including the Ohio

Supreme Court, have held there is no requirement that a trial court inform a defendant

of his right to a unanimous verdict. See, e.g., State v. Ketterer, 111 Ohio St.3d 70,

2006-Ohio-5283, 855 N.E.2d 48–Ohio–5283, ¶68 (the trial court was not required to

specifically advise defendant on the need for juror unanimity); State v. Fitzpatrick, 102

Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927–Ohio–3167, 44–46 (accused need

not be told that jury unanimity is necessary to convict and to impose sentence); State v.

Barnett, 1st Dist. No. C–060950, 2007–Ohio–4599, ¶6; State v. Smith, 5th Dist. No.

CT2007–0073, 2008–Ohio–3306, ¶ 27.

{¶27} It is also well established that a defendant need not have a complete or

technical understanding of the jury trial right in order to knowingly and intelligently waive

it. State v. Bays, 87 Ohio St.3d 15, 20, 716 N.E.2d 1126 (1999). In State v. Jells, the
Muskingum County, Case No. CT2013-0035 12

Ohio Supreme Court held:

There is no requirement in Ohio for the trial court to interrogate a

defendant in order to determine whether he or she is fully apprised of the

right to a jury trial. The Criminal Rules and the Revised Code are satisfied

by a written waiver, signed by the defendant, filed with the court, and

made in open court, after arraignment and opportunity to consult with

counsel.

53 Ohio St.3d 22, 25–26, 559 N.E.2d 464(1990).

{¶28} Here, Kirby indicated he was fully apprised of his rights, and he executed

a written plea of guilty. Nothing in the record rebuts the presumption that this written

guilty plea was knowingly, intelligently, and voluntarily made.

{¶29} For all the above reasons, we find the trial court did not err when it failed

to inform Kirby of his right to a unanimous jury verdict, and, based upon the totality of

the circumstances, we conclude Kirby entered his plea knowingly, intelligently and

voluntarily. The trial court clearly complied with the mandates of Crim.R. 11(C).

{¶30} Kirby's third assignment of error is overruled.
Muskingum County, Case No. CT2013-0035 13

{¶31} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio is affirmed.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. JOHN W. WISE

WSG:clw 1204
[Cite as State v. Kirby, 2013-Ohio-5518.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
LEVI G. KIRBY :
:
:
Defendant-Appellant : CASE NO. CT2013-0035

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Muskingum County, Ohio is affirmed. Cost to

appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. JOHN W. WISE