[Cite as State v. Myers, 2015-Ohio-3927.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 14 CA 112
ERIC MYERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 14 CR 277
JUDGMENT: Affirmed in Part; Reversed in Part
and Remanded
DATE OF JUDGMENT ENTRY: September 23, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER REAMER ANDREW T. SANDERSON
ASSISTANT PROSECUTOR BURKETT & SANDERSON
20 South Second Street, Fourth Floor 73 North Sixth Street
Newark, Ohio 43055 Newark, Ohio 43055
Licking County, Case No. 14 CA 112 2
Wise, J.
{¶1}. Appellant Eric E. Myers appeals his conviction, in the Court of Common
Pleas, Licking County, for one count of rape and several counts of gross sexual
imposition. Appellee is the State of Ohio. The relevant procedural facts leading to this
appeal are as follows.
{¶2}. Following a bind-over from the Licking County Juvenile Court, Appellant
Myers was indicted by the Licking County Grand Jury on one count of rape (R.C.
2907.02(A)(1)(b)), a felony of the first degree, and five counts of gross sexual imposition
(R.C. 2907.05(A)(4)), all felonies of the third degree.
{¶3}. Counts I, II, and III involved appellant's acts in 2008 with a nine- or ten-
year-old female victim, including digital insertion into the victim's vagina. Count IV
involved acts at a youth camp in 2009 with a male victim under the age of thirteen.
Counts V and VI involved acts in 2010 and/or 2011 with a female victim under the age
of thirteen.
{¶4}. Appellant originally entered pleas of not guilty to the charges in the
indictment. However, on November 21, 2014, appellant appeared with counsel and
entered a plea of no contest to an amended rape charge (Count I), making the offense a
felony of the first degree with no life specification, R.C. 2907.02(A)(2). Appellant further
entered pleas of no contest to the remaining five counts (all GSI).
{¶5}. Appellant was thereupon sentenced to a total term of fourteen years in
prison.
{¶6}. On December 22, 2014, appellant filed a notice of appeal. He herein
raises the following two Assignments of Error:
Licking County, Case No. 14 CA 112 3
{¶7}. “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN
ACCEPTING THE NO CONTEST PLEAS OF THE DEFENDANT-APPELLANT.
{¶8}. “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN
SENTENCING THE DEFENDANT-APPELLANT.”
I.
{¶9}. In his First Assignment of Error, appellant challenges the trial court's
acceptance of his pleas of no contest to the five counts of gross sexual imposition.
{¶10}. Ohio Criminal Rule 11(C) addresses pleas of guilty and no contest in
felony cases. It reads, in pertinent part:
{¶11}. “ * * *
{¶12}. “(2) In felony cases the court may refuse to accept a 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:
{¶13}. “(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.
{¶14}. “(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.
{¶15}. “(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
Licking County, Case No. 14 CA 112 4
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.
{¶16}. “ * * * ”
{¶17}. In regard to the specific constitutional rights referenced in Crim.R.
11(C)(2)(c), supra, the Ohio Supreme Court has held that strict compliance is required
on the part of the trial court. See State v. Veney, 120 Ohio St .3d 176, 897 N.E.2d 621,
2008–Ohio-5200, syllabus. However, appellant herein focuses on whether he was
properly informed of the nature of the penalties for gross sexual imposition, which we
find to be an issue pertaining to Crim.R. 11(C)(2)(a), rather than 11(C)(2)(c). Generally,
in accepting a guilty plea, a trial court must “substantially comply” with Crim.R. 11(C),
which we review based on the totality of the circumstances. See State v. Nero (1990),
56 Ohio St.3d 106, 108, 564 N.E.2d 474; State v. Carter (1979), 60 Ohio St.2d 34, 38,
396 N.E.2d 757. In other words, “[f]or nonconstitutional rights, scrupulous adherence to
Crim.R. 11(C) is not required; the trial court must substantially comply, provided no
prejudicial effect occurs before a guilty plea is accepted.” State v. Osley, Lucas App.No.
L–11–1236, 2013–Ohio–1267, 2013 WL 1289527, ¶ 17, citing State v. Stewart (1977),
51 Ohio St.2d 86, 364 N.E.2d 1163. Specifically, a trial court must only substantially
comply with Crim.R. 11(C) when notifying a defendant of the maximum penalty for the
charged offense, as that right to notification has been recognized as a non-constitutional
right. See State v. Gosnell, 2nd Dist. Montgomery No. 24213, 2011-Ohio-4288, ¶ 11.
{¶18}. In the case sub judice, appellant essentially asserts the trial court
misinformed him concerning the mandatory nature of his sentence, particularly in light of
Licking County, Case No. 14 CA 112 5
the Ohio Supreme Court's recent decision in State v. Bevly, 142 Ohio St.3d 41, 27
N.E.3d 516, 2015-Ohio-475. Bevly reviewed R.C. 2907.05(C)(2), which establishes that
a violation of R.C. 2907.05(A)(4) (gross sexual imposition) is a third-degree felony for
which there is a presumption that a prison term be imposed. Pursuant to R.C.
2907.05(C)(2)(a), a trial court is required to impose a mandatory prison term for GSI
when “[e]vidence other than the testimony of the victim was admitted in the case
corroborating the violation.” The General Assembly thus intended that greater
punishment is to be imposed on offenders based on the State's ability to produce
additional evidence to corroborate the crime. However, the Ohio Supreme Court
recently held that because there is no rational basis for the aforesaid provision in R.C.
2907.05(C)(2)(a), the statute violates the due process protections of the Fifth and
Fourteenth Amendments to the United States Constitution. See State v. Bevly, 142 Ohio
St.3d 41, 27 N.E.3d 516, 2015-Ohio-475, paragraph one of the syllabus.
{¶19}. A new interpretation of a rule or statute by the Ohio Supreme Court is
generally applied to cases that are pending at the time of announcement, although it is
not applied to cases that have already completed the direct appeal process. See State
v. Loyer, 5th Dist. Stark No. 2009-CA-00312, 2010-Ohio-1181, ¶ 7, citing State v. Evans
(1972), 32 Ohio St.2d 185, 291 N.E.2d 466. In the case sub judice, there is no dispute
that the present appeal was pending in this Court on February 11, 2015, the date of the
Bevly decision.
{¶20}. At the plea hearing in this matter, the trial court was notified that the State
had available a DVD of appellant's interviews with law enforcement officials, which the
State tendered as corroborating evidence of appellant's crimes. See Tr. at 3-4. The
Licking County, Case No. 14 CA 112 6
court then asked defense counsel if appellant had any objection to the State offering the
"statements of corroboration," to which defense counsel answered in the negative. Tr. at
4. The following exchange between the court and appellant took place shortly
thereafter:
{¶21}. "Q. Each of the remaining charges is for Gross Sexual Imposition. Those
charges are all felonies of the third degree and carry maximum prison sentences of up
to five years each, and each of those counts also carries a minimum mandatory prison
term of one year. Do you understand that?
{¶22}. "A. Yes, sir."
{¶23}. Tr. at 10.
{¶24}. Appellant also undisputedly signed written plea forms, although appellant
maintains these forms "share the same defect as the verbal exchange with the
defendant." Appellant's Brief at 7. Appellant also maintains the trial court added to its
incorrect recitation of the GSI penalties by failing to inform him, per Bevly, that the facts
related to the corroboration of claims for purposes of R.C. 2907.05(C)(2)(a) must be
decided by a jury. See Bevly at ¶ 27.
{¶25}. Nonetheless, it is well-established that "an appellant who challenges his
plea on the basis that it was not knowingly and voluntarily made must show a prejudicial
effect." State v. Houston, 4th Dist. Scioto No. 12CA3472, 2014-Ohio-2827, ¶ 8
(additional citations omitted). Specifically, a defendant who enters a plea believing he
or she faces a mandatory sentence when such sentence cannot actually be imposed
generally will not meet the prejudice requirement to invalidate an otherwise knowing,
Licking County, Case No. 14 CA 112 7
voluntary, and intelligent plea. See State v. Younker, 2nd Dist. Montgomery No. 26414,
2015-Ohio-2066, ¶ 25 - ¶ 27.
{¶26}. Accordingly, upon review, even if the trial court failed to substantially
comply with the pertinent aspects of Crim.R. 11(C)(2)(a) in light of Bevly, under the
circumstances presented we find no prejudicial error warranting reversal and vacation of
appellant's no contest pleas.
{¶27}. Appellant's First Assignment of Error is therefore overruled.
II.
{¶28}. In his Second Assignment of Error, appellant contends the trial court
erroneously imposed mandatory sentences for gross sexual imposition. We agree in
part.
{¶29}. As we stated in our analysis of appellant's First Assignment of Error, the
Ohio Supreme Court recently held that because there is no rational basis for the
mandatory sentence differentiation found in R.C. 2907.05(C)(2)(a), the statute violates
the due process protections of the Fifth and Fourteenth Amendments to the United
States Constitution. See State v. Bevly, supra.
{¶30}. The State herein concedes that this matter should be remanded for
resentencing in light of Bevly. See, e.g., State v. Richardson, 12th Dist. Clermont Nos.
CA2014–03–023, CA2014–06–044, CA2014–06–045, 2015-Ohio-824, ¶ 105.
{¶31}. Therefore, appellant's Second Assignment of Error is sustained to the
extent that the matter will be remanded for a new sentencing hearing limited to applying
the holding of Bevly to the GSI verdicts.
Licking County, Case No. 14 CA 112 8
{¶32}. For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Licking County, Ohio, is hereby affirmed in part, reversed in part,
and remanded for further proceedings consistent herewith.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 0909
State v. Myers
Combined Opinion