[Cite as State v. Havens, 2011-Ohio-5019.]




           IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 10CA0027

vs.                                               :    T.C. CASE NO. 08CR0344

TIMOTHY HAVENS                                     :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                       . . . . . . . . .

                                             O P I N I O N

                Rendered on the 30th day of September, 2011.

                                       . . . . . . . . .

Nick A. Selvaggio, Pros. Attorney, Atty. Reg. No. 0055607, 200
North Main Street, Urbana, OH 43078
     Attorney for Plaintiff-Appellee

Kathryn L. Bowling, Atty. Reg. No. 0084442, 111 West First Street,
Suite 518, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Pursuant to a negotiated plea agreement, Defendant

Timothy Havens entered pleas of guilty on March 10, 2009, to one

count of assault, R.C. 2903.13(B), a misdemeanor of the first

degree, and one count of violation of a civil protection order,

R.C. 2919.27(A)(1), (B)(3), a felony of the fifth degree.                       In
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exchange, the State dismissed eleven other charges and recommended

community control sanctions.    The trial court sentenced Defendant

on May 12, 2009, to three years of community control sanctions,

which include special conditions prohibiting Defendant from having

any contact with the victim, his wife.

     {¶ 2} Defendant did not appeal his conviction and sentence.

On June 22, 2010, following a hearing, the trial court found that

Defendant had violated the terms of his community control by

committing a new criminal offense, causing or attempting to cause

physical harm to his wife on June 9, 2010.        The trial court

continued Defendant on community control, however, with additional

conditions, including prohibiting Defendant from having any

contact with the victim/wife.

     {¶ 3} On July 22, 2010, following a hearing, the trial court

found that Defendant had once again violated his community control

by repeatedly making contact with the victim between July 5, 2010

and July 13, 2010.   The trial court revoked Defendant’s community

control and sentenced Defendant to concurrent prison terms of six

months for assault and twelve months for violation of a civil

protection order.

     {¶ 4} Defendant timely appealed to this court from the trial

court’s decision revoking his community control.       Defendant’s

appellate counsel filed an Anders brief, Anders v. California
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(1967), 386 U.S. 738, 87 S.Ct. 1396, 19 L.Ed.2d 493, stating that

she 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.

     {¶ 5} Defendant’s   appellate   counsel   has   identified   one

possible issue for appeal.

     ASSIGNMENT OF ERROR

     {¶ 6} “APPELLANT’S GUILTY PLEA WAS NOT ENTERED KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY AS REQUIRED BY LAW.”

     {¶ 7} Defendant did not appeal the conviction for assault and

violation of a protection order that was entered on his guilty

pleas.   In State v. Perry (1967), 10 Ohio St.2d 175, at ¶9 of the

syllabus, the Ohio Supreme Court stated:

     {¶ 8} “Under the doctrine of res judicata, a final judgment

of conviction bars a convicted defendant who was represented by

counsel from raising and litigating in any proceeding except an

appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant

at the trial, which resulted in that judgment of conviction, or

on an appeal from that judgment.”
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      {¶ 9} Defendant’s claim that his guilty pleas were not entered

knowingly, intelligently and voluntarily clearly could have been

raised on direct appeal, but was not.           Accordingly, that claim

is now barred by res judicata.             Perry.     In any event, our

examination of this record discloses that the trial court complied

with Crim.R. 11(C)(2) in accepting Defendant’s guilty pleas which

were entered knowingly, intelligently, and voluntarily.

      {¶ 10} 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 accepting guilty or no contest pleas portrays those

qualities.       State   v.    Fisher,   Montgomery    App.    No.   23992,

2011-Ohio-629, at ¶6.

      {¶ 11} Crim. R. 11(C)(2) provides:

      {¶ 12} “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
                                                                    5

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

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} In   State   v.   Russell,   Clark   App.   No.   10CA54,

2011-Ohio-1738, at ¶7-8, we stated:

     {¶ 17} “The Supreme Court of Ohio has urged trial courts to

literally comply with Crim.R. 11. Clark at ¶ 29. The trial court

must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to

the waiver of constitutional rights. Clark at ¶ 31. The failure

to adequately inform a defendant of his constitutional rights would

invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly. State v. Griggs, 103 Ohio St.3d

85, 2004–Ohio–4415, ¶ 12.

     {¶ 18} “However, because Crim.R. 11(C)(2)(a) and (b) involve
                                                                     6

non-constitutional rights, the trial court need only substantially

comply with those requirements. State v. Nero (1990), 56 Ohio St.3d

106, 108; Greene at ¶ 9. 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. State v. Miller, Clark App. No. 08 CA 90, 2010–Ohio–4760,

¶ 8, citing State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200,

¶ 15. A defendant who challenges his guilty plea on the ground

that the trial court did not substantially comply with Crim.R.

11(C)(2)(a) and (b) must show a prejudicial effect, which requires

the defendant to show that the plea would otherwise not have been

entered. Griggs at ¶ 12.”

     {¶ 19} The record of the plea hearing in this case demonstrates

that the trial court strictly complied with Crim.R. 11(C)(2)(c)

in advising Defendant about the various constitutional rights he

would be giving up by pleading guilty.         Furthermore, the trial

court substantially complied with Crim.R. 11(C)(2)(a) and (b) in

determining    Defendant’s    understanding       of   the     various

non-constitutional matters.   Pursuant to the plea agreement, the

State recommended community control sanctions and the trial court

imposed that recommended sentence.     Defendant’s guilty pleas were

entered   knowingly,   intelligently     and    voluntarily.      This

assignment of error lacks arguable merit.
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     {¶ 20} 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

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.
Kathryn L. Bowling, Esq.
Timothy Havens
Hon. Roger B. Wilson
