[Cite as State v. Davis, 2013-Ohio-1642.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ROSS COUNTY


STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :   Case No. 11CA3262

        vs.                                          :

JERRY L. DAVIS,                                      :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                         :

______________________________________________________________

                                             APPEARANCES:

COUNSEL FOR APPELLANT:                      James S. Sweeney, James Sweeney Law, LLC, 673
                                            Mohawk Street, Ste 403, Columbus, Ohio 43206

COUNSEL FOR APPELLEE:         Matthew S. Schmidt, Ross County Prosecuting Attorney,
                              72 North Paint Street, Chillicothe, Ohio 45601
_________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-22-13
ABELE, J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of

conviction and sentence. Jerry L. Davis, defendant below and appellant herein, pled guilty to:

(1) rape in violation of R.C. 2907.02(B); (2) three counts of sexual battery in violation of R.C.

2907.03; and (3) failure to register a change of address in violation of R.C. 2950.05. Appellant

assigns the following error for review:

                 “DEFENDANT-APPELLANT’S GUILTY PLEA WAS NOT
                 KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY
                 MADE AS TO THE SENTENCE HE COULD BE SUBJECTED
                 TO.”
        {¶ 2} On March 26, 2010, the Ross County Grand Jury returned an indictment that

charged appellant with the aforementioned crimes. Appellant initially pled not guilty, but later

agreed to plead guilty to all offenses in exchange for the State's recommendation of cumulative

twenty year prison sentence. On January 13, 2011, after ascertaining that appellant understood

his constitutional rights, the trial court accepted appellant's pleas and found him guilty as

charged.

        {¶ 3} Subsequently, the trial court sentenced appellant to serve ten years for rape, three

years on each sexual battery count and one year for the failure to register an address change.

The court ordered the last charge to be served concurrently with all the others, but ordered the

sentences on the first four charges to be served consecutively to one another for a nineteen year

cumulative total. On January 30, 2012, this Court granted appellant leave to file a delayed, and

the matter is now before us for review.

        {¶ 4} In his sole assignment of error, appellant asserts that he did not knowingly,

voluntarily or intelligently enter his guilty plea. In particular, appellant posits that the trial court

erroneously informed him that he could be imprisoned for one to five years for the failure to

register a change of address when, in fact, he could only have received a term of twelve to

thirty-six months. Thus, appellant argues that his guilty plea was unknowing and involuntary.

        {¶ 5} Initially, we point out, and appellant correctly notes at the end of his brief's

argument portion, that a claim that a guilty plea was involuntary requires the challenger to

establish prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, at ¶15; State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Generally, the test is

whether the plea would otherwise have been made. Veney, supra at ¶15; Nero, supra at 108. In
ROSS, 11CA3262                                                                                        3

the case at bar, for appellant to show that his plea would have been otherwise, he must argue that,

although he willingly pled guilty to a greater term of imprisonment, he would not have been

willing to plead to a lesser term of imprisonment. Obviously, we find no merit in this argument.



       {¶ 6} As to the merits of appellant’s argument, as the State notes in its brief, appellant

relies on a statutory subsection of R.C. 2929.14 that did not exist at the time he received his

sentence. Subsection (A)(3)(b) of R.C. 2929.14, which imposes a range of prison sentences for

third degree felonies of twelve to thirty-six months, was not added to the Ohio Revised Code

until Am.Sub.H.B. No. 86, 2011 Ohio Laws File 29, with the effective date of September 30,

2011. Here, the trial court filed the sentencing entry on June 30, 2011, several months before

the new legislation's effective date. Prior to that legislation's effective date, one to five years

spanned the range of sentences for third degree felonies. See prior version of R.C.

2929.14(A)(3)(a). This, in fact, was the range of sentence that the trial court advised appellant.

Therefore, the trial court’s colloquy with appellant regarding the maximum penalty on count five

of the indictment was indeed correct. Thus, appellant has not persuaded us that he entered his

guilty plea either unknowingly or involuntarily.

       {¶ 7} For these reasons, we hereby overrule appellant's assignment of error and affirm

the trial court's judgment.

                                                               JUDGMENT AFFIRMED.
[Cite as State v. Davis, 2013-Ohio-1642.]
                                            JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.

        The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

        McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion

                                                               For the Court




                                                                BY:
                                               Peter B. Abele, Judge



                                        NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
