[Cite as State v. Rowbotham, 2013-Ohio-2286.]



STATE OF OHIO                    )                  IN THE COURT OF APPEALS OF OHIO
                                 )
MAHONING COUNTY                  )       SS:                 SEVENTH DISTRICT



STATE OF OHIO,                                  )       CASE NO.   12 MA 152
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )
VS.                                             )       JUDGMENT ENTRY
                                                )
DAVID ROWBOTHAM,                                )
                                                )
        DEFENDANT-APPELLANT.                    )


        For the reasons stated in the Opinion rendered herein, the assignments of

error are without merit and are overruled. It is the final judgment and order of this

Court that the judgment of the Common Pleas Court, Mahoning County, Ohio is

affirmed. Costs taxed against appellant.




                                                        ______________________________




                                                        ______________________________




                                                        ______________________________
                                                                              JUDGES.
[Cite as State v. Rowbotham, 2013-Ohio-2286.]

                          STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


STATE OF OHIO,                                  )   CASE NO.    12 MA 152
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )
VS.                                             )   OPINION
                                                )
DAVID ROWBOTHAM,                                )
                                                )
        DEFENDANT-APPELLANT.                    )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 09CR1143.


JUDGMENT:                                           Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Paul Gains
                                                    Prosecuting Attorney
                                                    Attorney Ralph Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Attorney Donna Jewell McCollum
                                                    201 East Commerce Street, Suite 346
                                                    Youngstown, Ohio 44503


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                    Dated: May 30, 2013
[Cite as State v. Rowbotham, 2013-Ohio-2286.]
VUKOVICH, J.


        {¶1}    Defendant-appellant David Rowbotham has been permitted to file a
delayed appeal from two sentencing entries filed on May 13, 2011. Appellant’s first
argument is that the trial court erred in denying his motion for judicial release without
a hearing. Yet, the cause before us constitutes an appeal of the May 13, 2011
sentencing orders, not subsequent orders. Regardless, this argument cannot be
addressed as decisions on judicial release are not final appealable orders.
        {¶2}    Appellant also claims within his first assignment of error that the state
failed to fulfill its promise to not object to judicial release because the state refrained
from responding to his request for judicial release.          However, refraining from
responding is the equivalent of not objecting. In any event, as aforementioned, this is
an appeal of the May 2011 sentencing orders. Since the alleged lack of action by the
state occurred one year after those entries, this contention is not properly before this
court through this proceeding.
        {¶3}    Appellant’s second assignment of error relates to his plea hearing. He
contends that the trial court failed to mention compulsory process, failed to
sufficiently explain he was waiving his right to have the state prove each element
beyond a reasonable doubt, and failed to outline the elements. This argument is
without merit as the court did sufficiently explain the constitutional rights he was
waiving and the court has no obligation to outline the elements of the offenses.
Consequently, the trial court’s May 13, 2011 sentencing entries are affirmed.
                                  STATEMENT OF THE CASE
        {¶4}    In Mahoning County Common Pleas Court Case Number 09CR1143,
appellant was charged with felonious assault and extortion, second and third degree
felonies respectively. In exchange for his guilty plea, the state amended the charges
to aggravated assault and attempted extortion, both fourth degree felonies. As for
sentencing, the state agreed to recommend the maximum sentence of eighteen
months on each count to run concurrently (and to run concurrently with 04CR1332, a
case out of another court). The state also agreed “to not object to judicial release
after 6 months.”
                                                                                         -2-

       {¶5}    In Case Number 10CR275A, appellant was charged with bribery, a third
degree felony. In exchange for his guilty plea, the state amended the charge to
attempted bribery, a fourth degree felony. The state recommended the maximum
sentence of eighteen months to run consecutively to 09CR1143 and concurrently
with 04CR1332. Again, the state agreed to not object to judicial release after six
months.
       {¶6}    In a May 13, 2011 judgment entry, the court imposed the agreed upon
sentence:     concurrent sentences of eighteen months for aggravated assault and
attempted extortion and a consecutive sentence of eighteen months for attempted
bribery, all to run concurrently to the sentence imposed by another court in
04CR1332.
       {¶7}    On April 2, 2012, appellant, through new counsel, filed a motion for
judicial release under both case numbers. The motion contained some details but
did not advise the court that the state had previously agreed not to enter an objection
to judicial release. The court requested the state to file any response by May 20,
2012. The state never filed a response. On May 29, 2012, the trial court denied the
motion for judicial release.
       {¶8}    On June 7, 2012, appellant filed a pro se motion for reconsideration of
the motion for judicial release. He provided more details and claimed that he was
entitled to judicial release after six months under his plea deal. He attached the plea
and sentencing transcript for the court’s consideration. On August 8, 2012, the court
denied appellant’s motion for reconsideration.
       {¶9}    On August 16, 2012, appellant filed a notice of appeal from “the
Judgment of Conviction, entered in this action on May 12, 2011.” He simultaneously
filed a motion for leave to file a delayed appeal “from the final judgment of conviction
and sentence * * * on May 12, 2011.” He claimed that his trial attorney “dropped the
ball” through neglect by failing to file an appeal after agreeing that he would do so.
       {¶10} After permitting the delayed appeal and reviewing the file, however, we
notice that on the record at the plea and sentencing hearing, defense counsel twice
                                                                                      -3-

noted that there would be no right to appeal due to the agreed upon sentence. (Tr. 4,
14). In any event, the arguments briefed on appeal are without merit.
                      ASSIGNMENT OF ERROR NUMBER ONE
       {¶11} Appellant sets forth two assignments of error, the first of which
contends:
       {¶12} “The Trial Court violated Appellant’s right of due process by failing to
conduct a hearing on Appellant’s Motion for Judicial release.”
       {¶13} Related to the text of this assignment of error, appellant briefly
complains that the trial court did not order his institutional records or conduct a
hearing on his motion for judicial release. This seems to be an attack on the trial
court’s April 12, 2012 denial of judicial release and/or the trial court’s August 9, 2012
denial of reconsideration of judicial release
       {¶14} However, as the state points out, the denial of a motion for judicial
release is not a final appealable order. See State v. Keylor, 7th Dist. No. 02MA12,
2003-Ohio-3491, ¶ 21 (no substantial right affected by denying motion for judicial
release as one is obligated to serve his term), citing State v. Coffman, 91 Ohio St.3d
125, 127, 743 N.E.2d 644 (2001) (denial of motion for shock probation is not final
appealable no matter what argument is presented). See also State v. Allen, 5th Dist.
No. CT2012-0034, 2012-Ohio-5141, ¶ 9 (denial of motion for judicial release without
a hearing is not an appealable order); State v. Williams, 8th Dist. No. 95359, 2011-
Ohio-120, ¶ 7-12; State v. Headley, 11th Dist. No. 2008-T-0126, 2009-Ohio-402, ¶ 4;
State v. Hedgecoth, 1st Dist. No. C-060190, 2007-Ohio-4462, ¶ 4-6; State v. Ingram,
10th Dist. No. 03AP-149, 2003-Ohio-5380, ¶ 5-7; State v. Green, 2d Dist. No.
02CA17 (May 22, 2002); State v. Woods, 141 Ohio App.3d 549, 550, 752 N.E.2d 309
(9th Dist.2001).
       {¶15} Thus, the court’s April 12, 2012 denial of judicial release and the court’s
August 9, 2012 denial of reconsideration of judicial release are not subject to appeal
and any arguments concerning the merits of those decisions cannot be addressed in
this proceeding.
                                                                                      -4-

       {¶16} Also included under this assignment of error, albeit unrelated to the text
of the assignment itself, is the argument that by not filing a response to his motion for
judicial release after the trial court put on a response date, the state failed to comply
with their agreement to not object to judicial release. Appellant thus concludes that
his guilty plea is void because it was induced by an unfulfilled promise.
       {¶17} Initially, it is observed that the state agreed to not object to judicial
release. When the state failed to file a response to appellant’s motion for judicial
release, the state did not breach its agreement to not object. The state did not agree
to engage in an affirmative action upon appellant’s future request for judicial release.
Rather, the state agreed to refrain from objecting, and the state did thereafter refrain
from objecting when it had the chance.
       {¶18} In any event, appellant asked for a delayed appeal from the May 12,
2011 plea and sentencing, which is memorialized in the court’s May 13, 2011
sentencing entries. The state’s alleged failure to act as agreed did not take place
until a year after those entries. As that alleged failure occurred after the relevant
period involved in this particular appeal, the issue is not properly before us in this
proceeding.
       {¶19} The only issues properly before this court in a direct appeal of the plea
and sentencing are those events that occurred prior to the final judgment of
conviction, not those that occurred thereafter.          We thus proceed to appellant’s
second assignment of error where he does make contentions about events occurring
prior to the final judgment of conviction in his case.
                      ASSIGNMENT OF ERROR NUMBER TWO
       {¶20} Appellant’s second assignment of error alleges:
       {¶21} “Failure of the Trial Court to follow evidentiary [sic] [criminal] rules
during the plea and sentencing hearing was contrary to law and an abuse of
discretion.”
       {¶22} A trial court accepting a felony plea must strictly comply with its
obligation under Crim.R. 11(C)(2)(c) to advise the defendant of and ensure he
understands that he is waiving his constitutional rights against self-incrimination, to a
                                                                                      -5-

jury trial, to confront one's accusers, to compel witnesses to testify by compulsory
process, and to have the state prove the defendant's guilt beyond a reasonable
doubt. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19–
27. Still, this does not require a rote recitation of the exact language of the rule. Id.
at 27. Rather, a reviewing court should focus on whether the “record shows that the
judge explained these rights in a manner reasonably intelligible to that defendant.”
Id.
       {¶23} Appellant contends that the trial court failed to strictly comply with its
obligation to advise him of the state’s burden and compulsory process. As to the first
constitutional right, the trial court advised appellant at the plea hearing, “you’re
waiving your right to make the state of Ohio prove their case beyond a reasonable
doubt.” The court asked appellant if he understood this, and appellant responded
that he did. (Tr. 7). Appellant complains that the court did not (1) specify that the
state had to prove “each element” beyond a reasonable doubt or (2) enumerate the
elements of the offenses.
       {¶24} However, even if a rote recitation was required, the exact language of
Crim.R. 11(C)(2)(c) provides, “to require the state to prove its case beyond a
reasonable doubt.” It does not say that the court must inform the defendant that the
state would have to prove “each element” beyond a reasonable doubt.
       {¶25} In any event, the Supreme Court has stated that when the trial court’s
attempt to explain a constitutional right to a pleading defendant is present on the
record but questionable in effect, resort to other items in the record (including the
written plea) is permissible to determine whether the explanation imparted sufficient
understanding. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d
826, ¶ 23-25. The written plea here states that appellant understood that by entering
the plea, he was waiving the right “to require the state to prove me guilty of each and
every element of the offense(s) and/or specification(s) for which I am charged beyond
a reasonable doubt at trial * * *.” (Emphasis added.) See Written Plea. Either way,
appellant’s first argument fails.
                                                                                     -6-

      {¶26} As to the second part of his argument concerning the elements, a
recitation of the elements of the offense is not one of the defendant’s constitutional
rights at the plea hearing. See Veney, 120 Ohio St.3d 176 at ¶ 19–27. Civ.R.
11(C)(2)(a) provides only that the court shall determine that the defendant has an
understanding of the nature of the charges. It does not require a vocal explanation
by the court but merely for the court to be satisfied that the defendant in fact
understands the charges.     Furthermore, this non-constitutional provision requires
substantial (not strict) compliance by a trial court. See State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990). Substantial compliance means that under the
totality of the circumstances the defendant subjectively understands the item at issue.
See id.
      {¶27} “[Th]e trial court does not need to inform the accused of the actual
elements of the charged offenses; a defendant can obtain this information from
whatever source, be it from the trial court, the prosecutor, or some other source.”
State v. Williams, 7th Dist. No. 11MA131, 2012-Ohio-6277, ¶ 24, citing State v.
Johnson, 7th Dist. No. 07-MA-8, 2008–Ohio–1065, ¶ 14-15 (defendant signed a
document wherein he stated, “[c]ounsel has advised me and I fully understand the
nature of the charge(s) against me and the elements contained therein” and his
counsel told the trial court that the accused was ready to plead guilty); State v.
Roman, 7th Dist. No. 06MA32, 2007-Ohio-5243, ¶ 25, 31. See also State v. Carter,
60 Ohio St.2d 34, 38, 396 N.E.2d 757, 760 (1979).
      {¶28} “In order for a trial court to determine that a defendant in a criminal case
understands the nature of the charge to which he was entering a guilty plea, it is not
always necessary that the trial court advise the defendant of the elements of the
crime, or to specifically ask the defendant if he understands the charge, so long as
the totality of the circumstances are such that the trial court is warranted in making a
determination that the defendant understands the charge.” State v. Susany, 7th Dist.
No. 07MA7, 2008-Ohio-1543, ¶ 58, quoting State v. Rainey, 3 Ohio App.3d 441, 446
N.E.2d 188, ¶ 1 of syllabus (10th Dist.1982).
                                                                                     -7-

      {¶29} Apart from a small class of rights that require specific advice from the
court, it is the responsibility of defense counsel to advise the defendant on the other
rights he is waiving and the nature of the charges. State v. Fitzpatrick, 102 Ohio
St.3d 321, 810 N.E.2d 927, 2004-Ohio-3167, ¶ 57-59.          Thus, where the record
contains a statement that the defendant has been advised of the nature of the
charges, the trial court can determine that he in fact understood the nature of the
charges. See id.
      {¶30} Here, the state noted for the record that plea negotiations had been
ongoing for quite some time.         (Tr. 3).    Defense counsel specifically and
spontaneously declared that appellant waived any further reading of the indictments,
that he fully understood them, and that he did not require the court to read them
again. The court ensured that appellant read the indictments, went over them with
counsel, and wished to waive any further reading. (Tr. 5).
      {¶31} The court listed the prior charges and the amended charges, along with
their degrees, and went over the maximum penalties on the amended charges. (Tr.
6, 9). Notably, the amended charges were still the same general types of offenses as
the original charges with bribery and extortion being lowered to attempts and
felonious assault being lowered to aggravated assault.
      {¶32} Additionally, in both of the written plea agreements, appellant stated
that he fully understood the nature of the charges and the elements contained
therein. The court ensured that appellant read and signed the plea agreements and
went over them with his attorney. (Tr. 10-11). Therefore, there is evidence in the
record from which the trial court could conclude that appellant had an understanding
of the nature of the charges as required by Civ.R. 11(C)(2)(a).
      {¶33} Lastly, appellant contends that the trial court did not strictly comply with
its obligation to inform him of his right to compulsory process. Pursuant to Crim.R.
11(C)(2)(c), the court accepting a felony plea shall inform the defendant and
determine that the defendant understands that he is waiving the right “to have
compulsory process for obtaining witnesses in the defendant’s favor.”
                                                                                        -8-

       {¶34} With regards to this right, the trial court stated, “You’re also waiving the
right to have your lawyer issue subpoenas to bring people in to assist you[.]” (Tr. 8).
Appellant stated that he understood this right.
       {¶35} True, the trial court did not use the phrase “compulsory process.”
However, a rote recitation is not required where the record shows the explanation
was reasonably intelligible. See Veney, 120 Ohio St.3d 176 at ¶ 18, 27 (although
exact language is preferred, rote recitation of language of rule not required for strict
compliance).
       {¶36} In one case, the Sixth District overturned a plea where the trial court
merely stated that the defendant was waiving the “right to call witnesses to speak on
your behalf.” State v. Barker, 6th Dist. No. L-09-1139, 2010-Ohio-3067, ¶ 13. The
appellate court held that the use of the term “compulsory process” is not required, but
the trial court’s explanation must use words that are equivalent, such as “power to
force,” “subpoena,” or “compel” a witness to appear and testify on a defendant's
behalf. Id.
       {¶37} The Supreme Court disagreed with the latter holding and concluded
that the statement that the defendant had the “right to call witnesses to speak on your
behalf” constituted strict compliance, finding that “to call” is reasonably intelligible as
meaning “to subpoena” or “to have compulsory process.” Barker, 129 Ohio St.3d 472
at ¶ 17-20. Here, the trial court specifically used the word subpoena and said that his
lawyer can issue subpoenas to bring people in to assist in his case. The language
used by the trial court regarding this constitutional right was “reasonably intelligible to
the defendant.” See State v. Sturm, 66 Ohio St.2d 483, 484, 422 N.E.2d 853 (1981).
       {¶38} Furthermore, as aforementioned, the Supreme Court has stated that
where the court attempts to explain the compulsory process right to the defendant,
and the attempt is questionable, resort to other items in the record (including the
written plea) is permissible to determine whether the explanation imparted sufficient
understanding. Barker, 129 Ohio St.3d 472 at ¶ 23-25. The written pleas in this case
stated that appellant understood that he was waiving his right “to have compulsory
                                                                                 -9-

subpoena process for obtaining witnesses in my favor[.]” Therefore, this argument is
without merit, and this assignment of error is overruled.
       {¶39} For all of these reasons, the May 13, 2011 judgment entries are
affirmed.

Donofrio, J., concurs.
DeGenaro, P.J., concurs.
