[Cite as State v. Green, 2012-Ohio-1941.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96966




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       DANIEL GREEN
                                                     DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-545667

        BEFORE: Sweeney, J., Boyle, P.J., and Keough, J.
        RELEASED AND JOURNALIZED: May 3, 2012
FOR APPELLANT

Daniel Green, Pro Se
No. 601-874
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43302

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brent C. Kirvel, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

       {¶1} Defendant-appellant, Daniel Green, appeals following his conviction and

sentence on one count of sexual battery. For the reasons that follow, we affirm.

       {¶2} Defendant was charged with the following offenses: two counts of rape in

violation of R.C. 2907.02(A)(2); two counts of sexual battery in violation of R.C.

2907.029(A)(2); two counts of sexual battery in violation of R.C. 2907.03(A)(1); two

counts of sexual battery in violation of R.C. 2907.03(A)(9); two counts of gross sexual

imposition in violation of R.C. 2907.05(A)(1); and two counts of kidnapping in violation

of R.C. 2905.01(A)(4).        Every count contained either a sexually violent predator

specification or a sexual motivation specification.

       {¶3} On February 28, 2011, the trial court held a hearing where the state reviewed

the charges and specifications, potential penalties for each, and the plea offer. The trial

judge advised defendant “[i]f you’d like to have a trial, I am happy to do that. That is your

right and if you would like to exercise that right, I certainly will go ahead with the trial.”

The trial court explained its reason for reviewing the charges, potential penalties, and plea

offers on the record was “to give [defendant] the opportunity to hear what you’re facing as

charged and what you’re facing should you enter the plea bargain.” The court explained

that defendant had “to decide what’s best for [him] * * * like a cost benefits analysis or

risk benefit analysis * * * what [his] risk is if [he] should have a trial and what [his] risk or
exposure is if [he] should enter a plea.” The court acknowledged that defendant could be

found not guilty at trial.

       {¶4} Defendant was advised of the potential penalties he faced if convicted of all

counts and specifications in the indictment. He was informed that he faced a potential

sentence of at least sixty years. Defendant was further informed that if he was convicted

of the sexually violent predator specifications, the parole board would have discretion to

deny him parole for life. Defendant indicated that he understood.

       {¶5} The trial court advised, “I have no idea what the evidence is, how it would

come out, whether you would be found guilty or not guilty. That’s something for the jury

to decide.”

       {¶6} The state proceeded to place the plea offer on the record. The state was

willing to accept a guilty plea on one count of sexual battery without any specifications. In

exchange, all remaining counts and specifications would be dismissed.

       {¶7} The trial court explained that the plea offer reduced defendant’s potential

penalty to a probationable third degree felony. Defendant was advised that he would no

longer face a potential additional ten years or the life tail with the parole board because the

sexual violent predator specification would be removed. Defendant was told his potential

penalty under the plea agreement “would be anywhere from a probationable offense, one

to five years in prison” with “a tier three registration.”1


       The tier three registration related the statutory registration and reporting
        1

requirements      involved       with     a      sexual      offense     conviction.
       {¶8} On February 28, 2011, defendant indicated his desire to proceed with a trial

with the explicit understanding that above-referenced plea offer would no longer be

available to him. At that point, the trial court addressed defendant’s speedy trial rights.

Defendant executed a waiver of speedy trial through May 4, 2011.

       {¶9} Another hearing was held on April 4, 2011 where defendant expressed his

desire to enter a guilty plea. Defendant pled guilty to one count of sexual battery, a third

degree felony, and all other specifications and charges were dismissed.

       {¶10} Defendant subsequently filed a motion to withdraw his guilty plea that the

trial court denied after holding a hearing. Defendant also filed a motion to disqualify his

counsel that was also denied after a hearing. The trial court held a sentencing hearing and

ordered defendant to serve a four year prison sentence.         Defendant was advised of

additional penalties and consequences including postrelease control as well as registration

and reporting requirements implicated by his conviction.

       {¶11} Defendant assigns five errors for our review.

       {¶12}   “Assignment of Error No. I: The trial court’s participation in the plea

bargain process rendered the proceedings fundamentally unfair as to deny Appellant due

process of law.”

       {¶13}       “A trial judge’s participation in the plea bargaining process will be

carefully scrutinized to determine if it affected the voluntariness of the defendant’s plea.”

State v. Byrd, 63 Ohio St.2d 288, 407 N.E.2d 1384 (1980) syllabus.
       {¶14} The Ohio Supreme Court determined from the record facts in Byrd that “the

judge’s conduct in all probability led appellant to believe he could not get a fair trial.” Id.

at 294. In Byrd, the judge solicited private meetings with the defendant’s mother and

sister and encouraged them to pressure Byrd to enter a guilty plea. The mother and sister

said that the judge told them defendant would most likely get “the chair” if he went to

trial. After speaking with his relatives, Byrd met with the judge in chambers and without

legal representation where he was further pressured to enter a guilty plea by the judge.

“The judge took a very active role in arranging the plea bargain. In essence, he negotiated

with the assistant prosecuting attorney.” Id. at 290. The judge told Byrd he thought the

plea was “a pretty good deal.” Id. “[T]he judge enlisted Lt. Coney’s aid in his efforts to

persuade Byrd to enter a plea. Coney was admittedly a friend of Byrd’s family. It is

apparent from the transcript that Coney, on the judge’s request, had pressured Byrd to

enter a plea prior to the meeting as well.” Id.         In addition, Byrd suffered from a

methadone addiction and he was not given an opportunity to discuss the judge’s remarks

with counsel. The Ohio Supreme Court found both factors exacerbated the coercive effect

of the judge’s involvement. Id.

       {¶15} In this case, the trial court never expressed an attitude about defendant’s

guilt prior to him entering a guilty plea. Quite the opposite, the trial court noted that

defendant could be found not guilty at trial. The court stated “I have no idea what the

evidence is, how it would come out, whether you would be found guilty or not guilty.

That’s something for the jury to decide.”
       {¶16} Defendant cites to portions of the record where the trial court explained the

potential penalties that he faced on the various counts of the indictment. The trial court

inquired if defendant understood them. Defendant maintains this colloquy led him to

believe he could not receive a fair trial. The transcript, however, does not support this

view. Defendant was informed of the significant time he faced if convicted, which he

agreed was “in essence a life sentence.” Defendant does not indicate that this advice was

inaccurate or wrong.

       {¶17} Defendant’s claims of coercion are further undermined by the fact he, in

fact, rejected the plea offer on the record. The trial court accepted defendant’s decision

and began preparations for trial.           Although the February 28, 2011 transcript of

proceedings indicated that the plea offer was to expire that day, defendant was apparently

still able to enter the same guilty plea in April of that year.

       {¶18} The trial court did not take an active role in the plea bargain at all. The

transcript reflects that the trial court merely had the state place the terms of the plea offer

on the record. The court explained its reasons for doing so was to ensure that defendant

made an informed decision to proceed to trial.

       {¶19} This is not only permissible but a good practice in light of recent authority

that recognizes the critical role plea negotiations play in criminal proceedings. See

Missouri v. Frye,           U.S.        ,        S.Ct.        ,     L.Ed.2d        , 2012 WL

932020 (U.S. 2012) (counsel was deficient in failing to communicate to defendant written

plea offer before it expired). In Frye, the United States Supreme Court observed that
“formal offers can be made part of the record at any subsequent plea proceeding or before

a trial on the merits, all to ensure that a defendant has been fully advised before those

further proceedings commence.” Id.

       {¶20} The transcript reflects that the trial court made the state’s formal plea offer

part of the record and nothing more. Accordingly, this assignment of error is overruled.

       {¶21}    “Assignment of Error No. II: The Appellee engaged in intentional

misconduct calculated to goad Appellant into entering his initial guilty plea.”

       {¶22} “Assignment of Error No. III: Appellant was denied the effective assistance

of counsel in violation of his Sixth Amendment Right to counsel and his Fourteenth

Amendment Right to due process.”

       {¶23}    Defendant contends that the indictment improperly charged him with

sexually violent predator specifications when he had no prior conviction for a sexually

violent of offense. He contends this constituted both intentional misconduct on the part of

the state as a means of leveraging him into a guilty plea and that his counsel was deficient

by allowing him to enter a guilty plea without challenging it.

       {¶24} Defendant relies on State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238,

818 N.E.2d 283, in support of his position. In Smith, the court held that a “conviction of a

sexually violent offense cannot support the specification that the offender is a sexually

violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction

and the sexually violent predator specification are charged in the same indictment.” Id. at

syllabus. However, in reaching this conclusion the court was interpreting a prior version
of R.C. 2971.01(H)(1).2 The General Assembly subsequently amended the statute with

the purpose of clarifying “‘that the Sexually Violent Predator Sentencing Law does not

require that an offender have a prior conviction of a sexually violent offense in order to be

sentenced under that law.’” State v. Wagers, 12th Dist. No. CA2009-06-018,

2010-Ohio-2311, ¶ 30, quoting, 2004 Ohio Laws File 163 (Am.Sub.H.B. 473); see also

State v. Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶ 50. Courts have construed the

present version of the law to supersede Smith and permit the specification to apply to

first-time offenders being charged with a sexually violent offense in the same indictment.

Id.

       {¶25}   Given the revisions to the statute and the General Assembly’s explicit

purposes in enacting them, defendant’s reliance on Smith is misplaced. The present law

allows for the inclusion of a sexually violent predator specification in the indictment of

one being charged for the first time with a sexually violent offense. Accordingly, the state

did not engage in any intentional misconduct concerning the inclusion of the sexually

violent predator specifications in defendant’s indictment nor did defense counsel render




       2
        “Prior to April 29, 2005, R.C. 2971[.01](H)(1), defined a sexually violent
predator as ‘a person who has been convicted of or pleaded guilty to committing, on
or after January 1, 1997, a sexually violent offense and is likely to engage in the
future in one or more sexually violent offenses.’” State v. Wagers, 12th Dist. No.
CA2009-06-018, 2010-Ohio-2311, ¶ 28. The current version of the statute provides:
“‘Sexually violent predator’ means a person who, on or after January 1, 1997,
commits a sexually violent offense and is likely to engage in the future in one or
more sexually violent offenses.” R.C. 2971.01(H)(1), emphasis added.
ineffective assistance of counsel regarding them.       These assignments of error are

overruled.

       {¶26} “Assignment of Error IV: The trial court erred resulting in prejudice to

Appellant by accepting his plea without first addressing him personally and informing him

a guilty plea is a complete admission of guilt.”

       {¶27} Defendant alleges that he did not understand his guilty plea was a complete

admission of guilt. This relates to a non-constitutional right, which implicates a standard

of review as to whether the trial court substantially complied with Crim.R. 11. State v.

Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990).

       Though 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, failure to comply with nonconstitutional
       rights will not invalidate a plea unless the defendant thereby suffered
       prejudice. [Nero, 56 Ohio St.3d], at 108, 564 N.E.2d 474. The test for
       prejudice is “whether the plea would have otherwise been made.” Id. Under
       the substantial-compliance standard, we review the totality of circumstances
       surrounding [defendant’s] plea and determine whether he subjectively
       understood that a guilty plea is a complete admission of guilt. Id.

State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. The record here

indicates that defendant understood his guilty plea was a complete admission of guilt.

       {¶28}     The court reviewed the various constitutional rights that defendant was

giving up by entering the guilty plea, including his right to counsel, to subpoena and

cross-examine witnesses, to have the state prove his guilt beyond a reasonable doubt, and

the right to remain silent and not testify.
       {¶29}      The discovery produced to the defense included video surveillance

showing defendant and the fourteen year old victim entering a room in the municipal

recreation center together where they stayed for a period of time. Scientific testing

identified the presence of defendant’s and the victim’s seminal fluid. Further, the record

indicates that defendant voluntarily submitted to a lie detector test, which he failed.

       {¶30}     One who enters a guilty plea without asserting actual innocence is

presumed to understand he has completely admitted his guilt. Id. at ¶ 19. At no time

during the guilty plea proceedings did the defendant assert actual innocence. The record

demonstrates that defendant understood that by entering his guilty plea, he was admitting

to committing sexual battery. This assignment of error is overruled.

       {¶31}    “Assignment of Error V: The trial court erred resulting in prejudice to

Appellant when it imposed four years near the maximum sentence for a first time offender

in violation of due process clause to the State and Federal Constitutions.”

       {¶32}    Defendant asserts that his four year prison term is contrary to law because

he is a first-time offender and the sentence is at the high end of the sentencing range for

his conviction. Defendant generally asserts that amendments to Ohio’s sentencing law,

which took effect on September 30, 2011, render his sentence contrary to law. They do

not. The current version of the law provides that the sentencing range for felonies of the

third degree includes a prison term anywhere from “twelve, eighteen, twenty-four, thirty,

thirty-six, forty-two, forty-eight, fifty-four, or sixty months.” See R.C. 2929.14(A)(3)(a).

Defendant’s four year prison term is within the permissible range and there is no present
requirement that the trial court make any explicit statutory findings before imposing a

prison sentence on a first-time offender.      Accordingly, defendant’s assertions to the

contrary are incorrect and this assignment of error is overruled.

       {¶33}    Judgment affirmed.

       It is ordered that appellee recover from appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
