[Cite as State v. VanWinkle, 2017-Ohio-8194.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    CHAMPAIGN COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   C.A. CASE NO. 2017-CA-4
                                                     :
 v.                                                  :   T.C. NO. 16-CR-244
                                                     :
 BENJIE VanWINKLE                                    :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                                OPINION

               Rendered on the ___13th __ day of _____October_____, 2017.

                                                ...........

KEVIN TALEBI, Atty. Reg. No. 000069198, 200 N. Main Street, Urbana, Ohio 43078
     Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, 130 W. Second Street, Suite 1624, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, J.

        {¶ 1} Benjie VanWinkle was originally charged by indictment with 6 counts of

rape, a felony of the first degree, in violation of R.C. §2907.02 (A)(1)(b)(B), and eleven

counts of gross sexual imposition, a felony of the third degree, in violation of R.C.

§2907.05 (A)(4)(C)(2). A plea hearing took place on January 4, 2017, and pursuant to a
                                                                                           -2-


plea agreement VanWinkle entered a guilty plea to one count of rape, and in exchange

the State agreed to dismiss the remaining 16 counts. VanWinkle was designated a Tier

III offender and sentenced to a minimum of ten years and a maximum term of life

imprisonment. The trial court ran this term consecutive to VanWinkle’s Miami County

Case No. 2016-CR-66 pursuant to R.C. §2971.03(E). VanWinkle’s aggregate sentence

was 30 years and a maximum term of life imprisonment.

       {¶ 2} Appointed counsel for defendant-appellant Benjie VanWinkle submitted an

appellate brief under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493

(1967), alleging that no arguably meritorious issues exist for appeal. Counsel set forth

three potential assignments of error: 1) whether the appellant’s plea was made knowingly,

voluntarily, or intelligently; 2) whether the trial court followed the mandates of Crim.R. 11;

and 3) whether the trial court erred by placing Appellant under oath during the plea

colloquy. After a thorough review of the record, this Court agrees that the trial court’s

proceedings were proper, and we affirm the trial court’s judgment.

       {¶ 3} Under Crim.R. 11(C)(2), a court shall not accept a guilty plea in a felony

case without first addressing the defendant personally and determining defendant is

making the plea voluntarily, defendant understands the effect of the plea, and defendant

understands he is waiving his rights. At the plea hearing the court engaged in a detailed

plea colloquy that was sufficient to meet the requirements of Ohio Crim.R. 11. VanWinkle

responded appropriately to all questions asked throughout the plea colloquy and there is

no evidence in the transcript to indicate any confusion or misunderstanding on his part.

       {¶ 4} Lastly, appellate counsel argues that a potential assignment is whether the

trial court erred by placing VanWinkle under oath during the plea colloquy. This potential
                                                                                          -3-


error was not brought up during the hearing and therefore, under Crim.R. 52 it would need

to constitute a plain error before a reversal is warranted. Under State v. Barnes, 94 Ohio

St.3d 21, 27, 759 N.E.2d 1240 (2002), in a criminal case the reviewing court can correct

a plain error if: 1) an error occurred; 2) the error must be plain, i.e. obvious; and 3) the

error must have affected “substantial rights” meaning it must have affected the outcome

of the trial. There is no authority that the defendant being under oath during a plea hearing

constitutes error nor would it be an obvious error. Furthermore, had VanWinkle not been

placed under oath there is no indication it would have affected the outcome or his intent

to plead guilty.

       {¶ 5} Pursuant to the performance of our duty, under Anders v. California, to

conduct an independent review of the record, we have found no potential assignments of

error having arguable merit. We conclude that this appeal is wholly frivolous. Therefore,

the judgement of the trial court is affirmed.

                                          .............

HALL, P.J. and TUCKER, J., concur.

Copies mailed to:

Kevin Talebi
Johnna M. Shia
Benjie D. VanWinkle
Hon. Nick A. Selvaggio
