[Cite as State v. Myers, 2015-Ohio-3927.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 14 CA 112
ERIC MYERS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 14 CR 277


JUDGMENT:                                      Affirmed in Part; Reversed in Part
                                               and Remanded



DATE OF JUDGMENT ENTRY:                         September 23, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTOPHER REAMER                             ANDREW T. SANDERSON
ASSISTANT PROSECUTOR                           BURKETT & SANDERSON
20 South Second Street, Fourth Floor           73 North Sixth Street
Newark, Ohio 43055                             Newark, Ohio 43055
Licking County, Case No. 14 CA 112                                                        2

Wise, J.

       {¶1}. Appellant Eric E. Myers appeals his conviction, in the Court of Common

Pleas, Licking County, for one count of rape and several counts of gross sexual

imposition. Appellee is the State of Ohio. The relevant procedural facts leading to this

appeal are as follows.

       {¶2}. Following a bind-over from the Licking County Juvenile Court, Appellant

Myers was indicted by the Licking County Grand Jury on one count of rape (R.C.

2907.02(A)(1)(b)), a felony of the first degree, and five counts of gross sexual imposition

(R.C. 2907.05(A)(4)), all felonies of the third degree.

       {¶3}. Counts I, II, and III involved appellant's acts in 2008 with a nine- or ten-

year-old female victim, including digital insertion into the victim's vagina. Count IV

involved acts at a youth camp in 2009 with a male victim under the age of thirteen.

Counts V and VI involved acts in 2010 and/or 2011 with a female victim under the age

of thirteen.

       {¶4}. Appellant originally entered pleas of not guilty to the charges in the

indictment. However, on November 21, 2014, appellant appeared with counsel and

entered a plea of no contest to an amended rape charge (Count I), making the offense a

felony of the first degree with no life specification, R.C. 2907.02(A)(2). Appellant further

entered pleas of no contest to the remaining five counts (all GSI).

       {¶5}. Appellant was thereupon sentenced to a total term of fourteen years in

prison.

       {¶6}. On December 22, 2014, appellant filed a notice of appeal. He herein

raises the following two Assignments of Error:
Licking County, Case No. 14 CA 112                                                       3


       {¶7}. “I.        THE   TRIAL   COURT    COMMITTED        HARMFUL      ERROR      IN

ACCEPTING THE NO CONTEST PLEAS OF THE DEFENDANT-APPELLANT.

       {¶8}. “II.       THE TRIAL COURT COMMITTED HARMFUL ERROR IN

SENTENCING THE DEFENDANT-APPELLANT.”

                                                I.

       {¶9}. In his First Assignment of Error, appellant challenges the trial court's

acceptance of his pleas of no contest to the five counts of gross sexual imposition.

       {¶10}. Ohio Criminal Rule 11(C) addresses pleas of guilty and no contest in

felony cases. It reads, in pertinent part:

       {¶11}. “ * * *

       {¶12}. “(2) 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

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
Licking County, Case No. 14 CA 112                                                      4


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}. “ * * * ”

       {¶17}. In regard to the specific constitutional rights referenced in Crim.R.

11(C)(2)(c), supra, the Ohio Supreme Court has held that strict compliance is required

on the part of the trial court. See State v. Veney, 120 Ohio St .3d 176, 897 N.E.2d 621,

2008–Ohio-5200, syllabus. However, appellant herein focuses on whether he was

properly informed of the nature of the penalties for gross sexual imposition, which we

find to be an issue pertaining to Crim.R. 11(C)(2)(a), rather than 11(C)(2)(c). Generally,

in accepting a guilty plea, a trial court must “substantially comply” with Crim.R. 11(C),

which we review based on the totality of the circumstances. See State v. Nero (1990),

56 Ohio St.3d 106, 108, 564 N.E.2d 474; State v. Carter (1979), 60 Ohio St.2d 34, 38,

396 N.E.2d 757. In other words, “[f]or nonconstitutional rights, scrupulous adherence to

Crim.R. 11(C) is not required; the trial court must substantially comply, provided no

prejudicial effect occurs before a guilty plea is accepted.” State v. Osley, Lucas App.No.

L–11–1236, 2013–Ohio–1267, 2013 WL 1289527, ¶ 17, citing State v. Stewart (1977),

51 Ohio St.2d 86, 364 N.E.2d 1163. Specifically, a trial court must only substantially

comply with Crim.R. 11(C) when notifying a defendant of the maximum penalty for the

charged offense, as that right to notification has been recognized as a non-constitutional

right. See State v. Gosnell, 2nd Dist. Montgomery No. 24213, 2011-Ohio-4288, ¶ 11.

       {¶18}. In the case sub judice, appellant essentially asserts the trial court

misinformed him concerning the mandatory nature of his sentence, particularly in light of
Licking County, Case No. 14 CA 112                                                        5

the Ohio Supreme Court's recent decision in State v. Bevly, 142 Ohio St.3d 41, 27

N.E.3d 516, 2015-Ohio-475. Bevly reviewed R.C. 2907.05(C)(2), which establishes that

a violation of R.C. 2907.05(A)(4) (gross sexual imposition) is a third-degree felony for

which there is a presumption that a prison term be imposed. Pursuant to R.C.

2907.05(C)(2)(a), a trial court is required to impose a mandatory prison term for GSI

when “[e]vidence other than the testimony of the victim was admitted in the case

corroborating the violation.” The General Assembly thus intended that greater

punishment is to be imposed on offenders based on the State's ability to produce

additional evidence to corroborate the crime. However, the Ohio Supreme Court

recently held that because there is no rational basis for the aforesaid provision in R.C.

2907.05(C)(2)(a), the statute violates the due process protections of the Fifth and

Fourteenth Amendments to the United States Constitution. See State v. Bevly, 142 Ohio

St.3d 41, 27 N.E.3d 516, 2015-Ohio-475, paragraph one of the syllabus.

      {¶19}. A new interpretation of a rule or statute by the Ohio Supreme Court is

generally applied to cases that are pending at the time of announcement, although it is

not applied to cases that have already completed the direct appeal process. See State

v. Loyer, 5th Dist. Stark No. 2009-CA-00312, 2010-Ohio-1181, ¶ 7, citing State v. Evans

(1972), 32 Ohio St.2d 185, 291 N.E.2d 466. In the case sub judice, there is no dispute

that the present appeal was pending in this Court on February 11, 2015, the date of the

Bevly decision.

      {¶20}. At the plea hearing in this matter, the trial court was notified that the State

had available a DVD of appellant's interviews with law enforcement officials, which the

State tendered as corroborating evidence of appellant's crimes. See Tr. at 3-4. The
Licking County, Case No. 14 CA 112                                                         6


court then asked defense counsel if appellant had any objection to the State offering the

"statements of corroboration," to which defense counsel answered in the negative. Tr. at

4. The following exchange between the court and appellant took place shortly

thereafter:

       {¶21}. "Q. Each of the remaining charges is for Gross Sexual Imposition. Those

charges are all felonies of the third degree and carry maximum prison sentences of up

to five years each, and each of those counts also carries a minimum mandatory prison

term of one year. Do you understand that?

       {¶22}. "A. Yes, sir."

       {¶23}. Tr. at 10.

       {¶24}. Appellant also undisputedly signed written plea forms, although appellant

maintains these forms "share the same defect as the verbal exchange with the

defendant." Appellant's Brief at 7. Appellant also maintains the trial court added to its

incorrect recitation of the GSI penalties by failing to inform him, per Bevly, that the facts

related to the corroboration of claims for purposes of R.C. 2907.05(C)(2)(a) must be

decided by a jury. See Bevly at ¶ 27.

       {¶25}. Nonetheless, it is well-established that "an appellant who challenges his

plea on the basis that it was not knowingly and voluntarily made must show a prejudicial

effect." State v. Houston, 4th Dist. Scioto No. 12CA3472, 2014-Ohio-2827, ¶ 8

(additional citations omitted). Specifically, a defendant who enters a plea believing he

or she faces a mandatory sentence when such sentence cannot actually be imposed

generally will not meet the prejudice requirement to invalidate an otherwise knowing,
Licking County, Case No. 14 CA 112                                                     7

voluntary, and intelligent plea. See State v. Younker, 2nd Dist. Montgomery No. 26414,

2015-Ohio-2066, ¶ 25 - ¶ 27.

        {¶26}. Accordingly, upon review, even if the trial court failed to substantially

comply with the pertinent aspects of Crim.R. 11(C)(2)(a) in light of Bevly, under the

circumstances presented we find no prejudicial error warranting reversal and vacation of

appellant's no contest pleas.

        {¶27}. Appellant's First Assignment of Error is therefore overruled.

                                                  II.

        {¶28}. In his Second Assignment of Error, appellant contends the trial court

erroneously imposed mandatory sentences for gross sexual imposition. We agree in

part.

        {¶29}. As we stated in our analysis of appellant's First Assignment of Error, the

Ohio Supreme Court recently held that because there is no rational basis for the

mandatory sentence differentiation found in R.C. 2907.05(C)(2)(a), the statute violates

the due process protections of the Fifth and Fourteenth Amendments to the United

States Constitution. See State v. Bevly, supra.

        {¶30}. The State herein concedes that this matter should be remanded for

resentencing in light of Bevly. See, e.g., State v. Richardson, 12th Dist. Clermont Nos.

CA2014–03–023, CA2014–06–044, CA2014–06–045, 2015-Ohio-824, ¶ 105.

        {¶31}. Therefore, appellant's Second Assignment of Error is sustained to the

extent that the matter will be remanded for a new sentencing hearing limited to applying

the holding of Bevly to the GSI verdicts.
Licking County, Case No. 14 CA 112                                                   8


      {¶32}. For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Licking County, Ohio, is hereby affirmed in part, reversed in part,

and remanded for further proceedings consistent herewith.



By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.


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