[Cite as State v. Dyer, 2019-Ohio-1558.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                   Court of Appeals No. L-17-1258

        Appellee                                Trial Court No. CR0201702122

v.

Jesse E. Dyer, Jr.                              DECISION AND JUDGMENT

        Appellant                               Decided: April 26, 2019

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Clayton M. Gerbitz, for appellant.

                                           *****

        SINGER, J.

        {¶ 1} Appellant, Jesse E. Dyer, Jr., appeals from the September 28, 2017 judgment

of the Lucas County Court of Common Pleas convicting him of two counts of rape, a

violation of R.C. 2907.02(A)(2) and (B) following acceptance of his guilty plea pursuant

to North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The
court sentenced appellant to two eight-year mandatory terms of imprisonment, to be

served consecutively. For the reasons which follow, we affirm.

       {¶ 2} On June 30, 2017, appellant was indicted on two counts of rape of a person

under the age of 13, in violation of R.C. 2907.02(A)(1)(b) and (B). Each count included

a special finding that the victim was under the age of 10. On September 27, 2017, two

additional counts were added by an information charging appellant with two counts of

rape by force or threat of force, in violation of R.C. 2907.02(A)(2) and (B). R.C.

2907.02(A)(2), effective Jan. 1, 2008, provided: “No person shall engage in sexual

conduct with another when the offender purposely compels the other person to submit by

force or threat of force.”

       {¶ 3} On September 28, 2017, pursuant to a plea agreement, appellant entered an

“Alford” guilty plea to counts 3 and 4 and was convicted of the offenses charged in the

information. Appellant appeals and asserts the following assignments of error.

              I. APPELLANT’S PLEAS WERE NOT VOLUNTARILY AND

       INTELIGENTLY [SIC] MADE.

              II. THE JUDGMENT ENTRY OF SENTENCE IMPOSING

       MANDATORY PRISON TIME WAS ERRONIOUS.

       {¶ 4} In his first assignment of error, appellant challenges that the trial court

should not have accepted his “Alford” guilty plea because it was not voluntarily and

intelligently made.

       {¶ 5} A guilty or no contest plea must be made knowingly, intelligently, and

voluntarily to be valid under both the United States and Ohio Constitutions. Boykin v.

2.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio

St.3d 525, 527, 660 N.E.2d 450 (1996).

       {¶ 6} Fed.R.Crim.P. 11(b)(3) requires that the trial court determine where there is

a factual basis for a guilty plea before accepting it, whether a guilty plea or an “Alford ”

guilty plea is given. United States v. Tunning, 69 F.3d 107, 111 (6th Cir.1995). Federal

courts have held that this requirement does not require a trial-like inquiry into the facts,

United States v. Morrow, 914 F.2d 608, 611 (4th Cir.1990), and the trial court has the

discretion to determine whether it has a sufficient factual basis to assess the rationality in

making a guilty plea. Id.; United States v. Riascos-Suarez, 73 F.3d 616, 622 (6th

Cir.1996), superseded by statute on other grounds as stated in United States v. Cooper,

E.D.Mich. No. 08-20464, 2012 U.S. Dist. LEXIS 498, *25 (Jan. 4, 2012).

       {¶ 7} Under Ohio Crim.R. 11, however, when a defendant enters a plea of guilty

or no contest, the plea “is an admission of the facts alleged in the indictment, information,

or complaint” and the trial court does not have an obligation under Crim.R. 11 to

determine whether there was a factual basis for the plea. Crim.R. 11(B)(2); State v. Post,

32 Ohio St.3d 380, 386-387, 513 N.E.2d 754 (1987), overruled in part on other grounds

by State v. McDermott, 72 Ohio St.3d 570, 574, 651 N.E.2d 985 (1995); State v. Bilicic,

11th Dist. Ashtabula No. 2017-A-0066, 2018-Ohio-5377, ¶ 8; State v. Battigaglia, 6th

Dist. Ottawa Nos. OT-09-009, OT-09-010, 2010-Ohio-802, ¶ 24; State v. Rice, 6th Dist.

Lucas No. L-06-1343, 2007-Ohio-6529, ¶ 25-26.

       {¶ 8} Nonetheless, because an Alford guilty plea is a waiver of a right to trial and

consent to the conviction of guilty with a protestation of innocence, Alford, 400 U.S. at

3.
37, 91 S.Ct. 160, 27 L.Ed.2d 162, we have held that further inquiry into the factual basis

for the charges is necessary when an Alford guilty plea is entered and the defendant raises

on appeal the issue of whether his plea is constitutionally valid. State v. Drzayich, 2016-

Ohio-1398, 62 N.E.3d 850, ¶ 13 (6th Dist.); State v. Bryant, 6th Dist. Lucas No. L-03-

1359, 2005-Ohio-3352, ¶ 9; State v. Nicely, 6th Dist. Fulton No. F-99-014, 2000 Ohio

App. LEXIS 2883, *4 (June 30, 2000). To determine if the plea is constitutionally valid

(i.e., it was knowingly, intelligently and voluntarily made), the trial court must conduct a

specific colloquy with the defendant and consider the factual record to determine if there

is strong factual evidence of guilt and the plea was a rational decision. Alford at 38;

Bryant, supra, citing Nicely, supra, and State v. Padgett, 67 Ohio App.3d 332, 338, 586

N.E.2d 1194 (2d Dist.1990). See also Post at 386-387 (discussing application of the

above-mentioned dicta in Alford, to a guilty plea which included some protestations of

innocence).

        {¶ 9} Other appellate courts have also required, based on the language in Alford,

that the “basic factual framework for the charge and plea” must be presented at the

hearing so the trial court can determine if the plea was voluntarily, knowingly, and

intelligently made. State v. Gibson, 7th Dist. Mahoning No. 17 MA 0029, 2018-Ohio-

4725, ¶ 8; State v. Underwood, 5th Dist. Muskingum No. CT2017-0024, 2018-Ohio-730,

¶ 18.

        {¶ 10} In presenting the basic factual framework for the charge and plea, the

recitation of the facts by the state need not include every significant fact supporting the

charges where such information is otherwise included in the record. See Drzayich, 2016-

4.
Ohio-1398, 62 N.E.3d 850, at ¶ 15-16 (the trial court sufficiently evaluated the plea when

one relevant fact was included only in the indictment and information); State v. Remines,

9th Dist. Lorain No. 97CA006700, 1998 Ohio App. LEXIS 696, *7 (Feb. 25, 1998) (trial

court properly relied upon the bill of particulars to assess the basic facts supporting the

charges).

       {¶ 11} At the plea hearing in the case before us, the prosecution set forth the

factual basis for the plea as follows:

              Jesse Dyer, on or between the 23rd day of November, 2016 and the

       31st day of December, 2016, did knowingly have sexual conduct with

       another when the offender purposely compelled the other person to commit

       by force or threat of force, in violation of 2907.02(A)(2) and (B), rape,

       being a felony of the 1st degree.

              The State would have shown beyond a reasonable doubt two

       separate and distinct acts of sexual conduct. Specifically, * * * through the

       testimony of the child victim with the initials AS, that Jesse Dyer was her

       mother’s boyfriend and was an authority figure to her. The child would

       have testified that Jesse Dyer penetrated her butt and her mouth with his

       penis on 2 separate occasions.”

       {¶ 12} Appellant argues the prosecution did not assert that any subtle or slight

force was involved. He contends that even in the case of an authority figure, there must

be some subtle, slight, psychological, or emotionally powerful force involved.



5.
       {¶ 13} We agree that to establish a conviction for rape under R.C. 2907.02(A), the

prosecution must establish that at a least minimal force or threat of force was used in the

commission of the offense. State v. Dye, 82 Ohio St.3d 323, 328, 695 N.E.2d 763 (1998).

However, evidence of force can be implied from evidence of the “age, size, and strength

of the parties and their relation to each other.” Id. In this case, the prosecution met this

burden by asserting the child victim would testify how she was assaulted by appellant

who was an authority figure to the child. Furthermore, while appellant pled to counts 3

and 4, which do not require that the victim be a child of a certain age, the indictment

alleged the child victim was under 10 years of age.

       {¶ 14} Therefore, we find there was sufficient factual information for the trial

court to determine there was a strong factual basis for the charges and the plea was

rationally made and, therefore, was constitutionally valid. Therefore, we find appellant’s

first assignment of error not well-taken.

       {¶ 15} In his second assignment of error, appellant argues that the trial court erred

as a matter of law by failing to inform him that his prison term would be mandatory as

required by R.C. 2929.19(B)(2)(a).

       {¶ 16} The record reflects the court informed appellant prior to the entry of a plea

that all of the sentences for the offenses to which he was entering an Alford plea

“required mandatory prison terms” and appellant acknowledged he understood. The

written plea agreement also included notice that the offense of rape alleged in both counts

carried a mandatory prison term of 3-11 years. However, later in the hearing when the



6.
court imposed the sentences for each conviction, the court did not indicate that the prison

terms imposed were mandatory. The trial court did include in its sentencing entry that

the prison terms were mandatory.

       {¶ 17} R.C. 2929.19(B)(7) provides that the failure to notify the defendant that the

sentence was mandatory does not affect the validity of the sentence. State v. Vancleve,

12th Dist. Clermont No. CA2016-06-039, 2016-Ohio-7546, ¶ 18. Therefore, we find

appellant’s second assignment of error not well-taken.

       {¶ 18} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowsk, J.                        _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.

7.
