[Cite as State v. Lauth, 2013-Ohio-3478.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2012-T-0067
        - vs -                                  :

WILLIAM J. LAUTH,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2010
CR 00824.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Jay Blackstone, Summit Professional Center, 6600 Summit Drive, Canfield, OH 44406
(For Defendant-Appellant).



DIANE V. GRENDELL, J.

     {¶1}        Defendant-appellant, William J. Lauth, appeals his conviction and

sentence for three counts of Rape, following the entry of a guilty plea, in the Trumbull

County Court of Common Pleas. The issues before this court are whether the failure,

during the plea colloquy, to advise a defendant that the court could proceed immediately

to sentencing and that he would not be eligible for probation/community control
sanctions renders the plea invalid; whether the failure to ask defense counsel at

sentencing if counsel wished to address the court constitutes reversible error; and

whether a plea is rendered invalid by defense counsel’s failure to file a motion to

suppress. For the following reasons, we affirm the decision of the court below.

    {¶2}      On November 23, 2010, the Trumbull County Grand Jury issued an

Indictment charging Lauth with three counts of Rape, felonies of the first degree in

violation of R.C. 2907.02(A)(2) and (B); three counts of Rape, felonies of the first degree

in violation of R.C. 2907.02(A)(1)(c) and (B); and three counts of Sexual Battery,

felonies of the third degree in violation of R.C. 2907.03(A)(5) and (B).

    {¶3}      On June 20, 2011, a change of plea hearing was held.              The State

provided the following factual basis for the charges:

    {¶4}      Specifically, the State would have shown that on August 28th, 2010 at

              1905 Southern Boulevard, Apartment 67, in Warren City, Trumbull County,

              Ohio, the defendant committed three counts of rape, all felonies of the first

              degree. Specifically, the State would have shown that defendant engaged

              in three separate acts of sexual conduct, oral sex, digital penetration, and

              vaginal intercourse, with a minor female, age sixteen, date of birth 9-3-93,

              by compelling her to submit by force or threat of force. The defendant was

              an authority figure to the victim.

    {¶5}      The State would have offered the testimony of the victim, as well as

              Detective Currington from the Warren Police Department, employees of

              Children Services, and Dr. McPherson from the Child Advocacy Center




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              and would have offered into the evidence the victim’s medical records, as

              well as the defendant’s recorded confessions.

    {¶6}      Lauth pled guilty to the first three counts of the Indictment, and the State

moved to nolle the remaining counts.

    {¶7}      On August 3, 2011, a sentencing hearing was held. Lauth addressed the

court as follows: “Ain’t much I can say is that I feel bad for what I did and I couldn’t live

with it. That’s why I turned myself in. I just hope that she gets better and don’t have to

live with it for very much.”

    {¶8}      The trial court sentenced Lauth to serve concurrent ten-year terms of

imprisonment for each count of Rape, for an aggregate prison term of ten years. The

court advised Lauth that he will be required to register as a Tier III sex offender and

subject to postrelease control upon his release from prison.

    {¶9}      On August 14, 2012, Lauth filed a Motion for Leave to File Delayed

Appeal.

    {¶10}     On November 28, 2012, Lauth was granted leave and appellate counsel

was appointed to represent Lauth in the prosecution of the appeal.

    {¶11}     On February 1, 2013, appointed counsel filed a Motion to Withdraw under

Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (allowing

counsel to withdraw “if counsel finds his case to be wholly frivolous”).          Appointed

counsel identified two possible assignments of error:

    {¶12}     “[1.] The trial court committed prejudicial error in accepting the Defendant-

Appellant’s plea of guilty to three counts of Rape under R.C. 2907.02(A)(2) & (B).”




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    {¶13}     “[2.] The trial court committed prejudicial error in sentencing the Defendant

to ten years in the penitentiary.”

    {¶14}     On May 22, 2013, Lauth raised an additional assignment of error:

    {¶15}     “[3.] The appellant was denied effective assistance from defense counsel’s

failure to file a motion to suppress.”

    {¶16}     In the first assignment of error, Lauth contends that the trial court failed to

determine that he was making his plea knowingly, intelligently, and voluntarily, by not

fully complying with the requirements of Criminal Rule 11.

    {¶17}     The Ohio Rules of Criminal Procedure mandate that “the court * * * shall

not accept a plea of guilty or no contest without first addressing the defendant

personally and * * * [d]etermining that the defendant is making the plea voluntarily, with

understanding * * * that the defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing” and “[i]nforming the defendant *

* * that the court, upon acceptance of the plea, may proceed with judgment and

sentence.” Crim.R. 11(C)(2)(a) and (b); State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621, ¶ 13 (“[b]efore accepting a guilty or no-contest plea, the

court must make the determinations and give the warnings required by Crim.R.

11(C)(2)(a) and (b)”).

    {¶18}     The trial court’s compliance with the “nonconstitutional” notifications

required by Criminal Rule 11(C)(2)(a) and (C)(2)(b) is reviewed under a substantial

compliance standard. Veney at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86, 93, 364

N.E.2d 1163 (1977).      “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and




                                             4
the rights he is waiving. * * * Furthermore, a defendant who challenges his guilty plea

on the basis that it was not knowingly, intelligently, and voluntarily made must show a

prejudicial effect. * * * The test is whether the plea would have otherwise been made.”

(Citations omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

    {¶19}     In the present case, the trial court did not expressly advise Lauth at the

change of plea hearing that he was ineligible for probation but, rather, advised him that

“[a] prison term is presumed necessary and it is mandatory in this case.” The court also

failed to advise Lauth that it could proceed to sentencing upon acceptance of the plea.

Instead, the court ordered a presentence investigation report and held the sentencing

hearing six weeks after acceptance of the plea. Lauth’s written plea (Finding on Guilty

Plea to the Amended Indictment) stated:

    {¶20}     I have been informed by the Court, and understand, that I am not eligible

       for probation or community control sanction. * * * I understand * * * that the

       Court, upon acceptance of a plea of guilty, can sentence me immediately after

       accepting my plea and upon completion of my sentencing hearing.

    {¶21}     At the change of plea hearing, Lauth affirmed that he understood the

contents of this document and that he signed it freely and voluntarily.

    {¶22}     This court has rejected the proposition that these circumstances render a

plea invalid. With respect to Lauth’s ineligibility for probation and community control

sanctions, “[i]t is well-established * * * that a trial court substantially complies with the

requirement of Crim.R. 11(C)(2)(a) when the court informs a defendant that a

mandatory prison sentence will be imposed and the defendant subjectively understands

that his sentence must include prison time.” State v. Brown, 11th Dist. No. 2003-G-




                                             5
2504, 2004-Ohio-1843, ¶ 12 (cases cited). Here, the court informed Lauth that prison

time was a necessary and mandatory part of the sentence that would be imposed. With

respect to sentencing, “[t]his court has repeatedly held that ‘[w]hen the trial court does

not proceed immediately with sentencing, * * * a defendant is not prejudiced by the

court’s failure to advise that it could have proceeded immediately with sentencing.”

State v. McKenna, 11th Dist. No. 2009-T-0034, 2009-Ohio-6154, ¶ 72 (cases cited).

See also State v. Young, 11th Dist. No. 2009-T-0130, 2011-Ohio-4018, ¶ 57 (“evidence

from the written plea agreement specifically reviewed by the trial court during the

colloquy only reinforces [the] conclusion that [the defendant’s] plea was knowingly,

intelligently and voluntarily made”).

    {¶23}     The first assignment of error is without merit.

    {¶24}     In the second assignment of error, Lauth argues that the trial court failed

to afford defense counsel the opportunity to speak on his behalf at the sentencing

hearing.

    {¶25}     “At the time of imposing sentence, the court shall * * * [a]fford counsel an

opportunity to speak on behalf of the defendant and address the defendant personally

and ask if he or she wishes to make a statement in his or her own behalf or present any

information in mitigation of punishment.” Crim.R. 32(A)(1).

    {¶26}     Here, the trial court addressed Lauth personally and asked if he had

anything to say before the court pronounced its sentence. The court did not personally

address defense counsel and inquire if counsel wished to make a statement on Lauth’s

behalf.




                                             6
    {¶27}     We reject the contention that Criminal Rule 32(A)(1) requires a trial court

to personally address defense counsel. The plain language of the Rule mandates that

defense counsel be afforded the opportunity to speak on defendant’s behalf. As with

any attorney licensed in Ohio, defense counsel is presumed competent and there is no

need for a court to expressly apprise him of the Rule 32 right of allocution. State v.

Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999) (“in Ohio a properly licensed

attorney is presumably competent”).

    {¶28}     In the present case, defense counsel initiated the sentencing hearing by

calling a bench conference, which has not been described. Following the conference,

the trial court solicited statements from Lauth and the victim and then proceeded to

impose sentence without further comment from either defense counsel or the

prosecutor. The record strongly suggests that defense counsel and the prosecutor

argued their positions regarding Lauth’s sentence during the bench conference.

    {¶29}     The second assignment of error is without merit.

    {¶30}     In the third assignment of error, Lauth argues that trial counsel was

constitutionally ineffective for failing to file or pursue a motion to suppress statements he

made to the police. According to Lauth: “The prosecution’s case against [him] hinged

on statements he made to [the] police[;] without his statement there’s a strong possibility

that the motion would have been granted and the state would not have had evidence to

convict.”

    {¶31}     To demonstrate ineffective assistance of counsel where the defendant has

pled guilty, it must be shown that counsel’s constitutionally deficient performance

prevented the defendant from entering his plea knowingly and voluntarily.           State v.




                                             7
Madeline, 11th Dist. No. 2000-T-0156, 2002 Ohio App. LEXIS 1348, *9-10 (Mar. 22,

2002); State v. Scott, 11th Dist. No. 2011-T-0027, 2011-Ohio-4887, ¶ 27 (recognizing

that a valid guilty plea precludes a defendant from raising claims relating to the

deprivation of constitutional rights that occurred prior to the acceptance of the guilty

plea) (cases cited).

    {¶32}     In the present case, Lauth presents no compelling argument or evidence

that trial counsel was deficient or that the failure to file a motion to suppress statements

he made to the police rendered his plea less than knowing and voluntary. Lauth makes

no argument as to what grounds existed for suppressing his statements to the police.

At the sentencing hearing, Lauth stated that he “turned [him]self in,” indicating his

statements were made voluntarily. In the absence of such evidence, it is impossible to

evaluate the effectiveness of counsel’s performance. State v. Tucholski, 11th Dist. No.

2011-A-0069, 2012-Ohio-5591, ¶ 14 (“in the absence of any indication of what evidence

would have been presented at the suppression hearing, this court is unable to

determine if the motion to suppress had any merit”); State v. Brown, 115 Ohio St.3d 55,

2007-Ohio-4837, 873 N.E.2d 858, ¶ 65 (“[t]o establish ineffective assistance of counsel

for failure to file a motion to suppress, a defendant must prove that there was a basis to

suppress the evidence in question”).

    {¶33}     Additionally, the State’s recitation of the factual basis for the Rape charges

demonstrates that they were supported by the victim’s testimony and medical records,

in addition to Lauth’s statements.

    {¶34}     The third assignment of error is without merit.




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    {¶35}    For the foregoing reasons, Lauth’s conviction and sentence for three

counts of Rape is affirmed. Costs to be taxed against appellant.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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