[Cite as State v. Kinstle, 2019-Ohio-4478.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 28264
                                                   :
 v.                                                :   Trial Court Case No. 2018-CR-683
                                                   :
 STEVEN KINSTLE                                    :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                              OPINION

                           Rendered on the 1st day of November, 2019.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327
     Attorney for Defendant-Appellant

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




TUCKER, J.
                                                                                         -2-




       {¶ 1} Appellant, Steven Kinstle, entered a guilty plea to aggravated possession of

drugs (methamphetamine), a third degree felony, and he was sentenced to serve a 30-

month prison term. After his appointed appellate counsel filed a brief under the authority

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

a pro se brief. Kinstle’s pro se assignments of error, with two exceptions, were waived

by virtue of his guilty plea. The two exceptions (counsel promised him that he would be

sentenced to community control sanctions (CCS) and the trial court did not inform him of

the State’s obligation to prove his guilt beyond a reasonable doubt), if accurate, could

have affected the knowing, intelligent, and voluntary nature of the guilty plea, but neither

contention is supported by the record. Thus, the trial court’s judgment will be affirmed.



                             Facts and Procedural History

       {¶ 2} As noted, Kinstle was indicted for aggravated possession of drugs

(methamphetamine), a third degree felony. Kinstle ultimately entered a guilty plea to the

charge.    There was no agreement regarding his sentence, but a presentence

investigation was conducted.       Kinstle did not appear for the scheduled sentencing

hearing, and, as a result, an arrest warrant was issued. Several months later, Kinstle

was arrested on the warrant, and a sentencing hearing was conducted. The trial court

sentenced Kinstle to a 30-month prison term. This appeal followed.

       {¶ 3} Kinstle’s appointed counsel filed an Anders brief stating that she could not

find any potentially meritorious issues for appellate review. In his pro se brief, Kinstle

raises six assignments of error.
                                                                                -3-




                                  Analysis

{¶ 4} Kinstle’s assignments of error are set forth as follows:

DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL

       Trial counsel was ineffective for failure to provide Defendant-

Appellant with discovery after he was indicted, fail[ure] to suppress the

evidence after it was discovered that the evidence does not exist, and

mislead[ing] Defendant-Appellant into entering a guilty plea of the promise

of probation, which deprived Defendant-Appellant right to effective

assistance of counsel and due process.

DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS

WHEN THE STATE FAILED TO PROPERLY SERVE HIM WITH THE

INDICTMENT

       Defendant-Appellant was denied his rights under the 6th & 14th

Amend[ments] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §

10 when the State failed to properly serve him the indictment before being

arraigned on the charge. Defendant-Appellant has never been served an

indictment.

DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS

BY    THE     STATE’S     UNJUSTIFIABLE         DELAY     BETWEEN        THE

COMMISSION OF THE OFFENSE AND THE INDICTMENT

       Defendant-Appellant[’s]    rights   to   due   process    under   Ohio
                                                                                -4-


Const[itution] art[icle] I § 16 and the Fifth and Fourteenth Amend[ments] to

the U.S. Const[itution] were violated by the State’s unjustifiable delay

between the commission of the offense and Defendant-Appellant’s

indictment, which results in actual prejudice to the Defendant-Appellant.

DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS

WHEN THE STATE FAILED TO ANSWER DISCOVERY REQUEST

      Defendant-Appellant[’s]    rights   to   due   process   under    Ohio

Const[itution] art[icle] I § 10 and the 6th & 14th Amend[ments] to the U.S.

Const[itution] when the State failed to answer counsel’s request for

discovery before Defendant-Appellant entered a plea of guilty, which

severally (sic) prejudiced him from knowing what evidence the State had

against him.

DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS

BY THE STATE USING SHAM LEGAL PROCESS TO INDICT

      Defendant-Appellant was denied his rights under the 5th & 14th

Amend[ments] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §

10 when the State failed to apply the proper procedure when indicting the

Defendant-Appellant by not having the jury foreman or the prosecutor

signed (sic) the indictment, which denied Defendant-Appellant of due

process.

DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS

BY THE TRIAL JUDGE FAILING TO ADVISE HIM AT SENENCING THAT

THE STATE WOULD HAVE TO PROVE THE ELEMENTS OF THE
                                                                                           -5-


       OFFENSE BEYOND A REASONABLE DOUBT WHICH RENDERS THE

       PLEA NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY

              Defendant-Appellant was denied his rights under the 14th

       Amend[ment] to the U.S. Const[itution] and Ohio Const[itution] art[icle] I §

       10 when the trial court judge violated Crim.R. 11 by failing to advise

       Defendant-Appellant that the State would have to prove each element of

       the offense, renders the guilty plea invalid.

       {¶ 5} A guilty plea is a complete admission of guilt. State v. Felton, 2d Dist.

Montgomery No. 27239, 2017-Ohio-761.            “Consequently, a guilty plea waives all

appealable errors that may have occurred in the trial court, unless such error precluded

the defendant from knowingly, intelligently, and voluntarily entering his guilty plea * * *.”

Id. at ¶ 15, citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph

two of the syllabus; State v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423,

¶ 3.

       {¶ 6} With this in mind, we conclude that assignments of error two, three, four, and

five raise issues which were waived by virtue of Kinstle’s guilty plea to the indicted charge.

These assignments of error are, as such, overruled.

       {¶ 7} Kinstle’s first assignment of error asserts that he was denied the effective

assistance of trial counsel because counsel did not provide discovery to him, because

counsel did not file a suppression motion, and because counsel misled him “into entering

a guilty plea [based upon a] promise of [CCS] * * *.” The first two assertions do not relate

to Kinstle’s guilty plea, and, thus, are waived. If, as asserted, counsel informed Kinstle

that he would be sentenced to a term of CCS, this, arguably, could have affected the
                                                                                         -6-


knowing, intelligent, and voluntary nature of the guilty plea. However, there is nothing in

the appellate record to support this assertion, and, in fact, the Crim.R. 11 colloquy

suggests otherwise.     In any event, upon the record before us, there is no merit to

Kinstle’s assertion that trial counsel promised him that he would be sentenced to a term

of CCS. Based upon this and the waiver of the remaining ineffective assistance claims,

Kinstle’s first assignment of error is overruled.

       {¶ 8} Kinstle’s sixth assignment of error asserts that the trial court did not inform

him that the State had the burden to prove each element of the offense beyond a

reasonable doubt, in violation of Crim.R. 11. Under Crim.R. 11(C)(2)(c), a trial court

must inform a defendant that the State must prove his guilt beyond a reasonable doubt.

This, of course, is a constitutional right a defendant waives by entering a guilty plea.

Since a constitutional right is involved, a trial court must strictly comply with the proof

beyond a reasonable doubt notification requirement. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 21; State v. Bishop, 156 Ohio St.3d 156, 2018-

Ohio-5132, 124 N.E.3d 766, ¶ 11. At the plea hearing, Kinstle was informed of the

elements of aggravated possession of drugs as a third degree felony, and the trial court

informed him of the State’s burden to prove his guilt beyond a reasonable doubt. The

trial court, in short, strictly complied with the Crim.R. 11(C)(2)(c) requirement to inform

the defendant that the State must prove his guilt beyond a reasonable doubt. Kinstle’s

sixth assignment of error is overruled.

       {¶ 9} Finally, since an Anders brief was filed, we have reviewed the entire record.

This review has not revealed any potentially meritorious appellate issues regarding

Kinstle’s plea, sentence, or any other matter.
                                                                               -7-




                                  Conclusion

      {¶ 10} The judgment of the Montgomery County Common Plea Court is affirmed.



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



WELBAUM, P.J. and DONOVAN, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Kirsten Knight
Steven Kinstle
Hon. Mary Katherine Huffman
