[Cite as State v. Stephen, 2020-Ohio-2745.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2019-CA-50
                                                    :
 v.                                                 :   Trial Court Case No. 2019-CR-307
                                                    :
 CRYSTAL D. STEPHEN                                 :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                               Rendered on the 1st day of May, 2020.

                                               ...........

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington
Court House, Ohio 43160
      Attorney for Defendant-Appellant

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




HALL, J.
                                                                                        -2-




      {¶ 1} Crystal D. Stephen appeals from her conviction and sentence following a no-

contest plea to two counts of fourth-degree-felony vehicular assault.

      {¶ 2} Stephen’s appointed appellate counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence

of any non-frivolous issues for appellate review. Counsel did identify one potential issue

regarding the trial court’s compliance with Crim.R. 11 during Stephen’s plea hearing.

Counsel has concluded, however, that the issue lacks arguable merit. We notified

Stephen of counsel’s Anders filing and granted her 60 days to file a pro se brief. The time

for doing so has expired, and no pro se brief has been filed.

      {¶ 3} The record reflects that Stephen was charged by bill of information with two

counts of vehicular assault and one count of misdemeanor operating a vehicle under the

influence (OVI) on May 15, 2019. The charges involved Stephen crashing her car while

intoxicated and injuring several people, including two passengers in her car, one of whom

was left paralyzed.1 She entered a no-contest plea to the charges during a May 20, 2019

plea hearing. (May 20, 2019 Plea Tr. 5) The trial court accepted the plea and made a

finding of guilt. (Order Accepting Plea, May 20, 2019.) The case proceeded to a July 17,

2019 sentencing hearing. At the conclusion of the hearing, the trial court sentenced



1 Stephen originally was charged with aggravated vehicular assault under two prior trial
court case numbers. Those cases were dismissed without prejudice, and Stephen was
charged by information with two counts vehicular assault and one count of OVI in the
above-captioned trial court case, Greene C.P. No. 2019-CR-307. Although Stephen’s
notice of appeal listed all three trial court case numbers, we dismissed the appeal on
December 5, 2019 insofar as it arose from the two dismissed trial court cases. Thus, the
scope of the present appeal is limited to trial court Case No. 2019-CR-307. (See Decision
and Entry, Dec. 5, 2019.)
                                                                                             -3-


Stephen to concurrent 18-month prison terms for the vehicular assaults. It imposed no

sentence for the OVI, finding it to be an allied offense of similar import. The trial court also

suspended Stephen’s driver’s license for five years and imposed up to three years of

discretionary post-release control. (July 17, 2019 Disp. Tr. 42.) This appeal followed.

       {¶ 4} The issue raised in counsel’s Anders brief concerns the adequacy of

Stephen’s plea hearing. Counsel questions whether the trial court assured that Stephen

understood the effect of her no-contest plea as required by Crim.R. 11. After examining

the plea-hearing transcript, however, counsel makes no specific argument and concludes

that “the trial court was in full compliance with all applicable rules and statutes in accepting

the plea and imposing the given sentence.” (Anders brief at 11.)

       {¶ 5} This court recently summarized the standards governing Crim.R. 11

notifications as follows:

              Due process mandates that a guilty plea be knowing, intelligent, and

       voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274

       (1969); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

       462, ¶ 25. Compliance with Crim.R. 11(C) ensures that a plea meets this

       constitutional mandate. State v. Cole, 2d Dist. Montgomery No. 26122,

       2015-Ohio-3793, ¶ 12. Strict compliance with the Crim.R. 11(C)(2)(c)

       constitutional advisements is necessary to establish that a plea is consistent

       with due process. State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132,

       124 N.E.3d 766, ¶ 11, citing State v. Veney, 120 Ohio St.3d 176, 2008-

       Ohio-5200, 897 N.E.2d 261, ¶ 18. But substantial compliance with the

       Crim.R. 11(C)(2)(a) and (b) non-constitutional plea requirement is sufficient
                                                                                              -4-


       to meet the due process requirement. Substantial compliance exists when

       the “totality of circumstances” permit the conclusion that the defendant

       “subjectively understands” the non-constitutional plea requirements. Clark

       at ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

       (1990). If, however, the trial court's compliance with the Crim.R. 11(C) non-

       constitutional requirements is only partial, an appellate court must

       undertake a prejudice analysis, with prejudice, in this context, being gauged

       by whether the defendant would otherwise have entered the plea. Bishop

       at ¶ 19, quoting Clark at ¶ 32, quoting State v. Sarkozy, 117 Ohio St.3d 86,

       2008-Ohio-509, 88 N.E.2d 1224, ¶ 22. If prejudice is not found, the plea will

       not be vacated. Id. Finally, if the trial court's Crim.R. 11(C)(2)(a) or (b) failure

       is complete, prejudice is presumed and the plea must be vacated. Id.

State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5.

       {¶ 6} On April 14, 2020, the Ohio Supreme Court released State v. Miller, Ohio

Slip Opinion No. 2020-Ohio-1420, __ N.E.3d __. Therein the court reaffirmed that a trial

court must strictly comply with informing the defendant, and determining that he

understands, that he is “waiving” each of the constitutional rights enumerated in Crim.R.

11(C)(2)(c). However, Miller explained that verbatim recitation of the words in the

subsection of the rule, particularly with respect to the term “waiving,” is not required. “We

accordingly hold that a trial court strictly complies with Crim.R. 11(C)(2)(c) when in its

plea colloquy with the defendant, it advises the defendant in a manner reasonably

intelligible to the defendant that the plea waives the rights enumerated in the rule.” Id. at

¶ 19. “Common sense tells us that the trial judge’s use of easily understood words
                                                                                           -5-


conveyed to Miller that he would be waiving certain constitutional rights.” Id. at ¶ 21.

       {¶ 7} With the foregoing standards in mind, we conclude that any argument about

the trial court’s compliance with Crim.R. 11 is wholly frivolous. The trial court strictly

complied with the constitutional requirements of Crim.R. 11(C)(2)(c). It advised Stephen

and assured her understanding that she was waiving her rights to jury trial, to confront

witnesses against her, to have compulsory process for obtaining witnesses in her favor,

and to require the State to prove her guilt beyond a reasonable doubt at a trial at which

she could not be compelled to testify against herself. (Plea Tr. at 14-15.) The trial court

also complied with Crim.R. 11(C)(2)(a) by determining that Stephen was making her plea

voluntarily, with understanding of the nature of the charges and of the maximum penalty

involved. (Id. at 9-28.) With regard to the potential penalty, the trial court spelled out the

maximum penalty for the vehicular assault charges. (Id. at 17.). Although we do not see

where the trial court identified the maximum penalty for misdemeanor OVI, it did correctly

advise Stephen that she would not be sentenced for OVI, as it was an allied offense of

similar import. (Id. at 17, 25.) Under these circumstances, we see at least substantial

compliance with Crim.R. 11(C)(2)(a). The trial court also fully complied with Crim.R.

11(C)(2)(b) by advising Stephen of, and determining her understanding of, the effect of

her plea and the fact that the court, upon acceptance of the plea, could proceed with

judgment and sentence. (Id. at 14-23, 28.) Based on our review of the plea-hearing

transcript, we agree with counsel’s assessment that no non-frivolous issue exists with

regard to Crim.R. 11.

       {¶ 8} Finally, in satisfaction of our responsibilities under Anders, we independently

have examined the record to determine whether the present appeal is wholly frivolous.
                                                                                            -6-


Our review encompasses the trial court’s entire docket, including its judgment entry, as

well as the plea and sentencing transcripts and a presentence investigation report. We

note that the trial court’s judgment entry initially stated, incorrectly, that Stephen had been

convicted upon a “plea of guilty.” (July 18, 2019 Judgment Entry.) The trial court

subsequently corrected the record through an amended judgment entry, making clear that

Stephen had been convicted by the trial court after a no-contest plea. (July 26, 2019

Amended Judgment Entry.) We also specifically have reviewed and considered the

propriety of Stephen’s aggregate 18-month prison sentence and her five-year driver’s

license suspension. The record reflects that the trial court fully and accurately addressed

both issues, and we see no non-frivolous grounds for challenging Stephen’s sentence, or

any other issue, on appeal.

       {¶ 9} Having found no non-frivolous issues for appellate review, we hereby grant

Stephen’s counsel’s request to withdraw from further representation. The judgment of the

Greene County Common Pleas Court is affirmed.

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



TUCKER, P.J. and FROELICH, J., concur.


Copies sent to:

Marcy A. Vonderwell
Steven H. Eckstein
Crystal D. Stephen
Hon. Stephen Wolaver
