[Cite as State v. Klinger, 2016-Ohio-3370.]




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


State of Ohio                                     Court of Appeals No. WD-15-057

        Appellee                                  Trial Court No. 2014CR0512

v.

Brian D. Klinger                                  DECISION AND JUDGMENT

        Appellant                                 Decided: June 10, 2016

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, Alyssa M. Blackburn
        and David T. Harold, Assistant Prosecuting Attorneys, for appellee.

        Stephen D. Long, for appellant.

                                              *****


        YARBROUGH, J.

        {¶ 1} This is an Anders appeal. Appellant, Brian Klinger, appeals the judgment of

the Wood County Court of Common Pleas, convicting him of one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4) and (C)(2), a felony of the third degree,

and sentencing him to a thirty-month prison term. For the following reasons, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} On December 4, 2014, appellant was indicted by the Wood County Grand

Jury on one count of gross sexual imposition in violation of R.C. 2907.05(A)(4) and

(C)(2), a felony of the third degree. On June 30, 2015, appellant withdrew his initial plea

of not guilty, and pleaded guilty to the charge as indicted. Prior to accepting the plea, the

court had the following dialogue with appellant:

              THE COURT: In so doing, you’re waiving your right to a jury trial.

       You understand that?

              THE DEFENDANT: Yes.

              THE COURT: In fact, one of the forms you signed is a written

       waiver of that trial. In waiving that trial you’re giving up certain rights that

       I need to explain to you now.

              At that trial the prosecution will have the burden of proving your

       guilt beyond a reasonable doubt to a jury of twelve of your peers who need

       to unanimously find you guilty before you could be convicted.

              You could have testified at that trial, but would not have had to.

       And your attorney * * * could have cross-examined any witnesses called by

       the prosecution. You could have called witnesses on your behalf,

       subpoenaing them if necessary to obtain their attendance at trial.




2.
            In waiving that trial, you’re giving up all these rights. Do you

     understand that?

            THE DEFENDANT: Yes.

            THE COURT: This is a felony, and as such, you face possible

     prison time. If you were sent to prison, you would be subject to what is

     called post-release control, and that would be for a - - be for a period of

     three years.

            If during that three years you violated the parole authority’s rules

     established at the time of your release, you would then be potentially sent

     back to prison for up to and no more than one half of the original prison

     term. You understand that?

            THE DEFENDANT: Yes.

            THE COURT: In lieu of prison, the court could place you on what

     is called community control sanctions and the court could establish certain

     things for you to do, and if you fail to comply with those, then the court

     would sentence you up to thirty-six months in prison. You understand that?

            THE DEFENDANT: Yes.

            THE COURT: There could be financial obligations as a result of

     this as well. You could be required to pay the court costs, fines, or

     restitution. You understand that?

            THE DEFENDANT: Yes.




3.
              THE COURT: Now we’ve gone over these things, do you have any

       questions of either your attorney or the court?

              THE DEFENDANT: No.

              THE COURT: And you still wish to enter your plea of guilty?

              THE DEFENDANT: Yes.

       {¶ 3} Following the colloquy, the court received a statement from the prosecution

of what the evidence would have shown at the trial. The court then accepted the plea and

found appellant guilty. The matter was continued for a presentence investigation report.

At the sentencing hearing, the trial court found that appellant must be classified as a Tier

II sex offender. The court then sentenced appellant to 30 months in prison. The court

also ordered that appellant would be subject to a mandatory period of five years of post-

release control.

       {¶ 4} Appellant has timely appealed his conviction and sentence. Subsequently,

appointed counsel for appellant filed a brief and requested leave to withdraw pursuant to

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

Anders, if counsel, after a conscientious examination of the case, determines it to be

wholly frivolous, counsel should so advise the court and request permission to withdraw.

Id. at 744. This request, however, must be accompanied by a brief identifying anything

in the record that could arguably support the appeal. Id. Counsel must also furnish the

client with a copy of the brief and request to withdraw and allow the client sufficient time

to raise additional matters. Id. Once these requirements have been satisfied, the




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appellate court must then conduct a full examination of the proceedings held below to

determine if the appeal is indeed frivolous. If the appellate court determines that the

appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal

without violating constitutional requirements, or it may proceed to a decision on the

merits if state law so requires. Id.

                                 II. Assignments of Error

       {¶ 5} In his Anders brief, counsel has assigned the following potential errors for

our review:

              1. Appellant’s “guilty” plea was not voluntary, intelligent, and

       knowing.

              2. Automatic classification of Mr. Klinger as a Tier II offender

       violates the constitutions of the United States and the state of Ohio.

       {¶ 6} Appellant has not filed a pro se brief or otherwise raised any additional

matters.

                                       III. Analysis

       {¶ 7} Regarding the first assignment of error, “When a defendant enters a plea in a

criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v.

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In determining whether

appellant’s guilty plea was made knowingly, intelligently, and voluntarily, we must

review the record “to ensure that Crim.R. 11 was followed by the trial court upon

defendant’s submission of the guilty plea.” State v. Spates, 64 Ohio St.3d 269, 272, 595




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N.E.2d 351 (1992). A trial court must substantially comply with the notification of the

non-constitutional rights contained in Crim.R. 11(C)(2)(a) and (b), and a defendant must

show prejudice before a plea will be vacated for failure to substantially comply with

those notifications. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 14, 17. In contrast, the court must strictly comply with the notification of

constitutional rights contained in Crim.R. 11(C)(2)(c), and failure to do so creates a

presumption that the plea was not knowingly, intelligently, and voluntarily made. Id. at ¶

18, 29. Crim.R. 11(C)(2)(c) requires that the defendant be advised of “the rights to jury

trial, to confront witnesses against him or her, to have compulsory process for obtaining

witnesses in the 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.” In determining whether the defendant was fully informed of

his rights, “an alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified

by reference to other portions of the record, including the written plea.” State v. Barker,

129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 25.

       {¶ 8} In support of the first potential assignment of error, counsel first asserts that

the trial court failed to inform appellant that he had a right to have the matter tried to the

bench, stating only that he was waiving his right to a jury trial. However, counsel notes,

and we agree, that any ambiguity in that regard was clarified in paragraph E of the

written “Plea of Guilty to Indictment and Waiver of Trial by Jury” form, in which he

acknowledged that he is giving up his right “to a jury trial or court trial.”




6.
       {¶ 9} Counsel next argues that the trial court failed to advise appellant of the

maximum penalties he was facing by entering his plea. In our review of the record, we

also note that the trial court improperly informed appellant that he would be subject to

three years of post-release control, yet later sentenced him to five years of post-release

control as required by R.C. 2967.28(B)(1). Despite this failure, we hold that the trial

court substantially complied with Crim.R. 11(C)(2)(a)’s requirement to inform appellant

of the maximum penalty involved. Like the above issue, any ambiguity in the Crim.R. 11

colloquy was clarified in the written waiver, which informed appellant of the maximum

penalties involved and that a mandatory five years of post-release control would be

imposed. Thus, appellant had actual notice that he could receive up to 36 months in

prison and a $10,000 fine, and would receive five years of post-release control. See State

v. Reed, 6th Dist. Lucas No. L-06-1130, 2007-Ohio-4087, ¶ 26 (trial court substantially

complied with Crim.R. 11(C)(2)(a) where although the court orally advised the defendant

that he may be subject to five years of post-release control, the written plea form gave

appellant actual notice that post-release control was mandatory).

       {¶ 10} Furthermore, the record does not contain any indication that appellant

would not have entered his plea if he had been so informed. Counsel stated that he had

reviewed the written plea forms with appellant, and appellant signed the forms, and

indicated that after his review he did not have any questions for the court or for his

counsel. Thus, appellant would be unable to demonstrate any prejudice.




7.
         {¶ 11} Accordingly, we find counsel’s first potential assignment of error to be

without merit.

         {¶ 12} In his second potential assignment of error, counsel offers that the

automatic classification of appellant as a Tier II sex offender constitutes cruel and

unusual punishment in violation of the United States and Ohio constitutions. However,

counsel recognizes that the Ohio Supreme Court has recently addressed this issue,

holding that “the registration and address-verification requirements for Tier II offenders

under R.C. Chapter 2950 do not constitute cruel and unusual punishment in violation of

either the Eighth Amendment to the United States Constitution or Article I, Section 9 of

the Ohio Constitution.” State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48

N.E.3d 516, ¶ 38.

         {¶ 13} Accordingly, counsel’s second proposed assignment of error is without

merit.

                                       IV. Conclusion

         {¶ 14} We have conducted an independent review of the record, as required by

Anders, and find no issue of arguable merit for appeal. Therefore, counsel’s motion to

withdraw is hereby granted.

         {¶ 15} For the foregoing reasons, the judgment of the Wood County Court of

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

to App.R. 24.




8.
       {¶ 16} The clerk is ordered to serve all parties with notice of this decision.



                                                                 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. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Stephen A. Yarbrough, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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