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State v. Bublitz

Court of Appeals of Ohio, Ninth District

September 26, 2007

STATE OF OHIO, Appellee
v.
STACY BUBLITZ, Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 06 05 1954

RUSSELL S. BENSING, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and PHILIP D. BOGDANOFF, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

LYNN C. SLABY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

{¶1} Defendant/Appellant appeals his conviction and sentence in the Summit County Court of Common Pleas. We affirm.

{¶2} On June 13, 2006, Defendant was indicted on five counts of trafficking in drugs, in violation of R.C. §2925.03(A)(2), felonies of the first degree; two counts of trafficking in drugs, in violation of R.C. §2925.03(A)(2), felonies of the second degree; and one count of illegal manufacturing of drugs, in violation of R.C. §2925.04(A), a third degree felony. Defendant initially pled not guilty to all of the counts of the indictment but on October 5, 2006, Defendant entered into a plea agreement pleading guilty to counts one through five of the indictment, trafficking in drugs, in violation of R.C. 2925.03(A)(2), first degree felonies. All other counts were dismissed. Defendant signed a plea agreement and on October 6, 2006, the trial court conducted a plea hearing, accepted Defendant's plea, and found him guilty. Defendant was sentenced on November 21, 2006, to five years of incarceration on each count to be served concurrently and five years of post-release control.

{¶3} Defendant timely appealed the trial court's acceptance of his plea and subsequent conviction and sentence raising two assignments of error.

Assignment of Error No. 1
"The trial court erred, in contravention to Defendant's rights to due process under the 14th Amendment to the Constitution of the United States (Appx.9), and under Article I, Section 16 of the Ohio Constitution (Appx.5), in failing to substantially comply with the provisions of Crim.R. 11(C) (Appx. 6, p.8) in accepting Defendant's plea of guilty, but not properly advising him of post-release controls."
Assignment of Error No. 2
"The trial court erred, in contravention to Defendant's rights to due process and to confront and cross-examine his accusers under the 6th and 14th Amendments to the Constitution of the United States (Appx. 8 and Appx. 9, respectively), and under Article I, Section 10 of the Ohio Constitution (Appx.4), in failing to strictly comply with the provisions of Crim.R. 11(C) (Appx. 6, p.8) in accepting Defendant's plea of guilty, by not properly advising him of his confrontation rights."

{¶4} Defendant asserts that the trial court failed to substantially comply with Crim.R. 11(C) by failing to advise him of his mandatory five-year term of post-release control prior to accepting his plea. Defendant asserts that a notation in the plea agreement is not sufficient. Moreover, even if it were, the notation in the plea agreement at issue in this case is erroneous in that it indicates that Defendant "could" be subject to a term of up to five years of post-release control, when, in fact, the five year term is statutorily mandated. Defendant further asserts that the trial court failed to strictly comply with Crim.R. 11(C) when it failed to advise him of his right to confront witnesses prior to accepting his plea.

{¶5} The Supreme Court of Ohio addressed the nature of the rights enumerated in Crim.R. 11 in State v. Ballard (1981), 66 Ohio St.2d 473. The Ballard court determined that the right to compulsory process, along with the privilege against self-incrimination, the right to a jury trial, and the right to confront one's accusers, is a constitutional right, of which a defendant must be informed by the trial court. State v. Anderson (1995), 108 Ohio App.3d 5, 8.

{¶6} Crim.R. 11(C) governs the acceptance of guilty pleas in felony cases, stating in pertinent part that:

"(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or a plea of no contest without first ...

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