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State of Ohio v. Michael Lee Salyer

October 28, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL LEE SALYER
DEFENDANT-APPELLANT



T.C. CASE NO. 09CR250 (Criminal Appeal from Common Pleas Court)

The opinion of the court was delivered by: Grady, P.J.:

Cite as State v. Salyer,

OPINION

{¶1} Defendant, Michael Salyer, was indicted by the grand jury on one count of rape involving a child under thirteen years of age, R.C. 2907.02(A)(1)(b), and one count of gross sexual imposition involving a child under thirteen years of age, with a previous conviction for a similar sexual offense involving a minor child, R.C. 2907.05(A)(4), (C)(2)(b). Defendant entered a guilty plea to an amended charge of attempted rape, R.C. 2923.02(A) and 2907.02(A)(1)(b), as a felony of the first degree pursuant to a negotiated plea agreement. In exchange, the State dismissed the gross sexual imposition charge. The trial court sentenced Defendant to the maximum allowable ten year prison term, and classified Defendant as a Tier III sexual offender.

{¶2} Defendant timely appealed to this court from his conviction and sentence. Defendant's appellate counsel filed an Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 19 L.Ed.2d 493, stating that he could find no meritorious issues for appellate review. We notified Defendant of his appellate counsel's representations and afforded him ample time to file a pro se brief. None has been received. This case is now before us for our independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.

{¶3} Defendant's appellate counsel has identified two possible issues for appeal. Appellant counsel first raises an issue concerning the trial court's compliance with Crim.R. 11(C)(2) in accepting Defendant's guilty plea.

{¶4} Crim.R. 11(C)(2) governs the trial court's acceptance of guilty or no contest pleas in felony cases and provides:

{¶5} "(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 no contest without first addressing the defendant personally and doing all of the following:

{¶6} "(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.

{¶7} "(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

{¶8} "(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving 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."

{¶9} In order to be constitutionally valid and comport with due process, a guilty plea must be entered knowingly, intelligently and voluntarily. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Compliance with Crim.R. 11(C)(2) in accepting guilty or no contest pleas portrays those qualities.

{¶10} In State v. McGrady, Greene App. No. 2009CA60, 2010-Ohio-3243, at ¶11-13, this court stated:

{ΒΆ11} "In order for a plea to be given knowingly and voluntarily, the trial court must ...


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