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State v. Vialva

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 6, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOHNSON VIALVA DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-599397-A

          ATTORNEY FOR APPELLANT Jonathan N. Garver The Brownhoist Building

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Daniel Van Assistant Prosecuting Attorney The Justice Center,

          BEFORE: Keough, A.J., Stewart, J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

         {¶1} Defendant-appellant, Johnson Vialva, challenges his guilty plea and the effectiveness of his trial counsel. For the reasons that follow, we affirm.

         {¶2} In October 2015, Vialva was named in a 24-count indictment charging him with 12 counts of rape, with furthermore clauses alleging that the victim was under ten years of age and sexually violent predator specifications; ten counts of gross sexual imposition, with sexually violent predator specifications; and two counts of kidnapping, with sexual motivation and sexually violent offender specifications.

         {¶3} In February 2016, Vialva pleaded guilty to ten amended counts of rape, ten amended counts of gross sexual imposition, and two amended counts of kidnapping. The parties agreed to a 20 year to life prison sentence, which the trial court ultimately imposed.

         {¶4} Vialva now appeals, raising four assignments of error, which will be addressed together where appropriate.

         I. Plea - Nature of the Charges and Right to Testify

         {¶5} In his first and second assignments of error, Vialva contends that the trial court committed prejudicial error and denied him due process of law by accepting his guilty pleas without (1) determining that he understood the nature of the charges to which he was pleading, and (2) advising him that he had the right to testify if the case proceeded to trial and that he would be waiving that right if he pleaded guilty.

         {¶6} Under Crim.R. 11(C)(2), in a felony case, a trial court shall not accept a guilty plea without first addressing the defendant personally and (1) determining that the defendant is making the plea voluntarily, with an understanding of the nature of the charges and of the maximum penalty involved, (2) informing the defendant of and determining that the defendant understands the effect of the guilty plea and that the court, upon accepting the plea, may proceed with judgment and sentence, and (3) informing the defendant and determining that the defendant understands that by the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against him, 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

         {¶7} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements regarding the waiver of constitutional rights, which means that the court must actually inform the defendant of the constitutional rights he is waiving and make sure the defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. For nonconstitutional rights, such as the right to be informed of the nature of the charges, we review for substantial compliance with the rule. Id. at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). Substantial compliance means that under the totality of the circumstances the defendant understands the implications of his plea and the rights he is waiving. State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979).

         {¶8} In this case, the record reflects that the trial court advised Vialva at the plea hearing that he was charged with rape, gross sexual imposition, and kidnapping with a date range of January 1, 2011 through December 21, 2012. (Tr. 3.) Thereafter, the prosecutor set forth the plea agreement on the record, which defense counsel stated was his understanding of the plea, including the agreed sentence of 20 years to life in prison. The trial court then explained to Vialva the offenses and maximum sentences, including the specifications that were deleted from the counts that would have resulted, if convicted, in a sentence of life without parole. (Tr. 13-15.) Moreover, prior to Vialva actually entering his guilty pleas on the record on each count, the trial court stated the offense, including any specifications, the code section under which he was charged, and the degree of the offense. (Tr. 20-24.) ...


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