Court of Appeals of Ohio, Seventh District, Belmont
Appeal from the Court of Common Pleas of Belmont County, Ohio
Case No. 15 CR 214.
Plaintiff-Appellee Attorney Daniel Fry Belmont County
Prosecutor Attorney J. Flanigan
Defendant-Appellant Attorney Brent Clyburn
Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb JUDGE.
Defendant-Appellant, Michael Sankovitch, appeals the trial
court's judgment of conviction and sentence following his
plea. Appointed appellate counsel for Sankovitch has filed a
no-merit brief and a request to withdraw as counsel pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.E.2d 493 (1967) and State v. Toney, 23
Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
Sankovitch was indicted for unlawful sexual conduct with a
minor, intimidation of a witness in a criminal case, and
sexual battery, all felonies of the third degree. Sankovitch
entered a guilty plea to sexual battery, and the remaining
counts were dismissed. The plea agreement noted that the
State would stand silent as to a sentence recommendation, and
Sankovitch specifically waived the right to appeal the length
of the sentence. At the sentencing hearing trial counsel
requested a less than maximum sentence based upon the risk
assessment conducted during the presentence investigation.
Sankovitch was sentenced to a maximum prison term of five
years and five years post release control. Counsel filed a
no-merit brief. We granted Sankovitch 30 days to file a pro
se brief, which he failed to do.
An attorney appointed to represent an indigent criminal
defendant may seek permission to withdraw if the attorney can
show that there is no merit to the appeal. See generally
Anders, 386 U.S. 738. This requires appellate counsel to
undertake a conscientious examination of the case and
accompany the request for withdrawal with a brief referring
to anything in the record that might arguably support an
appeal. Toney, 23 Ohio App.2d at 207. Counsel's
motion must then be transmitted to the defendant in order to
assert any error pro se. Id. at syllabus. The
reviewing court must then decide, after a full examination of
the proceedings, whether the case is wholly frivolous.
Id. If deemed frivolous, counsel's motion to
withdraw is granted, new counsel is denied, and the trial
court's judgment is affirmed. Id.
In the typical Anders case involving a guilty plea,
the only issues that can be reviewed relate to the plea or
the sentence. See, e.g., State v. Verity, 7th Dist.
No. 12 MA 139, 2013-Ohio-1158, ¶ 11.
A guilty plea must be made knowingly, voluntarily and
intelligently. State v. Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509, 881 N.E.2d 1224, ¶ 7. If it is not, it
has been obtained in violation of due process and is void.
State v. Martinez, 7th Dist. No. 03 MA 196,
2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama,
395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When
determining the voluntariness of a plea, this court must
consider all of the relevant circumstances surrounding it.
State v. Johnson, 7th Dist. No. 07 MA 8,
2008-Ohio-1065, ¶ 8, citing Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747
The trial court must engage in a Crim.R. 11(C) colloquy with
the defendant in order to ensure that a felony
defendant's plea is knowing, voluntary and intelligent.
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 25-26. During the colloquy, the trial
court is to provide specific information to the defendant,
including constitutional and nonconstitutional rights being
waived. Crim.R. 11(C)(2); State v. Francis, 104 Ohio
St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355.
The constitutional rights the defendant must be notified of
are the right against self-incrimination, to a jury trial, to
confront one's accusers, to compel witnesses to testify
by compulsory process, and to have the state prove guilt
beyond a reasonable doubt. Crim.R. 11(C)(2)(c); State v.
Veney 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 19-21. A trial court must strictly comply with
these requirements. Id. at ¶ 31; State v.
Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115 (1981).
"Strict compliance" does not require a rote
recitation of the exact language of the rule. Rather, a
reviewing court should focus on whether the "record
shows that the judge explained these rights in a manner
reasonably intelligible to the defendant." Id.
at paragraph two of the syllabus.
The nonconstitutional rights the defendant must be informed
of are the effect of his plea, the nature of the charges, and
the maximum penalty, which includes an advisement on
post-release control if applicable. State v.
Martinez, 7th Dist. No. 11 MA 2, 2011-Ohio-6408, ¶
14. Further, a defendant must be notified, if applicable,
that he is not eligible for probation or the imposition of
community control sanctions. Id. Finally, this
encompasses notifying the defendant that the court may
proceed to judgment and sentence after accepting the guilty
plea. Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d
176 at ¶ 10-13; Sarkozy, 117 Ohio St.3d 86, at
¶ 19-26. The trial court must substantially comply with
these requirements. State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990). "Substantial compliance
means that under the totality of the circumstances the
defendant subjectively understands the implications of his
plea and the rights he is waiving." Id. In
addition to demonstrating the trial court did not
substantially comply with Crim R. 11(C)(2)(a)(b) the
defendant must also show a prejudicial effect, meaning the
plea would not have otherwise been made. Veney, 120
Ohio St.3d 176 at ¶ 15 citing Nero, 56 Ohio
St.3d at 108.
The trial court's advisement of Sankovitch's
constitutional rights strictly complied with Crim.R.
11(C)(2)(c), and he indicated he understood he was giving up
all of those rights. The trial court also substantially
complied with Crim.R. 11(C) when advising Sankovitch of his
nonconstitutional rights. As the trial court's colloquy