[Cite as State v. Stephen, 2016-Ohio-4803.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

VS. 

GARY STEPHEN 

 DEFENDANT-APPELLANT 

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CASE NO. 14 BE 0037 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Belmont County, Ohio 

Case No. 14 CR 020 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Daniel P. Fry 

Belmont County Prosecutor 

Attorney Helen Yonak 

Assistant Prosecutor 

147-A West Main Street 

Saint Clairsville, Ohio 43950 

For Defendant-Appellant Attorney Thomas Ryncarz 

3713 Central Avenue 

Shadyside, Ohio 43947 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 

 

 Dated: June 30, 2016 
[Cite as State v. Stephen, 2016-Ohio-4803.]

DeGENARO, J. 

{¶1} Defendant-Appellant, Gary Stephen, appeals the judgment of the 

Belmont County Court of Common Pleas convicting him of two counts of sexual 

battery and sentencing him to nine years in prison. Contrary to Stephen’s assertions 

on appeal, his plea was knowing, voluntary and intelligently made. He received 

effective assistance of counsel and the trial court did not err by imposing consecutive 

sentences. Accordingly the judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶2} Stephen was indicted by the Belmont County Grand Jury on one count 

of rape, 2907.02(A)(1)(c), a first degree felony, and one count of sexual battery, 

2907.03(A)(2), a third degree felony. Pursuant to a plea agreement the State 

amended the rape charge to sexual battery, and Stephen pled guilty to both sexual 

battery counts. Additionally, the State agreed to make no recommendation regarding 

sentencing. At the sentencing hearing the trial court noted that it had reviewed the 

presentence investigation, victim impact statements, and a letter from the Barnesville 

Police Department. Stephen apologized for his actions, and his trial counsel also 

spoke on his behalf. The trial court imposed a 60 month prison term on the first count 

of sexual battery and 48 month term on the second count. The sentences were 

ordered to be served consecutively. 

Plea 

{¶3} In his first of three assignments of error, Stephen asserts: 

The Appellant's guilty plea was not knowingly, voluntarily, and 

intelligently made in violation of Criminal Rule 11. 

{¶4} 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. 
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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 (1970). 

{¶5} The trial court must engage in a Crim.R. 11(C) colloquy with the 

defendant where it is to provide specific information to the defendant, including the 

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. State v. Clark, 119 

Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶ 25–26. 

{¶6} 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, but rather, whether the 

"record shows that the trial court explained these rights in a manner reasonably 

intelligible to the defendant." Id., paragraph two of the syllabus. 

{¶7} 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. Anderson, 7th 

Dist. No. 11 MA 125, 2012–Ohio–2759, ¶ 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, ¶ 10–13. 

{¶8} 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. If the trial 

court did not substantially comply with advising the defendant of his nonconstitutional 
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rights, he must also show prejudice; that the plea would not have been made. Veney, 

¶ 15, citing Nero at 108. 

{¶9} The trial court's advisement of Stephen's constitutional rights strictly 

complied with Crim.R. 11(C)(2)(c), and he indicated he understood he was giving up 

those rights. The trial court also substantially complied with Crim.R. 11(C) when 

advising Stephen of his nonconstitutional rights. 

{¶10} Stephen contends that he was not advised that the sexual battery 

charge requires a mandatory prison sentence pursuant to R.C. 2929.13(F)(3)(c)(ii); 

thus his plea was not knowing, voluntary and intelligent. The State counters that a 

mandatory prison sentence does not accompany this charge because the victim was 

over the age of 40. 

{¶11} R.C. 2929.13(F)(3) provides in pertinent part that a prison term is 

mandatory for a sexual battery conviction "if the victim is less than thirteen years of 

age." Clearly by the terms of the statute mandatory time was not required because 

the victim was not under the age of thirteen. As the time was not mandatory, any 

reference by the trial court to community control sanctions was not in error. The trial 

court's colloquy complied with Crim.R. 11(C), as such, the plea was knowingly, 

voluntarily, and intelligently entered. Accordingly, Stephen's first assignment of error 

is meritless. 

Ineffective Assistance of Counsel 

{¶12} In his second of three assignments of error, Stephen asserts: 

 The Appellant was denied the effective assistance of trial 

counsel. 

{¶13} To prove an allegation of ineffective assistance of counsel, the 

defendant must satisfy a two-prong test; that counsel's performance has fallen below 

an objective standard of reasonable representation, and that he was prejudiced by 

counsel's performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 

80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), 
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at paragraph two of the syllabus. To demonstrate prejudice, the defendant must 

prove that, but for counsel's errors, the result of the trial would have been different. 

Id., paragraph three of the syllabus. In Ohio, a properly licensed attorney is presumed 

to be competent and the burden is on the defendant to prove otherwise. State v. 

Hamblin, 37 Ohio St.3d 153, 155, 524 N.E.2d 476 (1988). 

{¶14} "A guilty plea waives the right to allege ineffective assistance of 

counsel, except to the extent the errors caused the plea to be less than knowing and 

voluntary." State v. Huddleson, 2d Dist. No. 20653, 2005–Ohio–4029, ¶ 9 citing State 

v. Spates, 64 Ohio St.3d 269, 1992-Ohio-130, 595 N.E.2d 351. 

{¶15} Stephen first contends that his attorney was ineffective because he 

failed to inform him that the jail time for sexual battery was mandatory, which we 

have rejected above. Stephen also argues that trial counsel should have written the 

possible sentences for the crime of sexual battery on the written plea form. However, 

the information is included on the plea form and was also relayed to Stephen during 

the plea hearing to which he stated he understood. 

{¶16} As Stephen’s plea was knowingly, voluntarily and intelligently made, he 

has failed to establish deficient performance by his attorney. Accordingly, Stephen’s 

second assignment of error is meritless. 

Consecutive Sentence 

{¶17} In his final assignment of error, Stephen asserts: 

 The trial court committed error in imposing an aggregate 

sentence of nine (9) years in prison because the trial court abused its 

discretion in imposing said sentence upon the Appellant. 

{¶18} The Ohio Supreme Court recently resolved the question of what 

standard of review to apply to felony sentences challenged on appeal: "Applying the 

plain language of R.C. 2953.08(G), * * * an appellate court may vacate or modify a 

felony sentence on appeal only if it determines by clear and convincing evidence that 

the record does not support the trial court's findings under relevant statutes or that 
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the sentence is otherwise contrary to law." State v. Marcum, ---Ohio St.3d ---, 2016-

Ohio-1002, ¶1; State v. Mims, 7th Dist. No. 14 JE 0025, 2016-Ohio-3228, ¶ 43.

{¶19} Stephen was afforded his allocution rights pursuant to Crim.R. 32(A)(1). 

He apologized for what he did to the victim and her family. The trial court properly 

notified Stephen that upon his release from prison he would be subject to a 

mandatory five-year period of post-release control and explained the ramifications of 

violating post-release control. See R.C. 2967.28(B)(1). The trial court properly 

classified Stephen as a Tier III sex offender and notified Stephen about his sex 

offender registration and notification duties. 

{¶20} The nine year prison sentence Stephen received is within the range for 

the charges. The trial court considered the principles and purposes of felony 

sentencing and the sentencing factors. R.C. 2929.11 and R.C. 2929.12. 

{¶21} With regard to consecutive sentences, the provisions of H.B. 86, 

codified as R.C. 2929.14(C)(4), apply to criminal defendants who were sentenced on 

or after September 30, 2011. Based on R.C. 2929.14(C)(4), a trial court is required to 

make three findings before imposing consecutive sentences: 1) consecutive 

sentences are necessary to protect the public from future crime or to punish the 

defendant; 2) consecutive sentences are not disproportionate to the seriousness of 

the defendant's conduct and the danger the defendant poses to the public; and 3) 

one of three alternative findings, set out in subsections, namely that: a) the defendant 

was under post-release control, specified statutory community control, or awaiting 

trial or sentencing; b) the offenses were committed during a course of conduct and 

the harm was so great/unusual that a single term does not reflect the seriousness of 

the defendant's conduct; or c) the defendant's criminal history demonstrates the need 

to protect the public from future crime by the defendant. R.C. 2929.14(C)(4). 

{¶22} The findings supporting consecutive sentences must be made both at 

the sentencing hearing and in the entry. State v. Bonnell, 140 Ohio St.3d 209, 2014–

Ohio–3177, 16 N.E.3d 659, ¶ 37. However, a trial court need not state reasons to 

support its findings nor is it required to use any "magic" or "talismanic" words, so long 
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as it is apparent that the court conducted the proper analysis. State v. Jones, 7th 

Dist. No. 13 MA 101, 2014-Ohio-2248, ¶ 6; Bonnell, ¶ 37. Post-Bonnell, we may 

liberally review the entirety of the sentencing transcript to discern whether the trial 

court made the requisite findings. Bonnell, ¶ 29. However, as demonstrated by the 

outcome in Bonnell—the Supreme Court reversed and remanded Bonnell's sentence 

because the trial court failed to make a proportionality finding—there are limits to that 

deference. Bonnell, ¶ 33-34. After a reviewing court determines the findings have 

been made, the court "must also determine whether the record contains evidence in 

support of the trial court's findings." State v. Correa, 7th Dist. 13 MA 23, 2015-Ohio3955, ¶ 76, citing Bonnell at ¶29. 

{¶23} Here, the trial court made the following findings with regard to the 

imposition of consecutive sentences during the hearing: 

 In accord with 2929.14(C)(4), I find that consecutive sentences 

are necessary to protect the public from future crime by this defendant 

or others, and that consecutive sentences are not disproportionate to 

the seriousness of the offenses. And the Court specifically finds that the 

harm in this case was so great that a single term does not reflect the 

seriousness of the conduct: i.e., defendant having previously been 

convicted of gross sexual imposition commits two separate counts of 

sexual battery against the same victim with knowledge that said victim’s 

judgment is obviously impaired. And combined with his lack of genuine 

remorse, such conduct demonstrates that consecutive terms are 

necessary to protect the public from future acts by this defendant. 

{¶24} The sentencing entry stated almost verbatim what was said at the 

hearing. The trial court made the findings necessary to support the imposition of 

consecutive sentences pursuant to R.C. 2929.14(C)(4) both at the hearing and 

included them in the sentencing entry. Stephen disagrees with a few of the factual 

determinations made by the trial judge in support of the sentence. Despite counsel’s 
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protests on appeal, these determinations are supported by the record. Accordingly, 

Stephen’s third assignment of error is meritless. 

{¶25} In sum, Stephen’s plea was knowing, voluntary and intelligently made. 

Stephen received effective assistance of counsel and the trial court properly imposed 

consecutive sentences. Accordingly, the judgment of the trial court is affirmed. 

Donofrio, P. J., concurs. 

Waite, J., concurs.