State v. Riffle

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[Cite as State v. Riffle, 2023-Ohio-4808.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY STATE OF OHIO, : Plaintiff-Appellee, : CASE NO. 23CA5 v. : JASON RIFFLE, : DECISION AND JUDGMENT ENTRY Defendant-Appellant. : _________________________________________________________________ APPEARANCES: Pat Story, Middleport, Ohio, for appellant.1 ___________________________________________________________________ CRIMINAL APPEAL FROM MUNICIPAL COURT DATE JOURNALIZED:12-19-23 ABELE, J. {¶1} This is an appeal from a Gallipolis Municipal Court judgment of conviction and sentence. Jason Riffle, defendant below and appellant herein, assigns two errors for review: FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED, DENYING APPELLANT RIFFLE HIS RIGHT TO BE PRESENT AT ALL CRUCIAL STAGES, WHEN IT HELD A REMOTE ARRAIGNMENT, PLEA, AND SENTENCING HEARING WITHOUT OBTAINING A VALID WAIVER OF THAT RIGHT OR WITHOUT COMPLYING WITH REQUIREMENTS FOR REMOTE HEARINGS FOUND IN THE CRIMINAL RULES. (JANUARY 12, 2013 ENTRY AND SENTENCING ENTRY).” 1 Appellee did not file an appellate brief or enter an appearance in this appeal. GALLIA, 23CA5 2 SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED WHEN IT ACCEPTED RIFFLE’S EQUIVOCAL GUILTY PLEA WHERE THE RECORD REFLECTS THAT RIFFLE DID NOT UNDERSTAND THE POSSIBLE PLEAS AND WHERE THE COURT PROVIDED POTENTIALLY MISLEADING INFORMATION ABOUT THE LEGAL IMPACT OF THE PLEA. (TR. AT 5-6).” {¶2} This is an appeal from a judgment of conviction and sentence based upon a complaint that alleged appellant, on January 11, 2023, acted as a lookout for a companion who concealed merchandise in a shopping bag. After the trial court accepted appellant’s guilty plea for theft in violation of R.C. 2913.02(A)(1), a first degree misdemeanor, the court found appellant guilty and sentenced him to serve 170 days in jail. Subsequently, this court granted appellant’s App.R. 5 request for a delayed appeal and the matter is properly before this court for decision and judgment. {¶3} In his first assignment of error, appellant asserts that, although the trial court “advised, explained, and discussed in detail a number of the rights and the forms to be used during the hearing,” nothing in the record “shows that the trial court ever obtained an appropriate waiver of Riffle’s right to be present, in writing or on the record. Nor does that record show compliance with other requirements for remote attendance during the hearing: no notice of a remote hearing appears as part of the record in this GALLIA, 23CA5 3 case (see, Crim.R. 43(A)(2)(a).” Thus, appellant asserts, the trial court did not sufficiently comply with the Ohio Rules of Criminal Procedure, including Crim.R. 43. {¶4} In his second assignment of error, appellant asserts that, because he did not fully understand the various plea options and the impact of his “tentative” plea, he did not enter a knowing, intelligent and voluntary guilty plea. Appellant contends that a review of the transcript reveals that his “confused, equivocal statements” show that he did not understand or appreciate the ramifications of his guilty pleas. {¶5} In the case sub judice we also recognize that appellee, despite requests, opted not to file an appellate brief or participate in this appeal. We point out that the Ohio Rules of Appellate Procedure contain a provision that speaks to this situation. App.R. 18 provides: (C) Consequences of Failure to File Brief. If an appellant fails to file the appellant’s brief within the time provided by this rule, or within the time as extended, the court may dismiss the appeal. If an appellee fails to file the appellee’s brief within the time provided by this rule, or within the time as extended, the appellee will not be heard at oral argument except by permission of the court upon a showing of good cause submitted in writing prior to argument; and in determining the appeal, the court may accept the appellant’s statement of the facts and issues as correct and reverse the judgment if appellant’s brief reasonably appears to sustain such action. GALLIA, 23CA5 4 Thus, if an appellee fails to submit an appellate brief, an appellate court, in determining the appeal, may accept the appellant’s statement of facts and issues as correct and reverse the trial court’s judgment if appellant’s brief reasonably appears to sustain such action. See Tillimon v. Myles, 6th Dist. Lucas No. L-17-1032, 2018-Ohio-434; Phillips v. Robinson, 9th Dist. Medina No. 12-CA0038-M, 2012-Ohio-6108; State v. Middleton, 85 Ohio App.3d 403, 619 N.E.2d 1113 (4th Dist. 1993). However, the failure to file an appellate brief will not, standing alone, support a reversal of judgment. Instead, an appellate court must be satisfied that appellant’s brief reasonably appears to support a reversal of judgment. In re G.J.A., 8th Dist. Cuyahoga Nos. 107229 and 107575, 2019-Ohio-1768 (quoting In re S.M.T., 8th Dist. Cuyahoga NO. 97181, 2012-Ohio-1745; State v. Rittner, 6th Dist. Fulton No. F-11-001, 2011-Ohio-2963. {¶6} In the case sub judice, appellant has submitted for our review a cogent, detailed and persuasive appellate brief. It does appear that the argument set forth in appellant’s brief reasonably supports a reversal of judgment. Moreover, appellee opted not to submit an appellate brief to respond to appellant’s arguments. Consequently, after our review, and in light of the fact that appellee did not file an appellate brief or participate in this appeal, we accept appellant’s statement of facts and issues as GALLIA, 23CA5 5 correct and reverse the trial court’s judgment. {¶7} Therefore, based upon the foregoing reasons, we hereby reverse the trial court’s judgment of conviction and sentence and remand this matter for further proceedings. JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. GALLIA, 23CA5 6 JUDGMENT ENTRY It is ordered that the judgment be reversed and the cause be remanded for further proceedings consistent with this opinion. Appellee shall pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Gallipolis Municipal Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion For the Court BY:_____________________________ Peter B. Abele, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal GALLIA, 23CA5 commences from the date of filing with the clerk. 7

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