Opinion
22CA000050 22CA000051
08-09-2023
STATE OF OHIO Plaintiff-Appellee v. JONATHAN BALES Defendant-Appellant
For Plaintiff-Appellee LINDSEY K. ANGLER Prosecuting Attorney For Defendant-Appellant CHRIS BRIGDON
Criminal appeal from the Guernsey County Court of Common Pleas, Case Nos. 19 CR 00040; & 20 CR 00080
For Plaintiff-Appellee LINDSEY K. ANGLER Prosecuting Attorney
For Defendant-Appellant CHRIS BRIGDON
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
OPINION
GWIN, P.J.
{¶1} This matter comes before the Court upon the Motion to Withdraw and Anders brief filed by counsel for Defendant-appellant Jonathan Bales [Bales] after his convictions and sentences following a negotiated guilty plea in the Guernsey County Court of Common Pleas.
The State of Ohio did not file a brief in this case.
Facts and Procedural History
{¶2} On November 26, 2019, Bales was Indicted in Guernsey County Court of Common Pleas, Case No. 19 CR 000403 with one count of Aggravated Possession of Drugs [Methamphetamine]. On December 9, 2019, a capias was issued for Bales' arrest.
5th Dist. Guernsey No. 2022 CA 0050.
{¶3} On March 18, 2020 Bales was indicted in Guernsey County Court of Common Pleas, Case No. 20 CR 000080 with one count of Aggravated Possession of Drugs [Methamphetamine]. On May 27, 2020 a capias was issued for Bales' arrest.
5th Dist. Guernsey No. 2022 CA 005.
{¶4} On October 5, 2020, Bales was arrested on both cases. On December 2, 2020 capiases were issued in both cases for Bales' arrest. On June 8, 2022, Bales was arrested.
{¶5} By Judgment Entry filed July 27, 2022, the trial judge noted that a negotiated guilty plea had been reached for both cases. A Pre-sentence Investigation Report was ordered and the cases were set for a change of plea hearing.
{¶6} Written pleas of guilty were filed in accordance with Criminal Rule 11(C) and (F) on September 12, 2022. The state agreed not to pursue indictment of Bales' failure to appear on recognizance bond. The state further reserved the right to be heard at sentencing. Bales agreed to plead guilty in both cases. Bales entered his guilty pleas in open court on September 12, 2022.
{¶7} A sentencing hearing took place on November 7, 2022. The trial judge sentenced Bales to nine months on each charge. He further ordered the sentences be served consecutively for an aggregate sentence of 18 months.
Proposed Assignment of Error
{¶8} Bales' attorney has set forth one Proposed Assignment of Error, {¶9} "I. THERE IS NO NONFRIVOLOUS ISSUE REGARDING APPELLANT'S GUILTY PLEA ON AUGUST 22, 2022 AND RELATED SENTENCING ON NOVEMBER 7, 2022 IN GUERNSEY COUNTY COURT OF COMMON PLEAS TRIAL COURT CASE NUMBER 19 CR 403 AND 20 CR 80."
{¶10} Bales' appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We informed Bales that his attorney had filed an Anders brief on his behalf and granted him until May 12, 2022 to file a pro se brief. Judgement Entry, filed Mar 13, 2022. Bales has not filed a pro se brief.
Standard of Review - Anders v. California
{¶11} In Anders, the United States Supreme Court held if, after a conscientious examination of the record, a defendant's counsel concludes the case is wholly frivolous, then he should so advise the court and request permission to withdraw. 386 U.S. at 744. Counsel must accompany his request with a brief identifying anything in the record that could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any matters that the client chooses. Id. Once the defendant's counsel satisfies these requirements, the appellate court must fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court also determines that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id.
{¶12} "Anders equates a frivolous appeal with one that presents issues lacking in arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply or because it is uncertain whether a defendant will prevail on the issue on appeal. "An issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal." State v. Pullen, 2nd Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4; State v. Marbury, 2nd Dist. Montgomery App. No. 19226, 2003-Ohio-3242, ¶ 7-8; State v. Chessman, 161 Ohio App.3d 140, 829 N.E.2d 748, 2005-Ohio-2511 (2nd Dist.), ¶ 16-17 (quoting the same)." State v. Moore, 2nd Dist. Greene App. No. 07-CA-97, 2009-Ohio-1416, ¶4.
The Guilty Plea
{¶13} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently, and voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need only "substantially comply" with the rule when dealing with the non-constitutional elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977).
{¶14} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the state must prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that the defendant cannot be compelled to testify against himself. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with these requirements, the defendant's plea is invalid. Id. at ¶ 31.
{¶15} The non-constitutional rights that the defendant must be informed of are: (1) the nature of the charges; (2) the maximum penalty involved, which includes, if applicable, an advisement on post-release control; (3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions; and (4) that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26, (post-release control is a non-constitutional advisement).
{¶16} For the non-constitutional rights, the trial court must substantially comply with Crim.R. 11's mandates. 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." Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the basis that the advisement for the non-constitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have been otherwise entered. Veney at ¶ 15; State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163(1977).
{¶17} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d 474(1990); State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶9; State v. Groves, 5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025, ¶7. Issue for Appellate Review: Whether the record reflects any arguably meritorious issues exist with respect to whether Bales' guilty plea was made knowingly, intelligently, and voluntarily.
{¶18} Evidence of a written waiver form signed by the accused is strong proof that the waiver was valid. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844, 854(1988); see North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758-1759, 60 L.Ed.2d 286, 293(1979); State v. Dennis, 79 Ohio St.3d 421, 425, 1997-Ohio-372, 683 N.E.2d 1096, 1102(1997). In the case at bar, we note a written plea of guilty form was signed by Bales and his attorney, and filed in each case. Bales acknowledged to the trial judge that he read the plea forms, and he reviewed the plea forms with his attorney, who explained the forms and answered his questions. Plea T. at 9-10. Bales acknowledged that he understood the plea forms and he signed the plea forms. Id.
{¶19} The trial judge informed Bales that the state reserved the right to make an argument at sentencing. Plea T. at 11. He further informed Bales that he was not bound to follow either the prosecutor's or Bales' attorney's recommendation concerning sentencing. Id.
{¶20} Bales acknowledged the he and his attorney had reviewed the evidence against him. Plea T. at 12. He further assured the trial judge that he was satisfied with his attorney. Id.
{¶21} Bales understood the elements of the crimes, that by entering a plea of guilty he was making a complete admission that he committed both offenses, and that the trial judge could proceed immediately to sentencing. Plea T. at 13.
{¶22} The trial judge explained to Bales his right to a jury trial. Plea T. at 14-15. The trial judge further explained Bales' right to the confrontation of witnesses against him; the compulsory process for obtaining witnesses in his favor; that the state must prove the defendant's guilt beyond a reasonable doubt at trial; and that the defendant cannot be compelled to testify against himself. Plea T. at 16-17. The judge also explained the maximum penalty involved, which included an advisement on post-release control; and that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing. Plea T. at 13-14; 18- 24. The judge informed Bales that he could impose the sentences consecutively or concurrently. Id. at 19-20.
{¶23} The record demonstrates the trial court very carefully adhered to Criminal Rule 11, and strictly complied with all of the requirements of Criminal Rule 11. The trial court conducted a complete and through colloquy. Bales acknowledged he understood his rights, the charges, the plea agreement, the maximum penalties, and the specific constitutional rights he was waving with the plea. The record further supports that the trial judge substantially complied with Crim.R. 11 's mandates for non-constitutional rights.
{¶24} The record supports a conclusion that the plea was properly entered and accepted. The record in this case shows the trial court's compliance with Criminal Rule 11, and supports the trial court's determination that Bales' plea was knowingly, intelligently, and voluntarily made.
{¶25} Thus, after independently reviewing the record we find no arguably meritorious issues exist with respect to whether Bales' guilty plea was made knowingly, intelligently, and voluntarily.
Sentence
{¶26} Before a trial court imposes consecutive sentences, it must make specific findings which are delineated in R.C. 2929.14(C)(4). Specifically, the trial court must find that "the consecutive service is necessary to protect the public from future crime or to punish the offender." Id. It must also find that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." Id. Finally, the court must find at least one of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b)At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶27} R.C. 2953.08(G)(2) does not allow an appellate court to reverse or modify a defendant's consecutive sentences using the principles and purposes of felony sentencing as set forth in R.C. 2929.11(A) and (B) and the seriousness and recidivism factors in R.C. 2929.12. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶13-18. ("Gwynne II"); State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶39; State v. Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶10.
{¶28} An appellate court can reverse or modify the trial court's order of consecutive sentences if it clearly and convincingly finds that the record does not support the findings. The evidentiary standard for changing the trial court's order of consecutive sentences is not deference to the trial court; the evidentiary standard is that the appellate court, upon a de novo review of the record and the findings, has a "firm belief" or "conviction" that the findings are not supported by the evidence in the record. State v. Gwynne, Slip Op. No. 2022-Ohio-4607, 2022 WL 1780605 (Dec. 23, 2022) ("Gwynne III").
A Motion to Reconsider was filed with the Ohio Supreme Court in Gwynne III on January 3, 2023 and is currently under consideration by the Court.
{¶29} The first step in consecutive-sentence review is to ensure that the consecutive-sentence findings under R.C. 2929.14(C)(4) have been made-i.e., the first and second findings regarding necessity and proportionality, as well as the third required finding under R.C. 2929.14(C)(4)(a), (b), or (c). Gwynne III, ¶ 25.
{¶30} If the trial court fails to make these findings, and that issue is properly raised on appeal, then the appellate court must hold that the order of consecutive sentences is contrary to law and either modify the sentence or vacate it and remand the case for resentencing. Gwynne III, ¶ 25.
Issue for appellate review: Whether the record reflects any arguably meritorious issues exist with respect to whether Bales' sentence is contrary to law.
{¶31} In the case at bar, the trial judge reviewed the pre-sentence investigation report, the police incident reports for each charge, the laboratory reports in each case and the Ohio Risk Assessment Score. Sent. T. at 4-5. He also reviewed a letter submitted in support of Bales. Id. at 7. The trial judge heard the arguments from the prosecutor and from Bales' attorney. Id. at 8-17. Bales also made a statement before the judge-imposed sentence. Id. at 18.
{¶32} The trial judge considered the purposes and principles of sentencing. Sent. T. at 19-20. The trial judge found Bales was not amenable to community control. Sent. T. at 25. After reviewing Bales' criminal history and his conduct in failing to appear in these cases the trial judge found consecutive sentences were necessary to protect the public from future crime or to punish this offender. The trial court further found that consecutive sentences are not disproportionate to the seriousness of Bales' conduct and to the danger he poses to the public. Sent. T. at 25.
{¶33} In this case, the record does support a conclusion that the trial court made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences.
{¶34} Upon review, we find that the trial court's sentencing on the charges complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. We also find that the record in the case at bar supports the trial court's findings under R.C. 2929.14(C)(4).
{¶35} Thus, after independently reviewing the record we find no arguably meritorious issues exist with respect to whether Bales' sentence was contrary to law.
Conclusion
{¶36} After independently reviewing the record, we agree with appellate counsel's conclusion that no arguably meritorious claims exist upon which to base an appeal. We therefore find the appeal to be wholly frivolous under Anders.
{¶37} Attorney Chris Brigdon's motion to withdraw as counsel for Appellant is hereby granted.
{¶38} The judgment of the Guernsey County Court of Common Pleas is affirmed.
By Gwin, P.J., Delaney, J., and Baldwin, J., concur.