Opinion
CT2024-0015 CT2024-0016
09-25-2024
STATE OF OHIO Plaintiff-Appellee v. JUSTIN BROWN Defendant-Appellant
For Plaintiff-Appellee: Gerald Anderson Assistant Prosecutor For Defendant-Appellant: April F. Campbell
Character of Proceeding: Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR 2023-0690 and CR2023-0691
Judgment: Affirmed
For Plaintiff-Appellee: Gerald Anderson Assistant Prosecutor
For Defendant-Appellant: April F. Campbell
Judges: Hon. Patricia A. Delaney, P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J.
OPINION
DELANEY, J.
{¶1} Appellant Justin Brown appeals from the December 28, 2023 Judgment Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio and did not appear in this appeal.
{¶2} Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), asserting she found no potential assignments of error having arguable merit. We have performed our duty under Anders to review the record independently, and we also find no potential assignments of error having arguable merit. See, State v. Adair, 5th Dist. Muskingum No. CT2022-0016, 2023-Ohio-1191, ¶ 20.
FACTS AND PROCEDURAL HISTORY
{¶3} This appeal arose from two separate criminal cases in which appellant entered pleas of guilty to multiple counts of theft, telecommunications fraud, and forgery.
{¶4} In CR2023-690, appellant entered guilty pleas to 10 counts of theft and telecommunications fraud arising from a fake rental scheme; he was sentenced on 5 counts and the remaining counts merged. In CR2023-691, appellant entered pleas of guilty to one count each of telecommunications fraud and forgery arising from a scheme enlisting a co-defendant to fax a forged prescription to the jail to add Keppra and Thorazine to appellant's list of medications.
{¶5} In exchange for appellant's guilty pleas, the parties jointly recommended an aggregate prison term of 54 months and agreed the term would run concurrent with an 11-year prison sentence in yet another separate case.
{¶6} At the change-of-plea hearing, the trial court engaged in a Crim.R. 11 colloquy with appellant. A review of the record indicates the trial court advised appellant of the nature of the charges and the minimum and maximum penalties involved. The trial court also informed appellant of the effects of pleading guilty and the rights he would be waiving as a result of his change of plea. Appellant confirmed his understanding of the trial court's advisements. The trial court also told appellant it would not necessarily impose the jointly-recommended sentence. Appellant entered his pleas of guilty and the trial court accepted them and noted it would review a pre-sentence investigation (P.S.I.).
{¶7} At sentencing, appellee recommended the 54-month term as agreed, to be served concurrent with the 11-year prison term in another case. The trial court, however, disagreed with the jointly-recommended sentence on the basis of the P.S.I.: appellant was on felony probation at the time the offenses were committed. The trial court declined to follow the recommendation and instead imposed an aggregate prison term of 72 months. The prison terms in the 690 and 691 cases were ordered to be served consecutively, and the trial court made the findings for consecutive sentences.
{¶8} Appellant filed a timely appeal and counsel filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In Anders, the Supreme Court of the United States held that if, after a conscientious examination of the record, a defendant's counsel concludes the case is wholly frivolous, then counsel should so advise the court and request permission to withdraw. Anders at 744. Counsel must accompany the request with a brief identifying anything in the record that could arguably support the defendant's appeal. Id. Counsel also must: (1) furnish the defendant with a copy of the brief and request to withdraw; and, (2) allow the defendant sufficient time to raise any matters that the defendant 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 the 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.
{¶9} Appellate counsel's brief lists the following potential assignment of error:
ASSIGNMENT OF ERROR
{¶10} "THE TRIAL COURT ERRED IN ACCEPTING BROWN'S GUILTY PLEAS UNDER CRIM.R. 11 AND ERRED IN SENTENCING BROWN."
ANALYSIS
{¶11} Appellate counsel has filed a brief pursuant to Anders, supra, stating that she can find no potential assignments of error having arguable merit. By entry filed on March 26, 2024, appellant was advised that an Anders brief had been filed on his behalf, and he was advised to file his own pro se brief within 60 days of the entry (May 27, 2024).
{¶12} Appellant has not filed a pro se brief and we have not received a responsive brief from appellee.
I.
{¶13} In the sole proposed assignment of error, appellate counsel examines whether the trial court complied with Crim.R. 11 in accepting appellant's guilty pleas or erred in sentencing him, concluding there is no merit to this potential assignment of error. We agree.
{¶14} In his sole potential assignment of error, appellant first addresses the trial court's obligations pursuant to Crim.R. 11 at the change-of-plea hearing, but acknowledges the trial court complied with Crim.R. 11 in accepting his guilty pleas.
{¶15} Our analysis of appellant's first assignment of error begins with Crim.R. 11(C)(2). This rule provides the trial court with the various rights that must be discussed with a defendant prior to the acceptance of a guilty plea and states:
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the right to jury trial, to confront witnesses against him or her, 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 or herself.
{¶16} Crim.R. 11(C)(2) creates two separate sets of rights that the trial court is required to discuss with a defendant prior to its acceptance of a guilty plea. State v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428, ¶ 10. The first set addresses constitutional rights; the second set addresses non-constitutional rights. See, e.g., State v. Dunham, 5th Dist. No. 2011-CA-121, 2012-Ohio-2957, ¶ 11 citing 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). Ultimately, "the basis of Crim.R. 11 is to assure that the defendant is informed, and thus enable the judge to determine that the defendant understands that his plea waives his constitutional right to a trial. And, within that general purpose is contained the further provision which would inform the defendant of other rights and incidents of a trial." Ballard, supra, 66 Ohio St.2d at 480.
{¶17} On appeal, the issue becomes whether the record demonstrates that the defendant was informed of the relevant constitutional rights and incidents of a trial to warrant the conclusion that he or she understands what a trial is, and that a guilty plea represents a knowing and voluntary forfeiture of those rights stemming from a trial. Id.
{¶18} To conform to the various constitutional requirements of Crim.R. 11(C), the trial court must explain to the defendant that he or she is waiving: (1) the Fifth Amendment privilege against self-incrimination; (2) the right to a trial by jury; (3) the right to confront one's accusers; (4) the right to compulsory process of witnesses; and (5) the right to require the state to prove guilt beyond a reasonable doubt. State v. Singh, 141 Ohio App.3d 137, 750 N.E.2d 598 (11th Dist.2000). The court must strictly comply with these requirements, and the failure to strictly comply invalidates a guilty plea.
{¶19} The remaining requirements of Crim.R. 11(C) pertain to non-constitutional rights. Unlike the previously stated constitutional rights, which necessitate strict compliance, non-constitutional rights require that the trial court demonstrate substantial compliance. 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." Nero at 108, 564 N.E.2d 474.
{¶20} In addition, if the trial court fails to substantially comply with Crim.R. 11(C), the defendant must also demonstrate that he or she was prejudiced by this lack of compliance. State v. Johnson, 40 Ohio St.3d 130, 134, 532 N.E.2d 1295 (1988). See, also, Crim.R. 52(A) and 33(E). The test of prejudice queries whether the plea would have been made despite the trial court's failure to substantially comply with the prerequisites of Crim.R. 11(C).
{¶21} The record before us establishes that the trial court discussed the offenses with appellant and informed him of the possible penalties that could result from the convictions. Appellant informed the trial court that he understood the charges and the possible penalties. The record further demonstrates that the court notified appellant of the constitutional and non-constitutional rights encompassed by Crim.R. 11(C)(2), and the effect that a guilty plea would have on such rights. Again, appellant told the court that he understood the effect of his guilty pleas.
{¶22} Our review of the record of the plea hearing reveals the trial court advised appellant of his constitutional rights, the potential penalties, and the possibility of post-release control. Further, the trial court inquired as to the voluntariness of appellant's pleas of guilty. In short, the trial court complied with Crim.R. 11.
{¶23} Further, appellant acknowledges the sentence imposed by the trial court is not clearly and convincingly contrary to law. A court reviewing a criminal sentence is required by R.C. 2953.08(F) to review the entire trial court record, including any oral or written statements and presentence investigation reports. R.C. 2953.08(F)(1) through (4). We review felony sentences using the standard of review set forth in R.C. 2953.08. State v. Williams, 2024-Ohio-2078, ¶ 17 (5th Dist.) citing State v. Marcum, 2016-Ohio-1002, ¶ 22. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See also State v. Bonnell, 2014-Ohio-3177, ¶ 28.
{¶24} "The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources." R.C. 2929.11(A). To achieve these purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both. Id. Further, the sentence imposed shall be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes by similar offenders." R.C. 2929.11(B).
{¶25} R.C. 2929.12 lists general factors which must be considered by the trial court in determining the sentence to be imposed for a felony and gives detailed criteria which do not control the court's discretion, but which must be considered for or against severity or leniency in a particular case. The trial court retains discretion to determine the most effective way to comply with the purpose and principles of sentencing as set forth in R.C. 2929.11. R.C. 2929.12.
{¶26} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh the evidence in the record and substitute our own judgment for that of the trial court to determine a sentence which best reflects compliance with R.C. 2929.11 and R.C. 2929.12. State v. Jones, 2020-Ohio-6729, ¶ 42. Instead, we may only determine if the sentence is contrary to law.
{¶27} A sentence is not clearly and convincingly contrary to law where the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes post release control, and sentences the defendant within the permissible statutory range." State v. Pettorini, 2021-Ohio-1512, ¶¶ 14-16 (5th Dist.) quoting State v. Dinka, 2019-Ohio-4209, ¶ 36 (12th Dist.).
{¶28} In this case, the trial court imposed a sentence within the permissible statutory ranges. The trial court further considered both the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. This Court has consistently rejected the argument that a trial court must elevate conservation of state and local resources above the seriousness and recidivism factors. State v. Smith, 2024-Ohio-430, ¶ 26 (5th Dist.) citing State v. Leasure, 2012-Ohio-318, ¶ 29 (5th Dist.). Our independent review finds no error as to sentencing.
{¶29} We agree with appellate counsel that there is no merit to the sole proposed assignment of error.
II.
No arguably meritorious claims for appeal
{¶30} In Anders, the United States Supreme Court held that 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. Id. 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.
{¶31} Counsel in this matter followed the procedure in Anders and we reviewed the merits of appellant's potential assignments of error. Upon our review of the record, we found no error which would warrant a reversal of appellant's convictions or sentence. See, State v. Mamone, 5th Dist. Delaware No. 22 CAC 06 0042, 2023-Ohio-1167, ¶ 37; State v. Emery, 5th Dist. Ashland No. 22-COA-026, 2023-Ohio-709, ¶ 21.
{¶32} The record discloses no errors prejudicial to appellant's rights in the proceedings in the trial court. We therefore concur with appellate counsel that appellant's appeal is without merit and wholly frivolous. An appeal is wholly frivolous if the record is devoid of any legal points arguable on the merits. State v. Middaugh, 5th Dist. Coshocton No. 02 CA 17, 2003-Ohio-91, ¶ 13.
{¶33} In this case, the requirements in Anders have been satisfied. Upon our independent review of the record, we agree with counsel's conclusion that no arguably meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the Muskingum County Court of Common Pleas. See, State v. Hill, 5th Dist. Licking No. 15-CA-13, 2016-Ohio-1214, ¶ 20, appeal not allowed, 147 Ohio St.3d 1412, 2016-Ohio-7455, 62 N.E.3d 185.
CONCLUSION
{¶34} Counsel's motion to withdraw is granted. The judgment of the Muskingum County Court of Common Pleas is affirmed.
Delaney, P.J., Wise, J. and King, J., concur.