Opinion
C. A. 2022-CA-32
07-21-2023
STATE OF OHIO Appellee v. BRENT MICHAEL GROOMS Appellant
KEVIN S. TALEBI, Attorney for Appellee. APRIL F. CAMPBELL, Attorney for Appellant
Criminal Appeal from Common Pleas Court Trial Court Case Nos. 2021 CR 170 C-13; 2022 CR 238 C-12.
KEVIN S. TALEBI, Attorney for Appellee.
APRIL F. CAMPBELL, Attorney for Appellant
OPINION
HUFFMAN, J.
{¶ 1} Brent Michael Grooms appeals from his convictions, following guilty pleas, to one count of aggravated possession of drugs, one count of failure to appear, and one count of assault. Grooms' 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), indicating that he cannot find any potentially meritorious issues to argue and requesting to withdraw as counsel. We advised Grooms that counsel had filed an Anders brief and invited him to file a pro se brief within 60 days. Grooms did not file a brief.
{¶ 2} After independently reviewing the record, we note that the trial court improperly cited R.C. 2929.14(D)(1) and R.C. 2967.28(B) in its judgment entries imposing post-release control, when R.C. 2929.14(D)(2) and R.C. 2967.28(C) applied to Grooms' prison terms for his felonies of the fourth and fifth degree. However, this was a purely technical error. The matter is remanded for the court to issue nunc pro tunc entry to correct the clerical error. The judgments of the trial court are affirmed in all other respects.
Procedural History
{¶ 3} Grooms was indicted on August 2, 2021, in Champaign C.P. No. 2021 CR 170, on one count of aggravated possession of drugs. He pled not guilty on August 4, 2021. Grooms was released on his own recognizance. On August 16, 2021, Grooms filed a motion for intervention in lieu of conviction. On the same day, he failed to appear for a scheduling conference, and the court issued a capias for his arrest and suspended his bond.
{¶ 4} On August 30, 2021, Grooms was indicted for failure to appear as required by his recognizance in Case No. 2021 CR 170. Grooms pled not guilty on September 8, 2022, having been an absconder from August 2021 until September 5, 2022. At a scheduling conference on September 14, 2022, Grooms orally requested to withdraw his motion for intervention in lieu of conviction, and the court granted the request.
{¶ 5} On October 17, 2022, Grooms pled guilty to aggravated possession of drugs and failure to appear. At the plea hearing, Grooms admitted that he had violated his bond on August 16, 2021. A presentence investigation ("PSI") was ordered. The court found that Grooms had violated his bond and ordered him to remain in the Tri-County Jail.
{¶ 6} Grooms was sentenced on November 22, 2022. On that date, Grooms plead guilty to a bill of information filed the previous day which contained the misdemeanor assault count in Champaign C.P. No. 2022 CR 238. A PSI was waived in the misdemeanor case. The court sentenced Grooms to nine months for aggravated possession of drugs and 18 months for failure to appear, to be served consecutively, in Case No. 2021 CR 170. In Case No. 2022 CR 238, the court imposed 180 days in the Tri County Jail for assault, to be served concurrently with the sentences in Case No. 2021 CR 170. The trial court also imposed fines in both cases.
Anders Standard
{¶ 7} Upon the filing of an Anders brief, an appellate court has a duty to determine, "after a full examination of the proceedings," whether the appeal is, in fact, "wholly frivolous." Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one about which, "on the facts and law involved, no responsible contention can be made that offers a basis for reversal." State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders brief and appoint new counsel to represent the appellant. See State v. Moody, 2d Dist. Montgomery No. 28389, 2021-Ohio-396, ¶ 4.
Anders Analysis
{¶ 8} Counsel for Grooms identifies two potential issues for purposes of appeal. The State did not file a responsive brief. The first potential issue is whether the trial court erred in accepting Grooms' guilty pleas in both cases.
{¶ 9} Regarding Grooms' felonies, it is well-settled that "[d]ue process requires that a defendant's plea be knowing, intelligent and voluntary." State v. McCain, 2d Dist. Champaign No. 2020-CA-16, 2021 -Ohio-1605, ¶ 6, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. "In conducting the plea colloquy, the trial judge 'must convey accurate information to the defendant so that the defendant can understand the consequences of his or her decision to enter a valid plea.'" State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, ¶ 30, quoting Clark at ¶ 26. Compliance with Crim.R. 11 (C) ensures compliance with this constitutional mandate. Moody at ¶ 6, citing State v. Cole, 2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12.
{¶ 10} "Crim R. 11 (C) requires that a defendant be advised of certain constitutional rights, and strict compliance with this part of the rule is required." State v. Hutchins, 2d Dist. Clark No. 2021-CA-22, 2021-Ohio-4334, ¶ 7, citing State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5. "Where a trial court fails to strictly comply with Crim.R. 11(C)(2)(c), the defendant's plea should be deemed invalid on appeal." (Citations omitted.) Id.
Crim.R. 11(C)(2)(a) requires that a trial court determine whether a defendant is "making [her] plea voluntarily," and Crim.R. 11(C)(2)(b) requires that the court inform the defendant of the consequences of the plea. Given that these parts of the rule relate to nonconstitutional issues, the "defendant must affirmatively show prejudice to invalidate [her] plea" where the trial court fails to comply fully with Crim.R. 11(C)(2)(a)-(b). (Citation omitted.) State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 14; State v. Rogers, 2020-Ohio-4102, 157 N.E.3d 142, ¶ 16 (12th Dist.). To show that he was prejudiced by the trial court's partial noncompliance with Crim.R. 11(C)(2)(a)-(b), the defendant must demonstrate that she "would [not] otherwise have entered the plea." State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5. Where a trial court completely fails to comply with Crim.R. 11(C)(2)(a)-(b), however, a defendant's plea should be invalidated on appeal, and the defendant need not show prejudice. Dangler at ¶ 14; Rogers at ¶ 16. Hutchins at ¶ 8.
{¶ 11} Our thorough review of the pleas reveals that the trial court strictly complied with Crim.R. 11(C), and there is no suggestion in the record that Grooms' pleas to aggravated possession and failure to appear were not knowing, intelligent and voluntary. Grooms advised the court that he felt he had been given all the information to which he was entitled so that his pleas were knowing, intelligent, and voluntary. We conclude that any argument regarding Crim.R.11(C) or that Grooms' pleas were otherwise less than knowing, intelligent, and voluntary would be wholly frivolous.
{¶ 12} Regarding the assault offense, Crim.R.11(E) applied to Grooms' plea hearing. Crim.R. 11 (E) provides that, in misdemeanor cases involving petty offenses, as defined in Crim.R. 2(D), the trial court shall not accept a guilty plea "without first addressing the defendant personally and informing the defendant of the effect of the pleas of guilty, no contest, and not guilty and determining that the defendant is making the plea voluntarily." The record reflects that the court informed Grooms that his guilty plea to assault was a complete admission of guilt. We conclude that any argument regarding Crim.R. 11 (E) would be wholly frivolous.
{¶ 13} Grooms' second potential issue is whether the trial court erred in sentencing him in both cases. Specifically, Grooms asserts that "this Court must determine whether the sentences should have been merged, are contrary to law under R.C. 2953.08, whether jail time credit was given, and whether post-release control was properly imposed."
{¶ 14} As we have previously noted:
"When reviewing felony sentences, a court of appeals must apply the standard of review set forth in R.C. 2953.08(G)." State v. Farra, 2d Dist. Montgomery No. 28950, 2022-Ohio-1421, ¶ 73. In accordance with that statute, an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it clearly and convincingly finds either: (1) the record does not support the sentencing
court's findings under certain enumerated statutes (including R.C. 2929.14(C)(4), which concerns the imposition of consecutive sentences); or (2) the sentence is otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, citing R.C. 2953.08(G)(2). "Clear and convincing evidence is that measure or degree of proof * * * which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Id. at ¶ 22, citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. State v. Williams, 2d Dist. Greene No. 2021-CA-30, 2022-Ohio-2897, ¶ 18.
{¶ 15} In imposing sentence, the trial court indicated that it had considered R.C. 2929.11 and R.C. 2929.12. It further considered the PSI, which included Grooms' criminal history and a law enforcement narrative in Case No. 2022 CR 238. Grooms acknowledged that he had previously served a term in prison. The court found that it had the discretion "to impose imprisonment under R.C. 2929.13(B)(1)(b) findings of bond violation, prior prison term, and commission of the offense while on bond or probation."
{¶ 16} We agree with appellate counsel that the aggravated possession offense and the failure to appear were not subject to merger, as the trial court found, pursuant to the analysis in State v. Ruff, 143-Ohio-995, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31 ("(1) Were the offenses of dissimilar import or significance? (2) Were they committed separately? And (3) Were they committed with separate animus or motivation?"). As counsel asserts, because "each offense for which Grooms pleaded guilty was a separate act on a separate date with separate victims," the offenses were not subject to merger. We conclude that any argument regarding merger would be wholly frivolous.
{¶ 17} We further conclude that Grooms' felony sentences are not contrary to law. R.C. 2929.14(A)(4) provides that, for a felony of the fourth degree, "the prison term shall be a definite term of six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. R.C. 2929.14(A)(5) provides that, for a felony of the fifth degree, "the prison term shall be a definite term of six, seven, eight, nine, ten, eleven, or twelve months."
{¶ 18} Regarding the misdemeanor sentence, the court indicated that it had considered the purposes and principles of sentencing set forth in R.C. 2929.21(A), (B), and (C). R.C. 2929.24 governs misdemeanor jail terms and provides that, for a misdemeanor of the first degree, the jail term shall not be "more than one hundred eighty-days." Grooms' jail term was also within the statutory range.
{¶ 19} "Where, for whatever reason, a defendant remains in jail prior to his trial, he must be given credit on the sentence ultimately imposed for all periods of actual confinement on that charge." State v. Russell, 2d Dist. Montgomery No. 26503, 2015-Ohio-3373, ¶ 37. This principle is codified in R.C. 2967.191, which directs the Ohio Department of Rehabilitation and Correction to reduce prison sentences based on jail-time credit related to the offense for which the defendant was sentenced. R.C. 2967.191(A) provides:
The department of rehabilitation and correction shall reduce the prison term of a prisoner * * * by the total number of days that the prisoner was confined
for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner's competence to stand trial or sanity, confinement while awaiting transportation to the place where the prisoner is to serve the prisoner's prison term, [and] as determined by the sentencing court under [R.C. 2929.19(B)(2)(g)(i)] * * *
{¶ 20} When a trial court imposes a prison term for a felony in accordance with R.C. 2929.19(B)(2)(g)(i), it must "[determine, notify the offender of, and include in the sentencing entry the total number of days, including the sentencing date but excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced * * *."
{¶ 21} At disposition, the court notified Grooms that he had 78 days of jail time credit, and the judgment entry of conviction that was filed in each case stated that the court awarded Grooms 78 days of jail time credit as of November 21, 2022, from September 5, 2022. We conclude that any argument regarding jail time credit would be wholly frivolous.
{¶ 22} Regarding post-release control, a "trial court is required to notify the offender at the sentencing hearing about post-release control, and is further required to incorporate the specifics of that notice into its judgment of conviction setting forth the sentence the court imposed." State v. Terry, 2d Dist. Darke No. 2009-CA-5, 2010-Ohio-5391, ¶ 14. The court advised Grooms that he was subject to a discretionary period of post-release control imposed by the Ohio Parole Board for up to two years after his release from prison, and the notice was also included in the judgment entry of conviction. We note, however, that the court cited R.C. 2929.14(D)(1) and R.C. 2967.28(B) in the judgment entry of conviction. R.C. 2929.14(D)(1) provides:
If a court imposes a prison term, other than a term of life imprisonment, for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is an offense of violence and that is not a felony sex offense, it shall include in the sentence a requirement that the offender be subject to a period of postrelease control after the offender's release from imprisonment, in accordance with section 2967.28 of the Revised Code. * * *
{¶ 23} Grooms' offenses were felonies of the fourth and fifth degree, and R.C. 2929.14(D)(2) provides:
If a court imposes a prison term for a felony of the third, fourth, or fifth degree that is not subject to division (D)(1) of this section, it shall include in the sentence a requirement that the offender be subject to a period of post-release control after the offender's release from imprisonment, in accordance with that division, if the parole board determines that a period of post-release control is necessary.
{¶ 24} Further, R.C. 2967.28(B) provides:
Each sentence to a prison term, other than a term of life imprisonment, for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is an
offense of violence and is not a felony sex offense shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender's release from imprisonment.
{¶ 25} R.C. 2967.28(C) provides:
Any sentence to a prison term for a felony of the third, fourth, or fifth degree that is not subject to division (B)(1) or (4) of this section shall include a requirement that the offender be subject to a period of post-release control of up to two years after the offender's release from imprisonment, if the parole board, in accordance with division (D) of this section, determines that a period of post-release control is necessary for that offender.
{¶ 26} Although not a substantive concern, and purely a clerical matter, the court improperly cited R.C. 2929.14(D)(1) and R.C. 2967.28(B) in its judgment entry imposing discretionary post-release control. Pursuant to Crim.R. 36, "[clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time." Consequently, we will remand the matter for the trial court to file a nunc pro tunc judgment entry of conviction properly referencing R.C. 2929.14(D)(2) and R.C. 2967.28(C) in the imposition of postrelease control.
Conclusion
{¶ 27} In addition to reviewing appellate counsel's potential assignments of error, and consistent with our duty under Anders, we have independently reviewed the entire record to determine if there are any non-frivolous appellate issues. This review included transcripts of the plea hearing and disposition and the PSI. In doing so, we found no issues with arguable merit for Grooms to advance on appeal. As such, the judgments are affirmed, and the matter is remanded to the trial court for correction of the judgment entry via a nunc pro tunc entry.
WELBAUM, P.J. and TUCKER, J., concur.