Opinion
24 CA 0032
09-19-2024
STATE OF OHIO Plaintiff-Appellee v. KATELYNN MORGAN Defendant-Appellant
For Plaintiff-Appellee TRICIA M. MOORE For Defendant-Appellant TODD W. BARSTOW
Appeal from the Municipal Court, Case No. 2023CRB683
For Plaintiff-Appellee
TRICIA M. MOORE
For Defendant-Appellant
TODD W. BARSTOW
Judges: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J.
OPINION
King, J.
{¶ 1} Defendant-Appellant Katelynn Morgan appeals the February 13, 2024 judgment of conviction and sentence of the Licking County Municipal Court. Plaintiff-Appellee is the state of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 12, 2022, Trooper Capps of the Ohio State Highway Patrol was dispatched to a crash on State Route 13 in Licking County. The report indicated two females were fighting in the middle of the road.
{¶ 3} Upon Trooper Capps' arrival on the scene he noted one vehicle with no visible damage and one female, later identified as Kayla Graves, standing near the car with facial injuries. Graves reported that her injuries were inflicted by appellant Morgan who was also on the scene. A bystander corroborated Graves' report stating he witnessed two females fighting in the middle of the road with Morgan on top of Graves. Morgan had no visible injuries. Trooper's Report, docket item 4.
{¶ 4} Graves reported that she and Morgan, who is her aunt, were out drinking. On the drive home an argument and physical altercation took place. Graves reported Morgan pulled the car over and "started freaking out." Id.
{¶ 5} Capps then spoke to Morgan, noting she smelled strongly of alcoholic beverage. She admitted she had been out drinking and was the driver of the car. She stated she had stopped the car and she and Graves got out and fought in the road. Capp asked Morgan to step in front of his cruiser for field sobriety tests to determine if she was okay to drive. Morgan stated several times that she was not okay to drive. Id.
{¶ 6} Capps noted 6 of 6 clues on the horizontal nystagmus test. Asked to preform the walk and turn test, Morgan stopped and stated "I can't, I'm going to be real honest with you I'm kind of drunk." Id. Morgan then stated she would probably blow a 1.9 and further stated she could not do the one-leg stand. Id.
{¶ 7} Morgan was charged with operating a vehicle under the influence of alcohol. She pled not guilty and elected to proceed to a jury trial wherein she testified she was not the driver of the vehicle and had Graves testify that she was the driver. Morgan was acquitted.
{¶ 8} On March 20, 2023, the state filed a complaint charging Morgan with one count of falsification, a misdemeanor of the first degree and one count of obstructing official business, a misdemeanor of the second degree. On February 13, 2024, Morgan appeared with counsel, executed a change-of-plea form explaining the effect of her pleas, and entered pleas of guilty to both charges. The trial court merged the charges and the state elected to proceed to sentencing on the falsification charge. Morgan was sentenced to 90 days local incarceration with 70 days suspended, a $200 fine, and one year community control to include a drug and alcohol assessment. Morgan's sentence was stayed pending appeal.
{¶ 9} Morgan filed an appeal and was appointed counsel. Thereafter, Morgan's attorney filed an Anders brief pursuant to Anders v. California, 386 U.S. 738 (1967). In Anders, the United States Supreme Court held that if, after a conscientious examination of the record, the defendant's counsel concludes that the case is wholly frivolous, then counsel should so advise the court and request permission to withdraw. Id. 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 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.
{¶ 10} On May 7, 2024, Morgan's counsel filed a motion to withdraw and indicted he sent Morgan a copy of the Anders brief and the relevant transcripts. By judgment entry filed May 13, 2024, this court noted counsel had filed an Anders brief and indicated to the court that he had served Morgan with the brief. Accordingly, this court notified Morgan via certified U.S. Mail that she "may file a pro se brief in support of the appeal within 60 days from the date of this entry." Morgan did not do so, even after being granted an extension of time to file her brief.
{¶ 11} The matter is now before this court for consideration of counsel's Anders brief. Counsel urges this court to review the following:
I
{¶ 12} "THE TRIAL COURT ERRED IN ACCEPTING MORGAN'S GUILTY PLEA UNDER CRIMINAL RULE 11 AND ERRED IN SENTENCING MORGAN."
{¶ 13} In the sole proposed assignment of error, counsel suggests the trial court erred in accepting Morgan's guilty plea under Crim.R. 11 and erred in sentencing her. We disagree.
Morgan's Pleas
{¶ 14} The level of offense to which the defendant is pleading determines a trial court's obligations when accepting a plea. State v. Rice, 2021-Ohio-988, ¶ 36 (5th Dist.), citing State v. Smith, 2016-Ohio-3496, ¶ 6 (9th Dist.). If a misdemeanor case involves a serious offense, the court must address the defendant personally, inform her of the effect of her plea, determine that she is making the plea voluntarily, and, if she is unrepresented, address her right to counsel. Crim.R. 11(D). A misdemeanor is a "serious offense" if "the penalty prescribed by law includes confinement for more than six months." Crim.R. 2(C).
{¶ 15} Conversely, if a misdemeanor case involves a petty offense, the plain language of Crim.R. 11(E) requires a trial court to simply inform the defendant of the effect of the plea before accepting the plea. State v. Jones, 2007-Ohio-6093, paragraph one of the syllabus; Crim.R. 11(B)(2).
{¶ 16} Here, Morgan was charged with a petty offense. The trial court informed Morgan that by entering her pleas, she was facing "up to 180 days in jail and up to a $1000 fine." Transcript of plea 3. The trial court also asked Morgan if she had been present when it provided others with their explanation of rights. Morgan agreed that she was and indicated she understood and had no questions regarding her rights. T. 2-3. Morgan further signed a change-of-plea form which stated:
In the presence of my attorney, I hereby acknowledge and state that I have asked the Court for permission to withdraw my previously entered plea of Not Guilty and enter a plea of guilty to the following:
Falsification . . . Maximum Jail sentence 180 days; Maximum Fine Amount $1,000;
Obstructing Official Business . . . Maximum Jail sentence 90 days; Maximum Fine Amount $750;
I understand the following:
That the plea of guilty is a complete admission of my guilt. Further, I understand that I stipulate to a finding of guilt and waive any explanation of circumstances underlying the offense under R.C. 2937.07.
That by pleading guilty, I am waiving my rights to a jury trial, to confront witnesses against me, to have compulsory process for obtaining witnesses in my favor, and to require the Prosecutor to prove my guilt beyond a reasonable doubt. Further, I understand that if I went to trial would not be required to testify . . ."
{¶ 17} Change of plea form, February 13, 2024, docket item 40.
{¶ 18} Based on the foregoing, we find that the trial court complied with Crim.R. 11 as it pertains to petty offenses, and that the trial court did not err in accepting Morgan's guilty pleas.
Morgan's Sentence
{¶ 19} Counsel next suggests we examine whether Morgan's sentence is contrary to law.
{¶ 20} Misdemeanor sentencing is generally left to the sound discretion of the trial court and will not be disturbed upon review if the sentence is within the limits of the applicable statute. State v. Thadur, 2016-Ohio-417 ¶ 11 citing State v. Smith, 2006-Ohio-1558 (9th Dist.) ¶ 21. "Abuse of discretion" means an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). Most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161 (1990). An unreasonable decision is one backed by no sound reasoning process which would support that decision. Id. "It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result." Id.
{¶ 21} When determining the appropriate sentence, the trial court must be guided by the purposes of misdemeanor sentencing which are "to protect the public from future crime by the offender and others and to punish the offender." R.C. 2929.21(A). The trial court must also consider the factors listed in R.C. 2929.22(B)(1) and may consider any other factors that are relevant to achieving the purposes and principles of misdemeanor sentencing. R.C. 2929.22(B)(2).
{¶ 22} The relevant R.C. 2929.22(B)(1) factors include:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender has a history of
persistent criminal activity and that the offender's character and condition reveal a substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender's history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender's conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;
. . .
(e) Whether the offender is likely to commit future crimes in general, in addition to the circumstances described in divisions (B)(1)(b) and (c) of this section:
. . .
{¶ 23} The statute does not mandate that the record state that the trial court considered the applicable factors. There is no requirement that a trial court, in sentencing on misdemeanor offenses, specifically state its reasons on the record. State v. Harpster, 2005-Ohio-1046 (5th Dist.) ¶ 20.
{¶ 24} Morgan was sentenced on the falsification charge, a misdemeanor of the first degree. R.C. 2929.24(A)(1) provides a sentence for a misdemeanor of the first degree shall not exceed 180 days. Morgan was sentenced to 90 days with 70 days suspended.
{¶ 25} Before sentencing Morgan, the trial court noted:
. . . You know sometimes obstructing official business is running away form the police and making them run 20, 30, or 40 yards to catch you. That is obviously the least serious form of the offense in the court's opinion, but to proceed or to pursue this farce and fallacy all the way through trial is almost unheard of and I would concur with the Assistant Prosecutor that it is an egregious waste of both the court's resources as well as the patrol's resources when they could have been better directed at more deserving issues. You know you don't have much of a record here, Ms. Morgan, but there may be some underlying issues which we need to address to make sure that you don't start racking up a number of records and so I so believe additional jail time is warranted and I believe that the amount discussed at the pretrial conference is a reasonable amount. Some would probably say too lenient and some would say too harsh well when nobody gets what they want that is the hallmark of negotiation . . .
{¶ 26} The trial court then ordered Morgan to serve 90 days in jail with 70 days suspended, one year of community control, ordered her to undergo a drug and alcohol assessment, follow up with any recommendations, and abstain from the use of alcohol or drugs.
{¶ 27} Upon review of the record, we find no error in the trial court's sentence. The jail sentence was within the statutory limits for a misdemeanor of the first degree, as was one year of community control. While the trial court did not specifically reference R.C. 2929.21 or 2929.22 when imposing Morgan's sentence, it clearly considered her criminal history, the nature of the offense, and her apparent need for alcohol and/or drug treatment. We conclude the trial court did not abuse its discretion in fashioning Morgan's sentence.
{¶ 28} "Anders equated a frivolous appeal with one that presents issues lacking in arguable merit. ... 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, 2002-Ohio-6788, ¶ 4 (2d Dist.).
{¶ 29} 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 find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the trial court.
{¶ 30} The judgment of the Court of Common Pleas of Licking County, Ohio, is hereby affirmed.
By King, J., Hoffman, P.J. and Wise, J. concur.