[Cite as State v. Allen, 2019-Ohio-1664.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-21 : v. : Trial Court Case No. 2018-CR-266 : KATIE M. ALLEN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 3rd day of May, 2019.
JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami County Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 309 North Barron Street, Eaton, Ohio 45320 Attorney for Defendant-Appellant
.............
DONOVAN, J. -2-
{¶ 1} This matter is before the court on Katie M. Allen’s September 11, 2018
notice of appeal. Allen’s appointed counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no potentially
meritorious issues to present on appeal. We notified Allen of counsel’s filing of an
Anders brief and gave her an opportunity to file a pro se brief, but she has not done so.
{¶ 2} Allen appeals her conviction, following her guilty pleas, of one count of
aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2)/(C)(1)(d) (Count One),
a felony of the second degree, and one count of trafficking in heroin, in violation of R.C.
2925.05(A)(2)/(C)(6)(a) (Count Two), a felony of the fifth degree.
{¶ 3} On June 26, 2018, the trial court held a hearing at which the prosecutor
indicated that Allen consented to being prosecuted pursuant to a proposed bill of
information and to waiving prosecution by indictment. The bill of information charged
Allen with aggravated trafficking in methamphetamine (with forfeiture specifications) and
with trafficking in heroin, as described above. The prosecutor further advised the court
that, in exchange for Allen’s guilty plea, the State dismissed a second fifth-degree felony
trafficking charge and agreed to forego prosecution of additional trafficking charges which
were under investigation. The State also agreed “not to enhance the felony two to a
felony one, with a school zone [sic].” Finally, the prosecutor indicated that Allen had
agreed to the forfeitures. Allen then confirmed her understanding of the plea agreement
as recited by the prosecutor, and she acknowledged that there was no agreement
regarding her sentence.
{¶ 4} The court advised Allen of her right to a grand jury proceeding and explained -3-
the nature of a bill of information, and Allen signed a waiver of indictment form. The court
then placed Allen under oath. In response to questions from the court, Allen advised the
court that she was born in 1993, that she possessed a GED, and that she could read and
write the English language. She stated that she was not under the influence of any drugs
or alcohol, and that she had not been threatened or promised anything to induce her
pleas. She acknowledged having adequate time to discuss her pleas with her lawyer,
and that counsel answered all of her questions after going over all the charges and
specifications with her. Allen stated that she was satisfied with her counsel’s advice.
She indicated to the court that she understood the meaning and the nature of the charges
and specifications.
{¶ 5} The court addressed Counts One and Two, concurrent and consecutive
sentencing, and the maximum sentences for each count. The court advised Allen that
the sentence for Count One was mandatory, and that it carried a mandatory fine. The
court advised Allen regarding post-release control. The court next advised Allen of all of
her constitutional rights prior to accepting her pleas, and Allen acknowledged her
understanding thereof. She acknowledged her signature on the plea forms, and she
indicated that she did not have any questions for counsel or the court. The court found
that Allen was “making a knowing, intelligent and voluntary decision to tender pleas of
guilty to Count One, including the two forfeiture specifications and to Count Two in the bill
of information.” The court further found that Allen had been informed of all of her
constitutional rights, and that she understood the nature of the charges, the effects of
pleas of guilty, and the possible penalties which could be imposed. The court ordered a
presentence investigation report. -4-
{¶ 6} Allen was sentenced on August 13, 2018. Allen was sentenced to five years
in prison on Count One and to one year on Court Two, to be served concurrently.
Pursuant to forfeiture specifications on Count One, a 1998 Ford Taurus and $555 were
forfeited to the State. The court waived the mandatory fine due to Allen’s indigency.
{¶ 7} Allen’s appellate counsel asserts that he “has conducted an examination of
the record and finds no merit to any claim of error” sufficient to overturn Allen’s conviction.
{¶ 8} This court has previously discussed Anders, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493, as follows:
Pursuant to Anders, we must determine, “after a full examination of
all the proceedings,” whether the appeal is “wholly frivolous.” [Anders] at
744; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
An issue is not frivolous merely because the prosecution can be expected
to present a strong argument in reply. State v. Pullen, 2d Dist. Montgomery
No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that
presents issues lacking arguable merit, which means that, “on the facts and
law involved, no responsible contention can be made that it offers a basis
for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-
3242, ¶ 8, citing Pullen at ¶ 4. If we find that any issue * * * is not wholly
frivolous, we must appoint different appellate counsel to represent the
defendant. Id. at ¶ 7.
State v. Ferguson, 2d Dist. Clark No. 2018-CA-71, 2019-Ohio-1143, ¶ 3.
{¶ 9} Counsel for Allen asserts one potential assignment of error on appeal:
THE TRIAL COURT ERRED BY ACCEPTING THE APPELLANT’S -5-
GUILTY PLEA ON THE BASIS THAT HER ADMISSIONS WHERE SUCH
[sic] AN ADMISSION WAS NOT MADE KNOWINGLY, VOLUNTARILY,
INTELLIGENTLY AND THEREBY VIOLATED HER RIGHTS AFFORDED
HER UNDER THE CONSTITUTION OF THE UNITED STATES AND THE
STATE OF OHIO.
{¶ 10} Appellate counsel asserts that Allen was not placed under oath at her plea
hearing and that the trial court “failed to ask Ms. Allen if she was satisfied with the
representation and legal services rendered by counsel.” Counsel also asserts that the
trial court “never specifically stated the appropriate code section under the Ohio Revised
Code” under which these charges were filed.
{¶ 11} We have reviewed the entire record, including the plea and sentencing
transcripts and the presentence investigation report. This review has not revealed any
potentially meritorious appellate issues. Contrary to Allen’s assertions, she was placed
under oath after signing the waiver of indictment. Further, the court asked Allen if she
was satisfied with her counsel’s representation, and she responded affirmatively. Allen
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[Cite as State v. Allen, 2019-Ohio-1664.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-21 : v. : Trial Court Case No. 2018-CR-266 : KATIE M. ALLEN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 3rd day of May, 2019.
JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami County Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 309 North Barron Street, Eaton, Ohio 45320 Attorney for Defendant-Appellant
.............
DONOVAN, J. -2-
{¶ 1} This matter is before the court on Katie M. Allen’s September 11, 2018
notice of appeal. Allen’s appointed counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no potentially
meritorious issues to present on appeal. We notified Allen of counsel’s filing of an
Anders brief and gave her an opportunity to file a pro se brief, but she has not done so.
{¶ 2} Allen appeals her conviction, following her guilty pleas, of one count of
aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2)/(C)(1)(d) (Count One),
a felony of the second degree, and one count of trafficking in heroin, in violation of R.C.
2925.05(A)(2)/(C)(6)(a) (Count Two), a felony of the fifth degree.
{¶ 3} On June 26, 2018, the trial court held a hearing at which the prosecutor
indicated that Allen consented to being prosecuted pursuant to a proposed bill of
information and to waiving prosecution by indictment. The bill of information charged
Allen with aggravated trafficking in methamphetamine (with forfeiture specifications) and
with trafficking in heroin, as described above. The prosecutor further advised the court
that, in exchange for Allen’s guilty plea, the State dismissed a second fifth-degree felony
trafficking charge and agreed to forego prosecution of additional trafficking charges which
were under investigation. The State also agreed “not to enhance the felony two to a
felony one, with a school zone [sic].” Finally, the prosecutor indicated that Allen had
agreed to the forfeitures. Allen then confirmed her understanding of the plea agreement
as recited by the prosecutor, and she acknowledged that there was no agreement
regarding her sentence.
{¶ 4} The court advised Allen of her right to a grand jury proceeding and explained -3-
the nature of a bill of information, and Allen signed a waiver of indictment form. The court
then placed Allen under oath. In response to questions from the court, Allen advised the
court that she was born in 1993, that she possessed a GED, and that she could read and
write the English language. She stated that she was not under the influence of any drugs
or alcohol, and that she had not been threatened or promised anything to induce her
pleas. She acknowledged having adequate time to discuss her pleas with her lawyer,
and that counsel answered all of her questions after going over all the charges and
specifications with her. Allen stated that she was satisfied with her counsel’s advice.
She indicated to the court that she understood the meaning and the nature of the charges
and specifications.
{¶ 5} The court addressed Counts One and Two, concurrent and consecutive
sentencing, and the maximum sentences for each count. The court advised Allen that
the sentence for Count One was mandatory, and that it carried a mandatory fine. The
court advised Allen regarding post-release control. The court next advised Allen of all of
her constitutional rights prior to accepting her pleas, and Allen acknowledged her
understanding thereof. She acknowledged her signature on the plea forms, and she
indicated that she did not have any questions for counsel or the court. The court found
that Allen was “making a knowing, intelligent and voluntary decision to tender pleas of
guilty to Count One, including the two forfeiture specifications and to Count Two in the bill
of information.” The court further found that Allen had been informed of all of her
constitutional rights, and that she understood the nature of the charges, the effects of
pleas of guilty, and the possible penalties which could be imposed. The court ordered a
presentence investigation report. -4-
{¶ 6} Allen was sentenced on August 13, 2018. Allen was sentenced to five years
in prison on Count One and to one year on Court Two, to be served concurrently.
Pursuant to forfeiture specifications on Count One, a 1998 Ford Taurus and $555 were
forfeited to the State. The court waived the mandatory fine due to Allen’s indigency.
{¶ 7} Allen’s appellate counsel asserts that he “has conducted an examination of
the record and finds no merit to any claim of error” sufficient to overturn Allen’s conviction.
{¶ 8} This court has previously discussed Anders, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493, as follows:
Pursuant to Anders, we must determine, “after a full examination of
all the proceedings,” whether the appeal is “wholly frivolous.” [Anders] at
744; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
An issue is not frivolous merely because the prosecution can be expected
to present a strong argument in reply. State v. Pullen, 2d Dist. Montgomery
No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that
presents issues lacking arguable merit, which means that, “on the facts and
law involved, no responsible contention can be made that it offers a basis
for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-
3242, ¶ 8, citing Pullen at ¶ 4. If we find that any issue * * * is not wholly
frivolous, we must appoint different appellate counsel to represent the
defendant. Id. at ¶ 7.
State v. Ferguson, 2d Dist. Clark No. 2018-CA-71, 2019-Ohio-1143, ¶ 3.
{¶ 9} Counsel for Allen asserts one potential assignment of error on appeal:
THE TRIAL COURT ERRED BY ACCEPTING THE APPELLANT’S -5-
GUILTY PLEA ON THE BASIS THAT HER ADMISSIONS WHERE SUCH
[sic] AN ADMISSION WAS NOT MADE KNOWINGLY, VOLUNTARILY,
INTELLIGENTLY AND THEREBY VIOLATED HER RIGHTS AFFORDED
HER UNDER THE CONSTITUTION OF THE UNITED STATES AND THE
STATE OF OHIO.
{¶ 10} Appellate counsel asserts that Allen was not placed under oath at her plea
hearing and that the trial court “failed to ask Ms. Allen if she was satisfied with the
representation and legal services rendered by counsel.” Counsel also asserts that the
trial court “never specifically stated the appropriate code section under the Ohio Revised
Code” under which these charges were filed.
{¶ 11} We have reviewed the entire record, including the plea and sentencing
transcripts and the presentence investigation report. This review has not revealed any
potentially meritorious appellate issues. Contrary to Allen’s assertions, she was placed
under oath after signing the waiver of indictment. Further, the court asked Allen if she
was satisfied with her counsel’s representation, and she responded affirmatively. Allen
further advised the court that she understood the nature and meaning of the charges
against her, and the court so found. Allen’s bill of information, which she indicated she
understood, included the relevant sections of the Revised Code for each offense, and the
trial court’s failure to recite those sections at the plea hearing does not present a
meritorious issue for appeal.
{¶ 12} We have reviewed the entire record and conducted our independent
review, pursuant to Penson, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We agree with -6-
appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial
court's judgment will be affirmed.
HALL, J. and TUCKER, J., concur.
Copies sent to:
Janna L. Parker Brian A. Muenchenbach Katie M. Allen Hon. Stacy M. Wall