[Cite as State v. Back, 2020-Ohio-451.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : RICKIE BACK, : Case No. 2019-COA-028 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 19-CRI-045
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 10, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL RUTH R. FISCHBEIN-COHEN Ashland County Prosecuting Attorney 3552 Severn Road Cleveland, Ohio 44118 By: COLE F. OBERLI Assistant Prosecuting Attorney 110 Cottage Street Ashland, Ohio 44805 Ashland County, Case No. 2019-COA-028 2
Baldwin, J.
{¶1} Defendant-appellant Rickie Back appeals from the July 3, 2019 Judgment
Entry-Sentencing of the Ashland County Court of Common Pleas. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 15, 2019, the Ashland County Grand Jury indicted appellant
on two counts of non-support of dependents in violation of R.C. 2919.21, felonies of the
fifth degree. At his arraignment on March 19, 2019, appellant entered a plea of not guilty
to the charges.
{¶3} Thereafter, on May 31, 2019, appellant withdrew his former not guilty plea
and entered a plea of guilty to Count One. The trial court granted appellee’s motion to
dismiss the remaining count. As memorialized in a Judgment Entry-Sentencing filed on
July 3, 2019, appellant was sentenced to nine months in prison.
{¶4} Appellant now raises the following assignments of error on appeal:
{¶5} “I. THE DEFENDANT DID NOT MAKE THE WITHIN PLEA KNOWINGLY
AND INTELLIGENTLY AS REQUIRED UNDER CRIMINAL RULE 11.”
{¶6} “II. IT WAS ERROR TO IMPOSE THE WITHIN SENTENCE IN
DEROGATION OF R.C. 2929.11.”
I
{¶7} In his first assignment of error, Appellant argues that his no contest plea
was not made knowingly, intelligently or voluntarily. We disagree. Ashland County, Case No. 2019-COA-028 3
{¶8} Appellant specifically contends that his plea was not made knowingly and
intelligently because he was on medications for anxiety and depression at the time of the
plea hearing.
{¶9} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660
N.E.2d 450; see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 7. To that end, Crim.R. 11 sets forth certain constitutional and procedural
requirements with which a trial court must comply prior to accepting a guilty or no contest
plea.
{¶10} Crim.R. 11(C) states, in relevant part, as follows:
{¶11} (C) Pleas of Guilty and No Contest in Felony Cases…..
{¶12} (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:
{¶13} (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.
{¶14} (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. Ashland County, Case No. 2019-COA-028 4
{¶15} (c) Informing the defendant and determining that the defendant understands
that by the plea the defendant is waiving the rights 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} A determination of whether a plea is knowing, intelligent, and voluntary is
based upon a review of the record. State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-
130, 595 N.E.2d 251. If a criminal defendant claims that his plea was not knowingly,
voluntarily, and intelligently made, the reviewing court must review the totality of the
circumstances in order to determine whether or not the defendant's claim has merit. State
v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶17} In the case sub judice, the trial court complied with Crim.R. 11. After
appellant advised the trial court that he was taking medication for depression and anxiety,
the following discussion took place on the record:
{¶18} THE COURT: Are you taking medications, over-the-counter or
prescriptions?
{¶19} MR. BACK: Prescriptions.
{¶20} THE COURT: What would that be?
{¶21} MR. BACK: Cholesterol, high blood, depression, anxiety, that is about it I
think.
{¶22} THE COURT: Do any of those prescription medications impair your ability
to comprehend or understand things?
{¶23} MR. BACK: No, no, sir. Ashland County, Case No. 2019-COA-028 5
{¶24} THE COURT: Are there any prescription medications that you are supposed
to [SIC] taking but which you are not?
{¶25} MR. BACK: No, sir.
{¶26} THE COURT: And have you ever been determined by any court to be
mentally incompetent or incapable of handling your own affairs?
{¶27} MR. BACK: No, sir.
{¶28} THE COURT: Then the record should reflect that Mr. Back appears to be
mature alert and reasonably educated, not under the adverse influence of any alcoholic
beverages or drugs, and fully capable of understanding today’s proceeding’s.
{¶29} Transcript of plea hearing at 5-6. When asked if he was entering the plea
voluntarily and under his own free will, appellant indicted that he was. In addition,
appellant acknowledged that he signed a written waiver and plea of guilty document.
{¶30} We further find that there is no evidence in the record supporting appellant’s
assertion that he was “mentally incapable of fully understanding the plea discussion and
discourse” due to prescription medication.
{¶31} Appellant’s first assignment of error is, therefore, overruled.
II
{¶32} Appellant, in his second assignment of error, contends that the trial court in
this matter imposed a sentence that was more than necessary to accomplish the
purposes of sentencing in derogation of R.C. 2929.11.
{¶33} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231 ¶ 1.
Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or Ashland County, Case No. 2019-COA-028 6
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if the court finds by clear and convincing evidence
“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the
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[Cite as State v. Back, 2020-Ohio-451.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : RICKIE BACK, : Case No. 2019-COA-028 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 19-CRI-045
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 10, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL RUTH R. FISCHBEIN-COHEN Ashland County Prosecuting Attorney 3552 Severn Road Cleveland, Ohio 44118 By: COLE F. OBERLI Assistant Prosecuting Attorney 110 Cottage Street Ashland, Ohio 44805 Ashland County, Case No. 2019-COA-028 2
Baldwin, J.
{¶1} Defendant-appellant Rickie Back appeals from the July 3, 2019 Judgment
Entry-Sentencing of the Ashland County Court of Common Pleas. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 15, 2019, the Ashland County Grand Jury indicted appellant
on two counts of non-support of dependents in violation of R.C. 2919.21, felonies of the
fifth degree. At his arraignment on March 19, 2019, appellant entered a plea of not guilty
to the charges.
{¶3} Thereafter, on May 31, 2019, appellant withdrew his former not guilty plea
and entered a plea of guilty to Count One. The trial court granted appellee’s motion to
dismiss the remaining count. As memorialized in a Judgment Entry-Sentencing filed on
July 3, 2019, appellant was sentenced to nine months in prison.
{¶4} Appellant now raises the following assignments of error on appeal:
{¶5} “I. THE DEFENDANT DID NOT MAKE THE WITHIN PLEA KNOWINGLY
AND INTELLIGENTLY AS REQUIRED UNDER CRIMINAL RULE 11.”
{¶6} “II. IT WAS ERROR TO IMPOSE THE WITHIN SENTENCE IN
DEROGATION OF R.C. 2929.11.”
I
{¶7} In his first assignment of error, Appellant argues that his no contest plea
was not made knowingly, intelligently or voluntarily. We disagree. Ashland County, Case No. 2019-COA-028 3
{¶8} Appellant specifically contends that his plea was not made knowingly and
intelligently because he was on medications for anxiety and depression at the time of the
plea hearing.
{¶9} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660
N.E.2d 450; see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 7. To that end, Crim.R. 11 sets forth certain constitutional and procedural
requirements with which a trial court must comply prior to accepting a guilty or no contest
plea.
{¶10} Crim.R. 11(C) states, in relevant part, as follows:
{¶11} (C) Pleas of Guilty and No Contest in Felony Cases…..
{¶12} (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:
{¶13} (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.
{¶14} (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. Ashland County, Case No. 2019-COA-028 4
{¶15} (c) Informing the defendant and determining that the defendant understands
that by the plea the defendant is waiving the rights 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} A determination of whether a plea is knowing, intelligent, and voluntary is
based upon a review of the record. State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-
130, 595 N.E.2d 251. If a criminal defendant claims that his plea was not knowingly,
voluntarily, and intelligently made, the reviewing court must review the totality of the
circumstances in order to determine whether or not the defendant's claim has merit. State
v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶17} In the case sub judice, the trial court complied with Crim.R. 11. After
appellant advised the trial court that he was taking medication for depression and anxiety,
the following discussion took place on the record:
{¶18} THE COURT: Are you taking medications, over-the-counter or
prescriptions?
{¶19} MR. BACK: Prescriptions.
{¶20} THE COURT: What would that be?
{¶21} MR. BACK: Cholesterol, high blood, depression, anxiety, that is about it I
think.
{¶22} THE COURT: Do any of those prescription medications impair your ability
to comprehend or understand things?
{¶23} MR. BACK: No, no, sir. Ashland County, Case No. 2019-COA-028 5
{¶24} THE COURT: Are there any prescription medications that you are supposed
to [SIC] taking but which you are not?
{¶25} MR. BACK: No, sir.
{¶26} THE COURT: And have you ever been determined by any court to be
mentally incompetent or incapable of handling your own affairs?
{¶27} MR. BACK: No, sir.
{¶28} THE COURT: Then the record should reflect that Mr. Back appears to be
mature alert and reasonably educated, not under the adverse influence of any alcoholic
beverages or drugs, and fully capable of understanding today’s proceeding’s.
{¶29} Transcript of plea hearing at 5-6. When asked if he was entering the plea
voluntarily and under his own free will, appellant indicted that he was. In addition,
appellant acknowledged that he signed a written waiver and plea of guilty document.
{¶30} We further find that there is no evidence in the record supporting appellant’s
assertion that he was “mentally incapable of fully understanding the plea discussion and
discourse” due to prescription medication.
{¶31} Appellant’s first assignment of error is, therefore, overruled.
II
{¶32} Appellant, in his second assignment of error, contends that the trial court in
this matter imposed a sentence that was more than necessary to accomplish the
purposes of sentencing in derogation of R.C. 2929.11.
{¶33} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231 ¶ 1.
Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or Ashland County, Case No. 2019-COA-028 6
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if the court finds by clear and convincing evidence
“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the
sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)–(b). “An appellate court will
not find a sentence 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 postrelease control, and sentences the defendant within the permissible
statutory range.” State v. Hall, 5th Dist. Richland No. 15CA112, 2017–Ohio–592, ¶ 9,
citing State v. Ahlers, 12th Dist. Butler No. CA2015–06–100, 2016–Ohio–2890, ¶ 8, and
State v. Moore, 12th Dist. Clermont No. CA2014–02–016, 2014–Ohio–5191, ¶ 6.
{¶34} R.C. 2929.11 governs the overriding purposes of felony sentencing and
states, in relevant part, as follows:
(A) A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of felony
sentencing are to protect the public from future crime by the offender and
others and to punish the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To achieve
those 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. Ashland County, Case No. 2019-COA-028 7
(B) A sentence imposed for a felony shall be reasonably calculated to
achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders.
{¶35} 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.
{¶36} Among the various factors that the trial court must consider and balance
under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the
victim as a result of the offense; (2) whether the offender has a history of criminal
convictions; (3) whether the offender has not responded favorably to sanctions previously
imposed by criminal convictions; and (4) whether the offender shows genuine remorse
for the offense. R.C. 2929.12.
{¶37} In the case sub judice, the trial court sentenced appellant to nine months
incarceration for a violation of R.C. 2919.21(A), which was within the permissible statutory
range. The trial court, both on the record and in its Entry, stated that it had considered the
purposes of felony sentencing as set forth in R.C. 2929.11 and the provisions of R.C.
Chapter 2929. In sentencing appellant, the trial court took into consideration appellant’s Ashland County, Case No. 2019-COA-028 8
criminal history and his high ORAS score and also stated that appellant had “terror[ized]
the family in an effort to get then to stop pursuing support” and that this was “a more
severe nature of the offense.” Transcript of sentencing hearing at 8.
{¶38} Based on the foregoing, we find that the trial court considered the principles
and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, and
sentenced appellant within the permissible statutory range .
{¶39} Appellant’s second assignment of error is, therefore, overruled.
{¶40} Accordingly, the judgment of the Ashland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Delaney, J. concur.