State v. Bracey

2018 Ohio 618

• Court: Ohio Court of Appeals
• Decided: February 16, 2018
• Docket: S-16-025
• Status: Published

Opinion

[Cite as State v. Bracey, 2018-Ohio-618.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-16-025

Appellee Trial Court No. 15 CR 792

v.

Karnell L. Bracey DECISION AND JUDGMENT

Appellant Decided: February 16, 2018

*****

Karin L. Coble, for appellant.

SINGER, J.

{¶ 1} Appellant, Karnell L. Bracey, appeals the June 1, 2016 judgment of the

Sandusky County Court of Common Pleas, in which he was sentenced to three years

incarceration for robbery in violation of R.C. 2911.02(A)(3), a felony of the third degree.

Finding no error, we affirm. Background

{¶ 2} Appellant and two codefendants forced their way into an apartment and

committed a robbery. Appellant was indicted on one count of aggravated burglary in

violation of R.C. 2911.11(A)(1), a felony of the first degree.

{¶ 3} Appellant entered a not guilty plea to the aggravated burglary charge.

Appellant’s trial counsel was also appointed to represent a codefendant. As a result of

the potential conflict of interest, appellant requested new trial counsel.

{¶ 4} New counsel was appointed and appellant maintained his not guilty plea.

Appellant later withdrew this plea and, on March 30, 2016, entered a plea of guilty to the

lesser included offense of robbery in violation of R.C. 2911.02(A)(3), a felony of the

third degree.

{¶ 5} At the plea hearing, and based on the written agreement memorializing his

plea, appellant was informed of the effects and nature of his plea, was informed of the

rights waived by his plea, and confirmed his plea was entered into voluntarily and

without coercion.

{¶ 6} The court accepted appellant’s plea, ordered a presentence report, and

scheduled a sentencing hearing. At the hearing, appellant was sentenced to 36 months

incarceration. The court informed appellant that the sentence was necessary and

appropriate in light of the seriousness of the offense and his criminal history. The

sentencing judgment was journalized June 1, 2016. Appellant timely appealed.

2. {¶ 7} His first appellate counsel filed a no-error brief and request to withdraw

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

and 6th Dist.Loc.App.R. 10(G). See State v. Bracey, 6th Dist. Sandusky No. S-16-025,

2017-Ohio-4334, ¶ 1. However, counsel failed to file a transcript we found necessary to

conduct a full examination of the proceedings and to decide if the appeal was indeed

frivolous. Id. at ¶ 2. As a result, we issued an order to appoint new counsel who was to

file the necessary record and a new appellate brief for appellant. Id. at ¶ 3.

Anders Brief

{¶ 8} On July 27, 2017, appellant’s new counsel filed a no-error brief and request

to withdraw pursuant to Anders. Counsel asserts, after thoroughly reviewing the

transcript of proceedings in the trial court and the applicable case law, no meritorious

assignments of error exist. Counsel did submit these two potential assignments of error:

1. Appellant’s plea was unknowing and involuntary.

2. The trial court, in imposing incarceration for the offense, failed to

properly consider the relevant sentencing statutes and the sentence is not

supported by the record.

{¶ 9} The state did not respond and, thus, waived argument. The procedure to be

followed by appointed counsel who desires to withdraw for want of a meritorious,

appealable issue is set forth in Anders, as well as State v. Duncan, 57 Ohio App.2d 93,

385 N.E.2d 323 (8th Dist.1978). See also 6th Dist.Loc.App.R. 10(G).

3. {¶ 10} In Anders, the U.S. Supreme Court found if counsel, after a conscientious

examination of the case, determines it to be wholly frivolous, counsel should so advise

the court and request permission to withdraw. Anders at 744. This request must be

accompanied by a brief identifying anything in the record that could arguably support the

appeal. Id. In addition, counsel must furnish the client with a copy of the brief and

request to withdraw and allow the client sufficient time to raise any matters the client so

chooses. Id. Once the requirements are fulfilled, the appellate court must conduct a full

examination of the proceedings and decide if the appeal is indeed frivolous. Id. If the

appellate court determines the argument is frivolous, it may grant counsel’s request to

withdraw and dismiss the appeal or it may proceed to a decision on the merits. Id.

{¶ 11} Accordingly, we shall proceed with review of the possible errors set forth

by appellant’s counsel as well as the entire record below to determine if this appeal lacks

merit and is, therefore, wholly frivolous.

{¶ 12} Here, we find counsel has satisfied the requirements set forth in Anders.

Appellant has not filed a pro se brief or otherwise responded to counsel’s request to

withdraw. Accordingly, we shall proceed with review of the possible errors set forth by

appellant’s counsel as well as the entire record below to determine if this appeal lacks

arguable merit and is, therefore, wholly frivolous. See Bracey, 6th Dist. Sandusky No.

S-16-025, 2017-Ohio-4334, at ¶ 2.

4. 1. Review of Appellant’s Plea

{¶ 13} A plea in a criminal case must be made knowingly, intelligently, and

voluntarily. See State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,

¶ 7.

{¶ 14} Crim.R. 11(C) requires an oral dialogue between the trial court and

defendant which enables the court to determine fully that the defendant is understanding

his rights and the consequences of his plea of guilty or no contest. See State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8; State v. Caudill, 48 Ohio

St.2d 342, 358 N.E.2d 601 (1976), paragraph two of syllabus.

{¶ 15} With respect to the required colloquy, Crim.R. 11(C)(2) provides:

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.

5. (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 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.

See Crim.R. 11(C)(2)(a)-(c). Accord Veney at ¶ 8-13.

{¶ 16} “Before accepting a guilty or no-contest plea, the court must make the

determinations and give the warnings required by Crim. R. 11(C)(2)(a) and (b) and notify

the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c).” Id. at ¶ 13.

{¶ 17} Looking to the record in this case, including the transcript of the plea

hearing and the written plea agreement, we find counsel and the court advised appellant

of a potential prison term of 9 to 36 months, a potential fine and restitution amount, and a

potential imposition of a community control sanction. See Crim.R. 11(C)(2)(a). The

record reveals appellant was advised of constitutional rights, including the right to jury

trial, to confront witnesses, to have compulsory process, to no self-incrimination, and to

require proof of the robbery beyond a reasonable doubt. See Crim.R. 11(C)(2)(b) and (c).

6. Further, the record confirms appellant entered the plea on his own free will and choice,

and that the prosecutor, bailiff, appellant and counsel all signed the written agreement.

{¶ 18} Based on our review, we find the trial court fully complied with Crim.R.

11. Thus, appellant was not precluded from entering a knowing, intelligent, and

voluntary plea.

2. Review of the Imposed Sentence

{¶ 19} R.C. 2953.08(G)(2) provides an appellate court may increase, reduce,

modify, or vacate a sentence and remand for resentencing where there is clear and

convincing evidence 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. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 23.

{¶ 20} A sentence is not contrary to law where the trial court considers the

purposes and principles of sentencing under R.C. 2929.11 along with the seriousness and

recidivism factors under R.C. 2929.12, and imposes a sentence within the statutory range.

See State v. Craig, 6th Dist. Wood No. WD-14-061, 2015-Ohio-1479, ¶ 9.

{¶ 21} R.C. 2929.11(A) provides, in relevant part: “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[.]” A trial court must impose a sentence that is “reasonably

calculated to achieve the two overriding purposes of felony sentencing * * *

7. 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.” See R.C. 2929.11(B).

{¶ 22} In carrying out its obligations to impose a sentence consistent with the

purposes and principles of sentencing, the trial court must weigh the factors indicating

that the offender’s conduct is more serious than conduct normally constituting the offense

under R.C. 2929.12(B) against those factors indicating that the offender’s conduct is less

serious than conduct normally constituting the offense under R.C. 2929.12(C). Further,

the court must weigh the factors contained in R.C. 2929.12(D) indicating the likelihood

that the offender will commit future crimes against the factors contained in R.C.

2929.12(E) indicating that the offender is not likely to commit future crimes.

{¶ 23} A sentencing court is not required to use any specific language or make

specific findings to demonstrate that it considered the applicable sentencing criteria. See

State v. Sims, 6th Dist. Sandusky No. S-13-037, 2014-Ohio-3515, ¶ 6-13; State v. Yeager,

6th Dist. Sandusky No. S-15-025, 2016 Ohio App. LEXIS 2941, *5-9 (June 30, 2016).

{¶ 24} Here, we find the imposition of 36 months incarceration upon appellant is

within the confines of law because appellant pled guilty to robbery under R.C.

2911.02(A)(3), a felony of the third degree, which carries a maximum sentence of 36

months. See R.C. 2929.14(A)(3)(b).

{¶ 25} Next, we find the maximum sentence was imposed because of the

seriousness of the crime and appellant’s criminal history. At sentencing, the court

8. explored the extent of appellant’s juvenile record, which was stated to include assaults,

domestic violence, resisting arrests, and violations of parole. The court also noted how

appellant’s adult record included similar violent offenses. The court lastly highlighted

appellant’s risk of reoffending and history of probation violations. In light of these

findings and statements, we conclude the court complied with its obligations under R.C.

2929.11 and 2929.12.

{¶ 26} Lastly, we find the conviction and resulting sentence was supported by

sufficient factual basis in the record. R.C. 2911.02(A)(3) states “[n]o person, in

attempting or committing a theft offense or in fleeing immediately after the attempt or

offense, shall * * * [u]se or threaten the immediate use of force against another.”

{¶ 27} In this case, appellant admitted in open court that he forced his way into an

apartment and, in attempting or committing a theft, hit an individual with a bat or baton.

Based on these acts, and in consideration of appellant’s criminal history, we find the

sentence was amply supported in the record and there is no error in that regard.

Frivolousness of Appeal

{¶ 28} Last is our examination of the record to determine whether this appeal is

wholly frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of

the record, including the written plea agreement, the presentence report, and the

transcripts of the plea and sentencing hearings, reveals no errors by the trial court which

would justify a reversal of the judgment. We find this appeal to be wholly frivolous, and

counsel’s request to withdraw is found well-taken and is hereby granted.

9. Conclusion

{¶ 29} The judgment of the Sandusky County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The

clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE

10.