State v. Carson

2021 Ohio 209

• Court: Ohio Court of Appeals
• Decided: January 28, 2021
• Docket: 109592
• Status: Published

Opinion

[Cite as State v. Carson, 2021-Ohio-209.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109592 v. :

D’ERISE MARCEL CARSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: January 28, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-635174-A

Appearances:

Scott J. Friedman, for appellant.

KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, D’Erise Marcel Carson, filed a delayed notice of

appeal of his convictions and sentence following his guilty plea. After reviewing the

record, Carson’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), seeking leave to withdraw as

counsel. Following our independent review, we grant counsel’s motion to withdraw

and dismiss the appeal. I. Procedural Background

In Cuyahoga C.P. No. CR-18-635174-A, Carson was named in a five-

count indictment charging him with theft, and two counts each of aggravated

robbery and having weapons while under disability. The aggravated robbery counts

contained one- and three-year firearm specifications. Carson pleaded guilty to one

count of aggravated robbery with a three-year firearm specification. The remaining

offenses were dismissed. As part of his plea, he agreed to pay $680 in restitution.

In Cuyahoga C.P. No. CR-18-626156-B, a six-count indictment charged

Carson with trafficking, which contained firearm and schoolyard specifications;

drug possession, with a firearm specification; having weapons while under

disability; carrying a concealed weapon; improper handling firearms in a motor

vehicle; and possessing criminal tools. All counts contained forfeiture

specifications. Carson pleaded guilty to trafficking, including the schoolyard and

forfeiture specifications, and having weapons while under disability, including the

forfeiture specification.

In 2019, the court sentenced Carson in both cases to a total of seven

years in prison — concurrent 18 months on each count in Case No. 626156-B to run

concurrently with a seven-year sentence in Case No. 635174-A.

II. Anders Review

Carson has only appealed his convictions and sentence in Case No.

635174-A; he has not appealed his convictions in Case No. 626156-B. Based on the

belief that no prejudicial error occurred in the trial court and that any grounds for appeal would be frivolous, Carson’s counsel filed a motion to withdraw pursuant to

Anders. This court entered a judgment entry granting Carson approximately 45

days to file a supplemental pro se brief raising any additional assignments of error.

That time has expired, and no supplemental brief has been filed.

Anders outlined a procedure for counsel to follow to withdraw due to

the lack of any meritorious grounds for appeal. In Anders, the United States

Supreme Court held that if counsel thoroughly studies the case and conscientiously

concludes that an appeal is frivolous, he may advise the court of that fact and request

permission to withdraw from the case. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18

L.Ed.2d 493. Counsel’s request to withdraw must “be accompanied by a brief

referring to anything in the record that might arguably support the appeal.” Id.

Counsel must also furnish a copy of the brief to his client, and the court must allow

time for the appellant to file his own pro se brief. Id.

When these requirements have been satisfied, the appellate court must

complete an independent examination of the trial court proceedings to determine

whether the appeal is “wholly frivolous.” Id. If the court, in its independent review,

determines that a possible issue exists, it must discharge current counsel and

appoint new counsel to prosecute the appeal. Id. If, however, the court determines

that the appeal is wholly frivolous, the appellate court will grant the motion to

withdraw and dismiss the appeal. Id.

This panel recognizes there have been criticisms of the Anders

approach by some judges of this court. See, e.g., State Ruffin, 8th Dist. Cuyahoga Nos. 109134 and 109135, 2020-Ohio-5085 (S. Gallagher, J., dissenting); State v.

Sims, 2019-Ohio-4975, 149 N.E.3d 1143 (8th Dist.) (Boyle, J., dissenting) (both

would find that the Eighth District should eliminate the Anders procedure).

Additionally, other districts have declined to accept Anders briefs, noting that the

procedure outlined in Anders is a constitutional safeguard but not a constitutional

requirement. See, e.g., State v. Wilson, 2017-Ohio-5772, 83 N.E.3d 942 (4th Dist.);

State v. Wenner, 2018-Ohio-2590, 114 N.E.3d 800 (6th Dist.); State v. Cruz-Ramos,

2018-Ohio-1583, 125 N.E.3d 193 (7th Dist.). Despite these criticisms, this court

continues to adhere to the procedures announced in Anders. See State v. Taylor,

8th Dist. Cuyahoga No. 101368, 2015-Ohio-420; State v. Williams, 8th Dist.

Cuyahoga No. 109847, 2019-Ohio-3766; State v. J.L., 8th Dist. Cuyahoga No.

109626, 2020-Ohio-5254.

In this case, therefore, we must consider whether to grant counsel’s

request to withdraw because any appeal would be wholly frivolous. Although

Carson’s counsel asserts that an appeal in this case is wholly frivolous, he presents

two potential errors: (1) whether Carson was competent to enter a knowing,

intelligent, and voluntary guilty plea; and (2) whether the court erred in ordering

Carson to pay restitution without considering his ability to pay.

Crim.R. 11

Counsel raises as a potential error that Carson was not competent to

enter a knowing, intelligent, and voluntary guilty plea because he was taking

medications for schizoaffective disorder. We have conducted an independent examination of the record and agree with counsel that the record reflects that Carson

was competent and that he entered a knowing, intelligent, and voluntary guilty plea.

A defendant’s guilty plea must be made knowingly, intelligently, and

voluntarily, and “[f]ailure 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, 660 N.E.2d 450 (1996). To

ensure that a plea is entered knowingly, intelligently, and voluntarily, Crim.R. 11(C)

requires the trial judge to determine whether the criminal defendant is fully

informed of his rights, both constitutional and nonconstitutional. The court must

also confirm that the defendant understands the consequences of his plea before

accepting a guilty plea. Id.

During the plea, Carson informed the court that he was taking

medication for schizoaffective disorder. It is well established, however, that a

defendant does not lack mental capacity to enter a plea, or that a trial court does not

err in accepting a plea, merely because a defendant was suffering from a mental

illness or was taking psychotropic medication when he entered the plea. See, e.g.,

State v. McClendon, 8th Dist. Cuyahoga No. 103202, 2016-Ohio-2630, ¶ 16; State

v. Robinson, 8th Dist. Cuyahoga No. 89136, 2007-Ohio-6831, ¶ 18; see also State v.

Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 71 (the fact that a

defendant is taking psychotropic drugs does not negate a defendant’s competence

to stand trial). In this case, there is nothing in the record to suggest that there was a

concern that Carson was incapable of understanding the proceedings, the nature of

the offenses, the rights he would waive by pleading guilty, and the penalties

associated with the offenses. His counsel stated that Carson underwent a prior

psychological evaluation that revealed that Carson suffered from depressive

disorder, not a psychosis disorder. (Tr. 9.) Nevertheless, Carson stated at the plea

hearing that he felt “clearheaded” and did not have any trouble understanding the

nature of the proceedings. (Tr. at id.) At sentencing, counsel assured the court that

Carson was competent and assisted in his defense throughout the case. (Tr. 24.)

Our review of the record reveals that that the trial court complied with

the dictates of Crim.R. 11(C) before accepting Carson’s plea. The trial court advised

him of the constitutional rights he would waive by pleading guilty, and Carson

acknowledged that he understood those rights. The trial court also advised Carson

of the penalties he could face by pleading guilty, which included a discussion that

Carson would pay the victim restitution. He acknowledged that he understood the

consequences of his plea. The trial court also established that Carson was satisfied

with his attorney and that all parties were satisfied that the court complied with

Crim.R. 11. Accordingly, we agree with counsel that Carson was competent to enter

a guilty plea, which he made knowingly, intelligently, and voluntarily.

Restitution

Counsel also raises as a potential error that the trial court erred in

imposing restitution without considering Carson’s ability to pay. The record reflects that Carson expressly agreed to pay $680 in restitution to the victim as part of his

plea agreement. See tr. 11. When payment of restitution to the victim is part and

parcel of a plea agreement, there is no reversible error in imposing a financial

sanction, without first determining the defendant’s ability to pay. State v. McElroy,

8th Dist. Cuyahoga Nos. 104639, 104640, and 104641, 2017-Ohio-1049; ¶ 53; State

v. St. Martin, 8th Dist. Cuyahoga No. 96834, 2012-Ohio-1633, ¶ 8 (the stipulation

and agreement to pay restitution is sufficient to support the trial court’s order and

precludes the defendant from complaining about it on appeal). Accordingly, Carson

would be precluded from raising on appeal any argument regarding restitution.

III. Conclusion

The record reflects that the trial court complied with Crim.R. 11 when

it accepted Carson’s guilty plea and there is nothing in the record to suggest that

Carson did not enter a knowing, intelligent, and voluntary plea. Accordingly, we

agree with counsel that any error raised on appeal suggesting otherwise would be

wholly frivolous. We also agree with counsel that any error raised challenging

restitution would be wholly frivolous because Carson agreed as part of the plea deal

to pay the victim restitution. Accordingly, pursuant to Anders, counsel’s request to

withdraw is granted and the appeal is dismissed.

Dismissed. It is ordered that appellee recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

LISA B. FORBES, J., and EILEEN T. GALLAGHER, J., CONCUR