State v. Cody

2016 Ohio 7785

• Court: Ohio Court of Appeals
• Decided: November 17, 2016
• Docket: 104315
• Status: Published

Opinion

[Cite as State v. Cody, 2016-Ohio-7785.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104315

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MATTHEW T. CODY DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-593574-J, CR-15-594470-A, CR-15-594674-A, and CR-15-596477-A

BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: November 17, 2016 ATTORNEY FOR APPELLANT

Steve W. Canfil 55 Public Square Suite 2100 Cleveland, Ohio 44113

Also listed:

Matthew Cody Inmate No. 682-034 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEY FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:

{¶1} Defendant-appellant, Matthew T. Cody (“Cody”), appeals from his

convictions and sentence following a guilty plea. After an examination of the case,

Cody’s appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1997), and now seeks leave to withdraw as counsel. Cody

has not filed a brief setting forth any assignments of error. After a thorough review of the

record, we affirm the trial court’s judgment and grant counsel’s request to withdraw.

I. Procedural History

{¶2} In Cuyahoga C.P. No. CR-15-593574-J, Cody pleaded guilty to drug

trafficking in violation of R.C. 2925.03(A)(2), a felony of the second degree , with a

one-year firearm specification; tampering with records in violation of R.C.

2913.42(A)(1), a felony of the third degree; possession of criminal tools in violation of

R.C. 2923.24, a felony of the fifth degree; and two counts of drug trafficking in violation

of R.C. 2925.03(A)(1), felonies of the fourth degree.

{¶3} In Cuyahoga C.P. No. CR-15-594470-A, Cody pleaded guilty to burglary in

violation of R.C. 2911.12(A)(3), a felony of the third degree; and vandalism in violation

of R.C. 2909.05, a felony of the fifth degree.

{¶4} In Cuyahoga C.P. No. CR-15-594674-A, Cody pleaded guilty to having

weapons while under disability in violation of R.C. 2923.13(A)(1), a felony of the third

degree; escape in violation of R.C. 2921.34(A)(1), a felony of the third degree; improper

handling of a firearm in a motor vehicle in violation of R.C. 2923.16, a felony of the fourth degree; identity fraud in violation of R.C. 2913.49(B)(2), a felony of the fifth

degree; and drug possession in violation of R.C. 2925.11, a felony of the fifth degree.

{¶5} In Cuyahoga C.P. No. CR-15-596477-A, Cody pleaded guilty to two counts

of drug trafficking in violation of R.C. 2925.03(A)(1) and (2), felonies of the fourth

degree; and a single count of drug possession in violation of R.C. 2925.11, a felony of the

fifth degree.

{¶6} After fully complying with Crim.R. 11 and advising Cody of his statutory and

constitutional rights, the trial court accepted Cody’s guilty pleas in each case, finding that

they were knowingly, intelligently, and voluntarily made.

{¶7} In March 2016, the trial court held a joint sentencing hearing. In Case No.

CR-15-593574-J, the trial court sentenced Cody to three years in prison on the

second-degree felony drug trafficking charge, to run consecutive to the one-year firearm

specification. Cody was further sentenced to concurrent prison terms of 18 months each

on the tampering with records and remaining drug trafficking convictions, and 12 months

on the possession of criminal tools conviction.

{¶8} In Case No. CR-15-594470-A, Cody was sentenced to 18 months on the

burglary conviction and 12 months on the vandalism conviction, to be served

concurrently.

{¶9} In Case No. CR-15-594674-A, Cody was sentenced to 18 months each on the

weapons, escape, and improper handling of a firearm convictions. Cody was also sentenced to 12 months each on the identity fraud and drug possession convictions. The

trial court ordered that the sentences be served concurrently.

{¶10} In Case No. CR-15-596477-A, Cody was sentenced to 18 months for each

drug trafficking conviction, and 12 months on the drug possession conviction, to be

served concurrently.

{¶11} The prison terms imposed in each case were ordered to run concurrently to

each other, for a total four-year term of imprisonment.

{¶12} Following his convictions, the trial court appointed counsel to represent

Cody on appeal. Based on the belief that no prejudicial error occurred below and that

any grounds for appeal would be frivolous, Cody’s counsel filed a motion to withdraw

pursuant to Anders.

II. Law and Analysis

{¶13} Anders, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th

Dist.1978), outline the procedure counsel must follow to withdraw as counsel 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 at 744. However, counsel’s request to withdraw must

“be accompanied by a brief referring to anything in the record that might arguably support

the [a]ppeal.” Id. Counsel must also furnish a copy of the brief to his client with

sufficient time to allow the appellant to file his own brief, pro se. Id. {¶14} Once these requirements have been satisfied, the appellate court must

complete an independent examination of the trial court proceedings to decide whether the

appeal is “wholly frivolous.” Id. If the appellate court determines the appeal is

frivolous, it may grant counsel’s request to withdraw and address the merits of the case

without affording the appellant the assistance of counsel. Duncan, 57 Ohio App.2d 93,

385 N.E.2d 323 (8th Dist.1978); State v. Kendall, 4th Dist. Ross No. 06CA2919,

2007-Ohio-2743, ¶ 7. If, however, the court finds the existence of meritorious issues, it

must afford the appellant assistance of counsel before deciding the merits of the case. Id.

{¶15} Counsel presents several potential issues for review pursuant to Anders.

First, counsel advises that because Cody was convicted by virtue of his guilty pleas, the

plea hearing should be reviewed for any errors. 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 or her 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.

{¶16} Counsel asserts that the trial court complied with the requirements of

Crim.R. 11(C) and that Cody knowingly, intelligently, and voluntarily entered his guilty pleas. We have conducted an independent examination of the record and also find that

the trial court strictly complied with the dictates of Crim.R. 11(C) in accepting Cody’s

plea. The trial court advised Cody of his constitutional rights and the potential penalties

he could receive, including postrelease control. In addition, the record reflects that the

trial court complied with the statutory forfeiture provisions set forth in R.C. Chapter

2981.01 et seq. and sufficiently advised Cody of the property he would be forfeiting as

part of each plea. Therefore, any argument that the pleas were not entered knowingly,

intelligently, and voluntarily would be frivolous.

{¶17} We further find no merit to counsel’s suggestion that the trial court

potentially erred by permitting Cody to waive a re-reading of certain Crim.R. 11 rights for

each case during the joint plea hearing. The record reflects that after fully informing

Cody of his constitutional and nonconstitutional rights pursuant to Crim.R. 11 and

accepting his pleas in Case Nos. CR-15-596477-A and CR-15-594470-A, the trial court

proceeded to Cody’s remaining cases. At that time, the trial court asked Cody if it

needed to re-read the “lead-in questions about your age, how far you went to school, all of

the rights that I read to you, up to discussing the nature of the charges in this case.”

Cody responded, “No, Your Honor,” and the trial court proceeded to explain the nature of

the charges and the effect of Cody’s guilty pleas in Case Nos. CR-15-593574-J and

CR-15-594674-A. Under these circumstances, we are unable to conclude that the trial

court erred by failing to inform Cody of his constitutional rights in a separate colloquy for

each case. See State v. Galloway, 11th Dist. Lake No. 2000-L-080, 2002-Ohio-4359. As stated, the trial court thoroughly informed Cody of his constitutional and

nonconstitutional rights at the onset of the plea hearing, and Cody indicated that he

understood that those rights applied to each case. Accordingly, we find Cody

subjectively understood the rights he was waiving by entering guilty pleas in Case Nos.

CR-15-593574-J and CR-15-594674-A.

{¶18} Next, counsel advises us that any other potential error that could have

occurred in the proceedings would have occurred during sentencing, but there was no

error. We agree.

{¶19} After careful review, we find the trial court properly sentenced Cody within

the applicable statutory guidelines for each felony conviction. The record reflects that

the trial court considered the purposes and principles of sentencing set forth in R.C.

2929.11 and the sentencing factors set forth in R.C. 2929.12. Indeed, the court stated in

the sentencing entries in both cases that it considered “all required factors of the law.”

This court has held that a trial court’s statement in the sentencing entry that it considered

the required statutory factors sufficient to fulfill the trial court’s obligations under R.C.

2929.11 and 2929.12, even if the court did not explicitly mention the factors at the

sentencing hearing. State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶

9.

{¶20} In addition, the sentencing transcript demonstrates that the trial court

properly advised Cody of his mandatory postrelease control obligations, as well as the

consequences for failing to comply with the requirements of postrelease control. Moreover, as noted by counsel, the trial court did not error in imposing community work

service in lieu of court costs and fees. See State v. Coe, 8th Dist. Cuyahoga No. 95068

2011-Ohio-1561, ¶ 8. We therefore find no errors with respect to Cody’s sentence.

{¶21} Lastly, we agree with counsel’s position that there is nothing in the record to

suggest that the trial court violated the Ohio Supreme Court’s decision in State v.

Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, which holds that a trial

court may not impose a no-contact order while sentencing a defendant to a prison term.

In this case, it is evident that while the prosecutor stated at the plea hearing that Cody

“agreed to have no contact with the victim” in Case No. 15-CR-594470-A, the trial court

did not issue a no-contact order at the time of sentencing and did not place a no-contact

order in the sentencing journal entry. Accordingly, an appeal on this aspect of Cody’s

sentence would be frivolous.

III. Conclusion

{¶22} We therefore conclude that Cody’s appeal is wholly frivolous pursuant to

Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. There is nothing in the record that

might arguably support an appeal. Counsel’s request to withdraw is granted, and the

appeal is dismissed.

It is ordered that appellee recover of appellant its costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. EILEEN T. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and FRANK D. CELEBREZZE, JR., J., CONCUR