State v. Goad

2018 Ohio 1338

• Court: Ohio Court of Appeals
• Decided: March 29, 2018
• Docket: 17 MA 0051
• Status: Published

Opinion

[Cite as State v. Goad, 2018-Ohio-1338.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 17 MA 0051 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) RALPH GOAD ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16 CR 631

JUDGMENT: Convictions Affirmed. Sentence Vacated. Remanded for Resentencing.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Shelli Ellen Freeze 839 Southwestern Run Road Poland, Ohio 44514

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: March 29, 2018 [Cite as State v. Goad, 2018-Ohio-1338.] WAITE, J.

{¶1} Appellant Ralph Goad appeals his convictions and sentences entered

pursuant to a Crim.R. 11 plea agreement in the Mahoning County Common Pleas

Court. Appellant was convicted on multiple counts of burglary, multiple counts of

breaking and entering, and one count of attempted burglary. Appellant’s counsel

filed a no merit brief requesting leave to withdraw. A complete review of the record

reveals the only appealable issue regards the imposition of consecutive sentences by

the trial court. The trial court failed to make the statutorily mandated consecutive

sentence findings at the sentencing hearing and in the judgment entry. Therefore,

Appellant’s convictions are affirmed, but the trial court’s sentencing is vacated and

the matter is remanded for resentencing. Appointed counsel’s motion to withdraw is

granted.

Factual and Procedural History

{¶2} On June 9, 2016, Appellant was indicted. Counts one, two and three

involved breaking and entering in violation of R.C. 2911.13(A), (C), felonies of the

fifth degree. Counts four, five, six and seven charged burglary in violation of R.C.

2912(A)(2), (D), felonies of the second degree; counts eight, nine and ten charged

breaking and entering in violation of R.C. 2911.13(A), (C), felonies of the fifth degree.

Count eleven was for attempted burglary in violation of R.C. 2911.12(A)(2), (D) and

R.C. 2923.02, a felony of the third degree, and counts twelve and thirteen involved

burglary in violation of R.C. 2911.12(A)(2), (D), felonies of the second degree.

{¶3} Appellant entered into a Crim.R. 11 plea agreement with the state.

Pursuant to plea negotiations, the state amended all of the burglary counts (counts 4- -2-

7; 12, 13) from second degree felonies to third degree felonies. Appellant agreed to

plead to the charges as amended. The state agreed to recommend a sentence of

fifteen years of imprisonment and agreed that Appellant was free to argue for a lesser

sentence. On January 5, 2017, the trial court held a plea hearing. After entering into

a Crim.R. 11 colloquy with Appellant, the court accepted his guilty plea. The state

recommended a sentence of a fifteen-year term of incarceration. Appellant did not

object to this recommendation.

{¶4} On March 1, 2017, the trial court held a sentencing hearing. The state

reiterated its recommendation for a prison sentence of fifteen years. Appellant’s

counsel argued for a term of five to seven years. The trial court accepted the state’s

recommendation and sentenced Appellant to thirty months each on counts four, five,

six, seven, twelve and thirteen, to be served consecutively to one another; a thirty

month sentence on count eleven, to be served concurrently with count four; a

sentence of twelve months each on counts one, two, three, eight, nine and ten to be

served concurrently with count four. The total prison term to which Appellant was

sentenced was fifteen years. The court also imposed a mandatory three-year term of

postrelease control and credited Appellant with 280 days of jail time served. This

timely appeal followed.

No Merit Brief

{¶5} Appellant’s counsel seeks to withdraw after finding no meritorious

arguments for appeal. This filing is known as a no merit brief, or an Anders brief.

See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). In this -3-

district, it is also referred to as a Toney brief. See State v. Toney, 23 Ohio App.2d

203, 262 N.E.2d 419 (7th Dist.1970).

{¶6} In Toney, this Court established the procedure to be used when

appellate counsel wishes to withdraw from a case deemed a frivolous appeal.

3. Where a court-appointed counsel, with long and extensive

experience in criminal practice, concludes that the indigent's appeal is

frivolous and that there is no assignment of error which could be

arguably supported on appeal, he should so advise the appointing court

by brief and request that he be permitted to withdraw as counsel of

record.

4. Court-appointed counsel's conclusions and motion to withdraw as

counsel of record should be transmitted forthwith to the indigent, and

the indigent should be granted time to raise any points that he chooses,

pro se.

5. It is the duty of the Court of Appeals to fully examine the

proceedings in the trial court, the brief of appointed counsel, the

arguments pro se of the indigent, and then determine whether or not

the appeal is wholly frivolous.

***

7. Where the Court of Appeals determines that an indigent's appeal is

wholly frivolous, the motion of court-appointed counsel to withdraw as -4-

counsel of record should be allowed, and the judgment of the trial court

should be affirmed.

Id. at syllabus.

{¶7} On June 28, 2017, appellate counsel filed a no merit brief in this matter.

On July 19, 2017, we entered a judgment entry informing Appellant that his counsel

had filed a no merit brief and gave him thirty days to file his own brief. Appellant

failed to file a brief. Accordingly, this Court must independently examine the record

to determine whether there are any potentially meritorious issues in this matter.

Counsel contends that she has reviewed the plea colloquy and sentence.

Plea Hearing

{¶8} Per Crim.R. 11(C), the trial court must advise the defendant of certain

rights prior to accepting a guilty plea. These rights are both constitutional and

nonconstitutional in nature.

{¶9} Regarding the defendant’s constitutional rights, a trial court must advise

a defendant of: (1) a right to a jury trial; (2) a right to confront witnesses; (3)

compulsory process to obtain favorable witnesses; (4) the state’s burden to prove

defendant’s guilt beyond a reasonable doubt at trial; and (5) that defendant cannot be

compelled to testify at his trial. State v. Bell, 7th Dist. No. 14 MA 0017, 2016-Ohio-

1440, ¶ 9, citing Crim.R. 11(C)(2); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, 897 N.E.2d 621, ¶ 19-21. The trial court must strictly comply with these

constitutional requirements in order for a defendant’s plea to be deemed valid. Id. at

¶ 31. -5-

{¶10} The defendant must also be advised of his nonconstitutional rights

which include: (1) the nature of the charges; (2) the maximum penalty to which the

defendant is subject, including postrelease control, if it is applicable; (3) whether the

defendant is eligible for probation or community control sanctions; and (4) that the

trial court may immediately proceed to sentencing after the plea is accepted. Id. at

¶ 10-13. Strict compliance is not required for these rights. The trial court need only

substantially comply when advising on these nonconstitutional requirements.

“Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is

waiving.” Bell, supra at ¶ 10, citing Veney at ¶ 15. If the trial court has not

substantially complied when advising defendant of his or her nonconstitutional rights,

the defendant must then demonstrate that there has been a prejudicial effect. Id.

{¶11} At the plea hearing in the instant matter, the trial court informed

Appellant he had the right to a jury trial; that the state would be required to prove

each element of the offenses beyond a reasonable doubt; he had the right to issue

subpoenas to compel witnesses to testify; he had the right to confront witnesses

against him; and that he could not be compelled to testify at trial. (1/5/17 Plea Hrg.

Tr., pp. 4-6.) This record reveals that the trial court strictly complied when advising

Appellant of his constitutional rights.

{¶12} Regarding Appellant’s nonconstitutional rights, the trial court informed

him of the charges that were brought against him, which included multiple counts of

breaking and entering, multiple counts of burglary, and a single count of attempted -6-

burglary. (1/5/17 Plea Hrg. Tr., pp. 4-5.) The court also advised Appellant that he

was subject to a maximum sentence of one year on each of the counts of breaking

and entering and a maximum of 36 months on each of the burglary counts, the

amended burglary counts and the attempted burglary charge. The court informed

Appellant that if he received a term of incarceration he would be subject to a

mandatory three-year term of postrelease control. (1/5/17 Plea Hrg. Tr., pp. 8-9.)

The court informed Appellant that it could proceed immediately to sentencing after

accepting his plea. (1/5/17 Plea Hrg. Tr., p. 7.) The record, then, also reveals the

trial court substantially complied when advising Appellant of his nonconstitutional

rights.

{¶13} As the trial court strictly complied when advising Appellant of his

constitutional rights and substantially complied when advising him of his

nonconstitutional rights, there are no appealable issues regarding Appellant’s guilty

plea and subsequent conviction.

Sentencing

{¶14} An appellate court may review a felony sentence to determine if it is

clearly and convincingly contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 23. “[A]n appellate court may vacate or modify any

sentence that is not clearly and convincingly contrary to law only if the appellate court

finds by clear and convincing evidence that the record does not support the

sentence.” Id. -7-

{¶15} A sentencing court must consider the purposes and principles of

sentencing in accordance with R.C. 2929.11; the seriousness and recidivism factors

set forth in R.C. 2929.12; and the appropriate consecutive sentence requirements

enumerated in R.C. 2929.14(C)(4).

{¶16} In the instant matter, the trial court accepted the state’s

recommendation and sentenced Appellant to thirty months each on counts four, five,

six, seven, twelve and thirteen, to be served consecutively to one another; a

sentence of thirty months on count eleven to be served concurrently with count four;

a sentence of twelve months each on counts one, two, three, eight, nine and ten to

be served concurrently with count four, for a total stated prison term of fifteen years.

{¶17} When imposing consecutive sentences the trial court must make the

required R.C. 2929.14(C)(4) findings at the sentencing hearing and must also

incorporate those findings into the written sentencing entry. State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 654, ¶ 29. R.C. 2929.14(C)(4) reads:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the

offender and that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender

poses to the public, and if the court also finds any of the following: -8-

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender's

conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

R.C. 2929.14(C)(4).

{¶18} We recognize “a word-for-word recitation of the language of the statute

is not required, and as long as the reviewing court can discern that the trial court

engaged in the correct analysis and can determine that the record contains evidence

to support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29.

{¶19} In the case sub judice, the record reveals the trial court failed to make

any of the findings at the sentencing hearing and also failed to make these findings in

the written judgment entry. The trial court stated that it was imposing consecutive -9-

sentences but the record is devoid of any indication that it considered R.C.

2929.14(C)(4) when it imposed those consecutive sentences.

{¶20} Therefore, although there are no appealable issues regarding

Appellant’s convictions, the trial court’s failure to properly consider the R.C.

2929.14(C)(4) requirements when imposing consecutive sentences requires

resentencing. We affirm Appellant’s convictions but vacate his sentence and remand

the matter to the trial court for a new sentencing hearing. Appointed counsel’s

motion to withdraw is granted.

Donofrio, J., concurs.

Robb, P.J., concurs.