State v. Goff

2011 Ohio 3378

• Court: Ohio Court of Appeals
• Decided: June 30, 2011
• Docket: 10CA29
• Status: Published

Opinion

[Cite as State v. Goff, 2011-Ohio-3378.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

State of Ohio, : : Plaintiff-Appellee, : : Case No. 10CA29 v. : : DECISION AND Kenneth E. Goff, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 6-30-11 ________________________________________________________________

APPEARANCES:

Chandra L. Ontko, Cambridge, Ohio, for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Kevin A. Rings, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. ________________________________________________________________

Kline, J.:

{¶1} Kenneth E. Goff (hereinafter “Goff”) appeals the judgment of the Washington

County Court of Common Pleas. Goff pled guilty to four counts of gross sexual

imposition. Goff’s appellate counsel has advised this court that, after reviewing the

record, she cannot find a meritorious claim for appeal. As a result, Goff’s appellate

counsel has moved to withdraw under Anders v. California (1967), 386 U.S. 738. After

independently reviewing the record, we agree that Goff’s appeal is wholly frivolous.

Accordingly, we (1) grant counsel’s request to withdraw and (2) affirm the judgment of

the trial court.

I.

{¶2} On March 30, 2010, Goff was indicted on six counts of gross sexual

imposition, each with a specification that the victim was less than thirteen years of age. Washington App. No. 10CA29 2

Goff eventually pled guilty to four counts of gross sexual imposition. The State

dismissed two counts as well as the specifications for each count.

{¶3} The trial court held a change of plea hearing on July 22, 2010. At the

hearing, the State outlined the factual basis for the charges against Goff. The State

asserted that counts one and two related to Goff’s molestation of a twelve-year-old girl.

In count three, the State asserted that Goff molested a girl who was about two years

old. Finally, in count five, the State asserted that Goff molested a third girl who was

also two years old at the time of the incident. After providing some vague responses to

the trial court regarding whether he committed the alleged acts, Goff admitted that he

molested the victims. According to the State, Goff “indicated throughout [the

investigation] that he had a sexual urge to touch these children in this way, and that it

was something that he couldn’t control or couldn’t help himself with.” Tr. at 55. Goff

subsequently confirmed that he wished to plead guilty to counts one, two, three, and

five, which alleged violations of R.C. 2907.05(A)(4) for gross sexual imposition.

{¶4} The trial court held a sentencing hearing on September 2, 2010. The trial

court sentenced Goff to five years for each count, and the court ordered the sentences

to run consecutively. Goff’s aggregate prison sentence is twenty years.

II.

{¶5} Although Goff has appealed his conviction, Goff’s appellate counsel has filed

both a motion to withdraw and an Anders brief. “In Anders, the United States Supreme

Court held that if counsel determines after a conscientious examination of the record

that the case is wholly frivolous, counsel should so advise the court and request

permission to withdraw. Id. at 744. Counsel must accompany the request with a brief Washington App. No. 10CA29 3

identifying anything in the record that could arguably support the appeal. Id. Counsel

also must furnish the client with a copy of the brief and request to withdraw and allow

the client sufficient time to raise any matters that the client chooses. Id. Once these

requirements have been satisfied, the appellate court must then fully examine the

proceedings below to determine if meritorious issues exist. Id. If the appellate court

determines that the appeal is frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements or may proceed to a

decision on the merits if state law so requires. Id. Alternatively, if the appellate court

concludes that any of the legal points are arguable on their merits, it must afford the

appellant the assistance of counsel to argue the appeal. Id.” State v. Wise, Lawrence

App. No. 08CA40, 2009-Ohio-5264, at ¶ 11. See, also, State v. Taylor, Montgomery

App. No. 23833, 2010-Ohio-4276, at ¶2 (stating that an appellant must be afforded

“time to file a pro se brief”).

{¶6} Upon receiving an Anders brief, we must “conduct ‘a full examination of all the

proceeding[s] to decide whether the case is wholly frivolous.’” Penson v. Ohio (1988),

488 U.S. 75, 80, quoting Anders at 744. If we find only frivolous issues on appeal, we

may then proceed to address the case on its merits without affording appellant the

assistance of counsel. Penson at 80. However, if we conclude that there are

nonfrivolous issues for appeal, we must afford appellant the assistance of counsel to

address those issues. Anders at 744; Penson at 80; see, also, State v. Alexander (Aug.

10, 1999), Lawrence App. No. 98CA29.

{¶7} Here, Goff’s counsel has satisfied the requirements of Anders. And although

Goff has not filed a pro se brief, Goff’s counsel has raised the following potential Washington App. No. 10CA29 4

assignment of error: I. “THE JUDGMENT AGAINST THE DEFENDANT WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.”

III.

{¶8} In his sole potential assignment of error, Goff contends that the trial court’s

judgment was against the manifest weight of the evidence.

{¶9} Under Crim.R. 11(B)(1), a “plea of guilty is a complete admission of the

defendant’s guilt.” Therefore, by pleading guilty, a defendant waives his right to argue

that his conviction was against the manifest weight of the evidence. State v. Loper,

Licking App. No. 09-CA-0043, 2009-Ohio-5919, at ¶7; State v. Williams, Lucas App. No.

L-02-1221, 2004-Ohio-4856, at ¶12; State v. Chavers, Wayne App. No. 07CA0065,

2008-Ohio-3199, at ¶6; State v. Jamison, Montgomery App. No. 21165, 2006-Ohio-

4933, at ¶38. Thus, on direct appeal, a defendant who pled guilty to an offense cannot

assert that his conviction was against the manifest weight of the evidence. Loper at ¶7;

State v. Siders (1992), 78 Ohio App.3d 699, 701.

{¶10} Accordingly, because Goff pled guilty to four counts of gross sexual

imposition, he cannot claim, on direct appeal, that his convictions were against the

manifest weight of the evidence. We overrule Goff’s potential assignment of error.

IV.

{¶11} We find no merit in Goff’s potential assignment of error. Furthermore, after

fully examining the proceedings below, we have found no other potential issues for

appeal. Because we agree that Goff’s appeal is wholly frivolous, we (1) grant Goff’s

counsel’s motion to withdraw and (2) affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Washington App. No. 10CA29 5

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Harsha, P.J. and McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.