[Cite as State v. Gunter, 2017-Ohio-7247.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105275
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JARED A. GUNTER DEFENDANT-APPELLANT
JUDGMENT: DISMISSED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607771-A
BEFORE: Boyle, J., Kilbane, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: August 17, 2017 ATTORNEY FOR APPELLANT
Sarah R. Cofta P.O. Box 16425 Cleveland, Ohio 44116
Jared A. Gunter, pro se Inmate No. A691-809 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: Ashley B. Kilbane Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Jared Gunter, appeals from a judgment convicting him
of burglary and grand theft and sentencing him to 12 months in prison. Gunter’s 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 because there are no meritorious,
nonfrivolous issues for this court to review.
I. Anders Standard and Potential Issues for Review
{¶2} In Anders, the United States Supreme Court held that if appointed counsel,
after a conscientious examination of the case, determines the appeal to be wholly
frivolous, he or she should advise the court of that fact and request permission to
withdraw. Anders at 744. This request, however, must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. Further,
counsel must also furnish the client with a copy of the brief and allow the client sufficient
time to file his or her own brief. Id. In this case, appointed counsel fully complied with
the requirements of Anders.
{¶3} Once the appellant’s counsel satisfies these requirements, this court must
fully examine the proceedings below to determine if any arguably meritorious issues
exist. Id.; Loc.App.R. 16(C). If we determine that the appeal is wholly frivolous, we
may grant counsel’s request to withdraw and dismiss the appeal without violating
constitutional requirements, or we may proceed to a decision on the merits if state law so
requires. Anders; Loc.App.R. 16(C). {¶4} On April 18, 2017, this court ordered appointed counsel’s motion be held in
abeyance pending our independent review of the case. We further notified Gunter that
he had until July 25, 2017, to file his own appellate brief, but he did not do so.
{¶5} Gunter’s counsel has fully complied with the requirements of Anders and
Loc.App.R. 16(C). Gunter’s counsel states in her Anders brief that she thoroughly
reviewed the record, and concluded that there are no meritorious arguments that she could
make on Gunter’s behalf. Gunter’s counsel has submitted the following two potential
assignments of error:
1. Whether the trial court’s sentence was contrary to law or unsupported by clear and convincing evidence.
2. Whether appellant’s guilty pleas were made knowingly, voluntarily, and intelligently.
{¶6} After conducting an independent review of Gunter’s case, we dismiss his
appeal and grant appointed counsel’s motion to withdraw.
II. Procedural and Factual Background
{¶7} Gunter was indicted in July 2016 on three counts: burglary, grand theft,
and petty theft. In September 2016, Gunter withdrew his former plea of not guilty and
pleaded guilty to an amended count of burglary in violation of R.C. 2911.12(B), a
fourth-degree felony, and one count of grand theft in violation of R.C. 2913.02(A)(1), a
fourth-degree felony. As part of his plea, Gunter agreed to $1,300 in restitution to the
victim. The remaining count was nolled.
{¶8} The trial court sentenced Gunter to 12 months on each offense and ordered that he serve them concurrently. The trial court further notified Gunter that he would be
subject to a discretionary period of three years of postrelease control and advised him of
the consequences for violating the conditions of that postrelease control.
III. Sentence
{¶9} In the first potential assignment of error, counsel argues that one could
argue that Gunter’s sentence was contrary to law or unsupported by clear and convincing
evidence.
{¶10} An appellate court must conduct a meaningful review of the trial court’s
sentencing decision. State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012- Ohio-1892, ¶ 7.
R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he appellate court’s
standard for review is not whether the sentencing court abused its discretion.” Rather,
the statute states that if we “clearly and convincingly” find that (1) “the record does not
support the sentencing court’s findings under [certain statutes that require findings, which
are not relevant here],” or that (2) “the sentence is otherwise contrary to law,” then we
“may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the
sentence and remand the matter to the sentencing court for re-sentencing.” R.C.
2953.08(G)(2).
{¶11} The Ohio Supreme Court has further explained:
We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an 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.
{¶12} The trial court has the full discretion to impose any term of imprisonment
within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11
and the guidelines contained in R.C. 2929.12. State v. Holmes, 8th Dist. Cuyahoga No.
99783, 2014-Ohio-603, ¶ 8.
{¶13} Under R.C. 2929.11(A), a felony sentence shall be reasonably calculated to
achieve two “overriding purposes”: (1) to protect the public from future crimes by the
offender, and (2) to punish the offender using the minimum sanctions the court
determines will achieve those purposes. Further, under R.C. 2929.11(B), the sentence
imposed for a felony must be commensurate with the seriousness of the offender’s
conduct and consistent with sentences imposed for similar crimes committed by similar
offenders.
{¶14} Under R.C. 2929.12(A), a court sentencing a felony offender has discretion
to determine the most effective way to comply with the purposes and principles of
sentencing outlined in the statute. In exercising its discretion, however, the sentencing
court must consider the seriousness, recidivism, and other mitigating factors set forth in
R.C. 2929.12. Id. Although the trial court must consider the purposes and principles
of sentencing as well as the mitigating factors, the court is not required to use particular
language or make specific findings on the record regarding its consideration of those
factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31;
State v.
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[Cite as State v. Gunter, 2017-Ohio-7247.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105275
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JARED A. GUNTER DEFENDANT-APPELLANT
JUDGMENT: DISMISSED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607771-A
BEFORE: Boyle, J., Kilbane, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: August 17, 2017 ATTORNEY FOR APPELLANT
Sarah R. Cofta P.O. Box 16425 Cleveland, Ohio 44116
Jared A. Gunter, pro se Inmate No. A691-809 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: Ashley B. Kilbane Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Jared Gunter, appeals from a judgment convicting him
of burglary and grand theft and sentencing him to 12 months in prison. Gunter’s 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 because there are no meritorious,
nonfrivolous issues for this court to review.
I. Anders Standard and Potential Issues for Review
{¶2} In Anders, the United States Supreme Court held that if appointed counsel,
after a conscientious examination of the case, determines the appeal to be wholly
frivolous, he or she should advise the court of that fact and request permission to
withdraw. Anders at 744. This request, however, must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. Further,
counsel must also furnish the client with a copy of the brief and allow the client sufficient
time to file his or her own brief. Id. In this case, appointed counsel fully complied with
the requirements of Anders.
{¶3} Once the appellant’s counsel satisfies these requirements, this court must
fully examine the proceedings below to determine if any arguably meritorious issues
exist. Id.; Loc.App.R. 16(C). If we determine that the appeal is wholly frivolous, we
may grant counsel’s request to withdraw and dismiss the appeal without violating
constitutional requirements, or we may proceed to a decision on the merits if state law so
requires. Anders; Loc.App.R. 16(C). {¶4} On April 18, 2017, this court ordered appointed counsel’s motion be held in
abeyance pending our independent review of the case. We further notified Gunter that
he had until July 25, 2017, to file his own appellate brief, but he did not do so.
{¶5} Gunter’s counsel has fully complied with the requirements of Anders and
Loc.App.R. 16(C). Gunter’s counsel states in her Anders brief that she thoroughly
reviewed the record, and concluded that there are no meritorious arguments that she could
make on Gunter’s behalf. Gunter’s counsel has submitted the following two potential
assignments of error:
1. Whether the trial court’s sentence was contrary to law or unsupported by clear and convincing evidence.
2. Whether appellant’s guilty pleas were made knowingly, voluntarily, and intelligently.
{¶6} After conducting an independent review of Gunter’s case, we dismiss his
appeal and grant appointed counsel’s motion to withdraw.
II. Procedural and Factual Background
{¶7} Gunter was indicted in July 2016 on three counts: burglary, grand theft,
and petty theft. In September 2016, Gunter withdrew his former plea of not guilty and
pleaded guilty to an amended count of burglary in violation of R.C. 2911.12(B), a
fourth-degree felony, and one count of grand theft in violation of R.C. 2913.02(A)(1), a
fourth-degree felony. As part of his plea, Gunter agreed to $1,300 in restitution to the
victim. The remaining count was nolled.
{¶8} The trial court sentenced Gunter to 12 months on each offense and ordered that he serve them concurrently. The trial court further notified Gunter that he would be
subject to a discretionary period of three years of postrelease control and advised him of
the consequences for violating the conditions of that postrelease control.
III. Sentence
{¶9} In the first potential assignment of error, counsel argues that one could
argue that Gunter’s sentence was contrary to law or unsupported by clear and convincing
evidence.
{¶10} An appellate court must conduct a meaningful review of the trial court’s
sentencing decision. State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012- Ohio-1892, ¶ 7.
R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he appellate court’s
standard for review is not whether the sentencing court abused its discretion.” Rather,
the statute states that if we “clearly and convincingly” find that (1) “the record does not
support the sentencing court’s findings under [certain statutes that require findings, which
are not relevant here],” or that (2) “the sentence is otherwise contrary to law,” then we
“may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the
sentence and remand the matter to the sentencing court for re-sentencing.” R.C.
2953.08(G)(2).
{¶11} The Ohio Supreme Court has further explained:
We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an 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.
{¶12} The trial court has the full discretion to impose any term of imprisonment
within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11
and the guidelines contained in R.C. 2929.12. State v. Holmes, 8th Dist. Cuyahoga No.
99783, 2014-Ohio-603, ¶ 8.
{¶13} Under R.C. 2929.11(A), a felony sentence shall be reasonably calculated to
achieve two “overriding purposes”: (1) to protect the public from future crimes by the
offender, and (2) to punish the offender using the minimum sanctions the court
determines will achieve those purposes. Further, under R.C. 2929.11(B), the sentence
imposed for a felony must be commensurate with the seriousness of the offender’s
conduct and consistent with sentences imposed for similar crimes committed by similar
offenders.
{¶14} Under R.C. 2929.12(A), a court sentencing a felony offender has discretion
to determine the most effective way to comply with the purposes and principles of
sentencing outlined in the statute. In exercising its discretion, however, the sentencing
court must consider the seriousness, recidivism, and other mitigating factors set forth in
R.C. 2929.12. Id. Although the trial court must consider the purposes and principles
of sentencing as well as the mitigating factors, the court is not required to use particular
language or make specific findings on the record regarding its consideration of those
factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31;
State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. {¶15} And, of course, the trial court must comply with all other relevant
sentencing statutes. State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶
10.
{¶16} After reviewing the transcript of the sentencing hearing, we find that the
record overwhelmingly demonstrates that the trial court properly considered the purposes
and principles of felony sentencing and all of the relevant sentencing statutes. Thus, we
agree that there are no meritorious, non-frivolous issues for our review with respect to
Gunter’s sentence.
IV. Crim.R. 11
{¶17} In the second potential assignment of error, counsel states that it could be
argued that he did not voluntarily, intelligently, and knowingly enter into the plea.
{¶18} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure 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).
{¶19} To ensure that a plea to a felony charge is knowingly, intelligently, and
voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This
provision provides that the court must address defendants personally and (1) determine
that they understand the nature of the charges against them and of the maximum penalty
involved, (2) inform them of and determine that they understand the effect of a plea of
guilty or no contest and that the court may proceed with judgment and sentence, and (3) inform them of and determine that they understand the constitutional rights that they are
giving up by entering into their plea. Crim.R. 11(C)(2)(a)-(c). The United States
Supreme Court specified a defendant’s constitutional rights as (1) the Fifth Amendment
privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the
right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969).
{¶20} Crim.R. 11(C)(2)(c) sets forth a defendant’s constitutional rights as follows:
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.
{¶21} In differentiating between constitutional rights and nonconstitutional rights
under Crim.R. 11(C), courts have held that strict compliance with the rule is required if
the appellant raises a constitutional right delineated in Crim.R. 11(C)(2)(c). State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Substantial
compliance, however, is all that is required for nonconstitutional rights outlined in
Crim.R. 11(C)(2)(a) and (b). State v. Drake, 8th Dist. Cuyahoga No. 98640,
2013-Ohio-1984, ¶ 5, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).
{¶22} After conducting an independent review of the transcript of the plea hearing,
we find that the trial court engaged in a complete Crim.R. 11 colloquy with Gunter.
Thus, we agree that there are no meritorious, nonfrivolous issues for our review with
respect to Gunter’s plea. {¶23} Accordingly, we conclude that this appeal is wholly frivolous and grant
counsel’s motion to withdraw.
{¶24} Appeal dismissed.
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and ANITA LASTER MAYS, J., CONCUR