State v. Hamilton

2023 Ohio 4192

Opinion

[Cite as State v. Hamilton, 2023-Ohio-4192.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Andrew J. King, J. -vs- Case No. CT2023-0025 JONATHAN HAMILTON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022- 0025

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 20, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH, ESQ. CHRIS BRIGDON Muskingum County Prosecutor 8138 Somerset Road 27 North Fifth Street Thornville, Ohio 43076 P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2023-0025 2

Hoffman, P.J. {¶1} This matter comes before the Court upon the Anders brief filed by counsel

for defendant-appellant Jonathan Hamilton, following a jury trial.

STATEMENT OF THE CASE

{¶2} On October 20, 2022, the Muskingum County Grand Jury indicted Appellant

on four (4) counts of endangering children, in violation of R.C. 2919.22(B)(1) and

(E)(2)(d), felonies of the second degree; eight (8) counts of gross sexual imposition, in

violation of R.C. 2907.05(A)(4) and (B), with attendant sexually violent predator

specifications, felonies of the third degree; and nine (9) counts of rape, in violation of R.C.

2907.02(A)(1), with attendant sexually violent predator specifications, felonies of the first

degree. Appellant appeared before the trial court for arraignment on November 2, 2022,

and entered a plea of not guilty to the Indictment.

{¶3} The matter proceeded to jury trial on March 27, 2023. After three days of

testimony, the jury found Appellant guilty of eight (8) counts of gross sexual imposition

and seven (7) counts of rape, but not guilty of the four (4) counts of endangering children

and two (2) of the rape counts. On April 17, 2023, the trial court sentenced to a period of

incarceration of two (2) years to life plus three (3) mandatory prison terms of life without

parole. Appellant filed a timely Notice of Appeal on April 25, 2023.

{¶4} On July 14, 2023, counsel for Appellant filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating there are no

meritorious issues for appeal and thus, these matters are wholly frivolous. Counsel did

not set forth any potential assignments of error, but included two subsections which we

shall consider as potential assignments of error: Muskingum County, Case No. CT2023-0025 3

I. JURY TRIAL

II. SENTENCING

Anders v. California

{¶5} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant's counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with

a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise

any matters that the client chooses. Id. Once the defendant's counsel satisfies these

requirements, the appellate court must fully examine the proceedings below to determine

if any arguably meritorious issues exist. If the appellate court also determines that the

appeal is wholly 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.

{¶6} “Anders equates a frivolous appeal with one that presents issues lacking in

arguable merit. An issue does not lack arguable merit merely because the prosecution

can be expected to present a strong argument in reply or because it is uncertain whether

a defendant will prevail on the issue on appeal. “An issue lacks arguable merit if, on the

facts and law involved, no responsible contention can be made that it offers a basis for

reversal.” State v. Pullen, 2nd Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4; State

v. Marbury, 2nd Dist. Montgomery App. No. 19226, 2003-Ohio-3242, ¶ 7-8; State v.

Chessman, 161 Ohio App.3d 140, 829 N.E.2d 748, 2005-Ohio-2511 (2nd Dist.), ¶ 16-17 Muskingum County, Case No. CT2023-0025 4

(quoting the same).” State v. Moore, 2nd Dist. Greene App. No. 07-CA-97, 2009-Ohio-

1416, ¶4.

{¶7} Counsel for Appellant included a Certificate of Service, verifying he served

Appellant with a copy of the brief. This Court issued a judgment entry notifying Appellant

his counsel filed an Anders brief, and informing Appellant he could file a pro se brief within

sixty days of the entry. Appellant has not filed a pro se brief and this Court has not

received a responsive brief from the state.

{¶8} We now turn to the potential assignments of error.

I.

{¶9} In the subsection “Jury Trial,” counsel for Appellant reviews a potential

challenge to the sufficiency and weight of the evidence.

{¶10} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.” Muskingum County, Case No. CT2023-0025 5

{¶11} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶12} A jury is free to accept or reject any and all of the evidence offered by the

parties and assess the witness' credibility. “While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence”. State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v.

Nivens (May 28, 1996), Franklin App. No. 95APA09-1236.

{¶13} The trier of fact, in this case the jury, was vested with the authority to weigh

the evidence and assess the credibility of the witnesses. State v. DeHass (1967), 10 Ohio

St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. Moreover, the

jury was free to believe some, all, or none of the testimony of any witnesses. Domigan v.

Gillette (1984), 17 Ohio App.3d 228, 229, 17 OBR 494, 479 N.E.2d 291.

{¶14} The jury found Appellant not guilty of the four (4) endangering children

counts and two (2) of the nine (9) rape counts. These verdicts indicate the jury carefully

assessed all of the evidence presented at trial; therefore, we would not find the jury clearly Muskingum County, Case No. CT2023-0025 6

lost its way and created such a manifest miscarriage of justice that the convictions must

be overturned and a new trial ordered.

{¶15} Upon our review of the record, we find Appellant's convictions are supported

by sufficient evidence and are not against the manifest weight of the evidence. We agree

with appellate counsel there is no merit to a potential challenge to the sufficiency or weight

of the evidence.

II.

{¶16} In the subsection “Sentencing,” counsel reviews a potential challenge to

Appellant’s sentence.

{¶17} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,

citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for sentencing where we clearly and convincingly find either the record does

not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law. Id.,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

{¶18} When sentencing a defendant, the trial court must consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-

Ohio-5025, ¶ 7.

{¶19} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others, to punish the offender, and to promote the Muskingum County, Case No. CT2023-0025 7

effective rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). To achieve these purposes, the

sentencing court shall consider the need for incapacitating the offender, deterring the

offender and others from future crime, rehabilitating the offender, and making restitution

to the victim of the offense, the public, or both. Id. Further, the sentence imposed shall be

“commensurate with and not demeaning to the seriousness of the offender's conduct and

its impact on the victim, and consistent with sentences imposed for similar crimes by

similar offenders.” R.C. 2929.11(B).

{¶20} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion, but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

{¶21} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh

the evidence in the record and substitute our own judgment for that of the trial court to

determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.

2929.12. State v. Jones, 1163 Ohio St.3d 242, 69 N.E.3d 649, 2020-Ohio-6729, ¶ 42.

Instead, we may only determine if the sentence is contrary to law.

{¶22} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant Muskingum County, Case No. CT2023-0025 8

within the permissible statutory range.” State v. Pettorini, 5th Dist. Licking No. 2020 CA

00057, 2021-Ohio-1512, 2021 WL 1714216, ¶¶ 14-16 quoting State v. Dinka, 12th Dist.

Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.

{¶23} Upon our review of the record, we find Appellant's sentence is not clearly

and convincingly contrary to law. The trial court considered the principles and purposes

of R.C. 2929.11, and the factors set forth in R.C. 2929.12. The sentences were within

the permissible statutory ranges. We agree with appellate counsel there is no merit to a

potential challenge to Appellant’s sentence.

{¶24} For these reasons, after independently reviewing the record, we agree with

counsel’s conclusion no arguably meritorious claims exist upon which to base an appeal.

Hence, we find the appeal to be wholly frivolous under Anders, grant counsel’s request

to withdraw, and affirm the judgment of the trial court.

{¶25} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Hoffman, P.J. Delaney, J. and King, J. concur