State v. Hammond

2024 Ohio 2511

• Court: Ohio Court of Appeals
• Decided: June 28, 2024
• Docket: CT2023-0092
• Status: Published

Opinion

[Cite as State v. Hammond, 2024-Ohio-2511.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. laintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. CT2023-0092 JORDAN HAMMOND

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2023-0446

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 28, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD WELCH APRIL F. CAMPBELL PROSECUTING ATTORNEY CAMPBELL LAW, LLC MICHAEL HUGHES 545 Metro Place South, Suite 100 ASSISTANT PROSECUTOR Dublin, Ohio 43017 27 North Fifth Street Zanesville, Ohio 43701 Muskingum County, Case No. CT2023-0092 2

Wise, J.

{¶1} Defendant-Appellant Jordan L. Hammond appeals his convictions and

sentence on three counts of disseminating harmful matter to a juvenile, following a guilty

plea, in the Muskingum County Court of Common Pleas.

{¶2} Plaintiff-Appellee, the state of Ohio, has not filed a brief in this matter.

Facts and Procedural History

{¶3} The relevant facts and procedural history are as follows:

{¶4} In September 2022, a fourteen-year-old girl reported to her step-mother that

Appellant Jordan L. Hammond sent her pictures of his penis. The victim’s stepmother, in

turn, called the police. (Plea Tr. at 12).

{¶5} On July 20, 2033, a Muskingum County Grand Jury indicted Appellant

Jordan L. Hammond on three counts of disseminating harmful matter to a juvenile, in

violation of R.C. §2907.31(A)(1), fifth-degree felonies.

{¶6} At the time of these charges, Appellant was on felony probation in Franklin

County. (Plea Tr. at 6).

{¶7} Appellant initially entered pleas of not guilty.

{¶8} On September 18, 2023, at a change of plea hearing, Appellant pled guilty

to the offenses as indicted. Pursuant to a plea agreement, the parties agreed to jointly

recommend an aggregate eighteen-month prison term. (Plea Tr. at 4).

{¶9} During the plea hearing, the trial court entered a colloquy with Appellant, in

which it explained what the potential penalties were, including the maximum penalties.

(Plea Tr. 4-20). The court advised Appellant as to what rights he was giving up by Muskingum County, Case No. CT2023-0092 3

changing his pleas to guilty. Id. Appellant indicated that he understood what he was giving

up, and what the potential penalties were, in pleading guilty. Id.

{¶10} Counsel for Appellant also advised the court that the plea form was

accurate, that he reviewed the plea form with Appellant, and that Appellant signed the

forms in front of him. (Plea Tr. at 4). He stated that he believed Appellant was entering

his pleas knowingly, intelligently, and voluntarily. Id.

{¶11} In accepting Appellant’s plea, the trial court informed Appellant that it was

not required to follow the jointly recommended sentence. (Plea Tr. at 9-10).

{¶12} Initially Appellant wanted to waive his pre-sentence investigation report and

be sentenced that day. (Plea Tr. at 12-13). However, after speaking with Appellant, the

trial court decided it wanted to see the pre-sentence investigation report prior to

sentencing. (Plea Tr. at 20).

{¶13} On October 30, 2023, at the sentencing hearing, the State recommended

that Appellant serve the eighteen (18) month prison term, as agreed. (Sent. Tr. 4).

Instead, the trial court imposed twelve (12) months on each charge, to be served

consecutively, for an aggregate prison term of thirty-six (36) months. The trial court also

imposed post-release control and gave Appellant 84 days jail time credit. (Sent. Tr. 4;

11/2/2023 Entry).

{¶14} During the sentencing hearing, the trial court referred to the pre-sentence

investigation report. (Sent. Tr. at 6). It noted Appellant’s record, which was not only

extensive but included two prior prison sentences and two open warrants that Appellant

had when he was charged on these new offenses. (Sent. Tr. 6-12). The trial court also

noted that Appellant was on felony probation at the time as well. (Sent. Tr. at 6). Muskingum County, Case No. CT2023-0092 4

{¶15} Appellant now appeals.

Proposed Assignment of Error

{¶16} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating

that the within appeal was wholly frivolous and setting forth one proposed assignment of

error:

{¶17} “I. THE TRIAL COURT ERRED IN ACCEPTING HAMMOND'S GUILTY

PLEAS UNDER CRIM.R. 11 AND ERRED IN SENTENCING HAMMOND.”

{¶18} This Court issued a judgment entry notifying Appellant that his counsel filed

an Anders brief and allowing Appellant to file a pro se brief. Appellant has not filed a pro

se brief.

Anders Law and Analysis

{¶19} 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,

he should so advise the court and request permission to withdraw. Id. Counsel may

accompany his or her request with a brief identifying anything in the record that could

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

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

any matters that the client chooses. Id.

{¶20} 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 Muskingum County, Case No. CT2023-0092 5

constitutional requirements, or may proceed to a decision on the merits if state law so

requires. Id.

{¶21} By Judgment Entry filed March 14, 2024, this Court noted that counsel had

filed an Anders brief and had indicated to the Court that he had served Appellant with the

brief. Accordingly, this Court notified Appellant via Certified U.S. Mail that he “may file a

pro se brief in support of the appeal within 60 days of the date of this entry.”

{¶22} As stated above, Appellant has not filed a pro se brief in this matter.

{¶23} We find Appellant’s counsel in this matter has adequately followed the

procedures required by Anders.

{¶24} As Appellant did not submit a pro se brief and the state of Ohio did not file

a response brief, this Court will review the proposed potential assignment of error and will

undertake, pursuant to Anders, to fully examine the proceedings to decide if this appeal

is indeed wholly frivolous

I.

{¶25} In the sole proposed assignment of error, counsel proposes that the trial

court erred in accepting Appellant’s guilty plea and erred in sentencing. We disagree.

Guilty Plea

{¶26} Crim.R. 11 requires guilty pleas to be made knowingly, intelligently, and

voluntarily. Although literal compliance with Crim.R. 11 is preferred, the trial court need

only “substantially comply” with the rule when dealing with the non-constitutional elements

of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475(1981), citing State v. Stewart,

51 Ohio St.2d 86(1977). Muskingum County, Case No. CT2023-0092 6

{¶27} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses

against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the

state must prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that the

defendant cannot be compelled to testify against himself. State v. Veney, 2008-Ohio-

5200, ¶ 19. If the trial court fails to strictly comply with these requirements, the defendant's

plea is invalid. Id. at ¶ 31.

{¶28} The non-constitutional rights that the defendant must be informed of are: (1)

the nature of the charges; (2) the maximum penalty involved, which includes, if applicable,

an advisement on post-release control; (3) if applicable, that the defendant is not eligible

for probation or the imposition of community control sanctions; and (4) that after entering

a guilty plea or a no contest plea, the court may proceed directly to judgment and

sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 2008-Ohio-509,

¶ 19-26, (post-release control is a non-constitutional advisement).

{¶29} For the non-constitutional rights, the trial court must substantially comply

with Crim.R. 11’s mandates. State v. Nero, 56 Ohio St.3d 106, 108(1990). “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.” Veney, 2008-Ohio-

5200, at ¶15. Furthermore, a defendant who challenges his guilty plea on the basis that

the advisement for the non-constitutional rights did not substantially comply with Crim.R.

11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have been

otherwise entered. Veney at ¶15; State v. Stewart, 51 Ohio St.2d 86, 93(1977).

{¶30} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo

standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109 (1990); State v. Lebron, Muskingum County, Case No. CT2023-0092 7

2020-Ohio-1507, ¶9 (8th Dist.) State v. Groves, 2019 CA 00033, 2019-Ohio-5025, ¶7 (5th

Dist.).

{¶31} Here, we find that the record reflects that Appellant’s guilty plea was made

knowingly, intelligently and voluntarily.

{¶32} Evidence of a written waiver form signed by the accused is strong proof that

the waiver was valid. State v. Clark, 38 Ohio St.3d 252, 261 (1988); see North Carolina

v. Butler, 441 U.S. 369, 374-375 (1979); State v. Dennis, 1997-Ohio-372. In the case at

bar, we note a written plea of guilty form was signed by Appellant and his attorney and

filed in the trial court. In addition, Appellant acknowledged to the trial judge that he read

the plea forms, and he reviewed the plea forms with his attorney. (Plea T. 4-20). The plea

agreement was read on the record. Id. Appellant acknowledged that he understood the

plea forms. Id. The trial judge informed Appellant that he was not obligated to accept the

joint sentencing recommendation. Id. Appellant further assured the trial judge that he was

satisfied with his attorney. Id.

{¶33} The trial court explained to Appellant he had the right to a jury trial; the right

to the confrontation of witnesses against him; that the state must prove the defendant's

guilt beyond a reasonable doubt at trial; and that he cannot be compelled to testify against

himself. (Plea Tr. 4-20). The judge also explained the maximum penalty involved, which

included post-release control. Id.

{¶34} The record demonstrates the trial court carefully adhered to Criminal Rule

11, and strictly complied with all of the requirements of Criminal Rule 11. The trial judge

conducted a complete and thorough colloquy. Appellant acknowledged he understood his

rights, the charges, the plea agreement, the maximum penalties, and the specific Muskingum County, Case No. CT2023-0092 8

constitutional rights he was waving with the plea. The record further supports that the trial

judge substantially complied with Crim.R. 11’s mandates for non-constitutional rights.

{¶35} The record supports a conclusion that the pleas were properly entered and

accepted. The record in this case shows the trial court's compliance with Criminal Rule

11 and supports the trial court's determination that Appellant's pleas were knowingly,

intelligently, and voluntarily made.

{¶36} Thus, after independently reviewing the record we find no arguably

meritorious issues exist with respect to whether Appellant’s guilty pleas were made

knowingly, intelligently, and voluntarily.

Sentence

{¶37} Here, the sentence imposed by the trial court was within the range permitted

by law, and not contrary to law.

{¶38} Before a trial court imposes consecutive sentences, it must make specific

findings which are delineated in R.C. §2929.14(C)(4). Specifically, the trial court must find

that “the consecutive sentence is necessary to protect the public from future crime or to

punish the offender.” Id. It must also find that “consecutive sentences are not

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

offender poses to the public.” Id. Finally, the court must find at least one of the following:

(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. Muskingum County, Case No. CT2023-0092 9

(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.

{¶39} R.C. §2953.08(G)(2) does not allow an appellate court to reverse or modify

a defendant's consecutive sentences using the principles and purposes of felony

sentencing as set forth in R.C. 2929.11(A) and (B) and the seriousness and recidivism

factors in R.C. 2929.12. State v. Gwynne, 2019-Ohio-4761, ¶ 13-18. (“Gwynne II”); State

v. Jones, 2020-Ohio-6729, ¶ 39; State v. Toles, 2021-Ohio-3531, ¶ 10.

{¶40} Though “a trial court is required to make the findings mandated by

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, * * * it has no obligation to state reasons to support its findings. Nor is it required to

give a talismanic incantation of the words of the statute, provided that the necessary

findings can be found in the record and are incorporated into the sentencing entry.” State

v. Bonnell, 2014-Ohio-3177, ¶ 37.

{¶41} R.C. §2953.08(G) instructs appellate courts reviewing the imposition of

consecutive sentences, as follows: Muskingum County, Case No. CT2023-0092 10

(2) The court hearing an appeal under [R.C. 2953.08(A), (B), or (C)]

shall review the record, including the findings underlying the sentence or

modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under [R.C. 2929.14(C)(4)];

(b) That the sentence is otherwise contrary to law.

{¶42} Upon review, we find that no arguably meritorious issues exist with respect

to whether Appellant's sentence is contrary to law.

{¶43} A failure to make the findings required by R.C. §2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, 2014-Ohio-3177, at ¶ 34. The findings

required by R.C. §2929.14(C)(4) must be made at the sentencing hearing and included

in the sentencing entry. Id. at the syllabus. However, a trial court's inadvertent failure to

incorporate the statutory findings in the sentencing entry after properly making those

findings at the sentencing hearing does not render the sentence contrary to law; rather,

such a clerical mistake may be corrected by the court through a nunc pro tunc entry to

reflect what actually occurred in open court. Bonnell, 2014-Ohio-3177, at ¶ 30. Muskingum County, Case No. CT2023-0092 11

{¶44} In this case, the record supports a conclusion that the trial court made all of

the findings required by R.C. §2929.14(C)(4) at the time it imposed consecutive

sentences.

{¶45} The trial court reviewed the pre-sentence investigation report. (Sent. Tr. at

6). The judge further found that Appellant committed multiple offenses and that the harm

caused by two or more of the offenses was so great or unusual that no single prison term

for any of the offenses adequately reflect the seriousness in this case. (Sent. Tr. at 13-

14). The judge found that consecutive sentences are not disproportionate to the

seriousness of the conduct and the danger posed by the public and that consecutive

sentences are necessary to protect the public and punish Appellant. Id. In finding that

consecutive sentences were warranted in Appellant's case, the trial court noted that

Appellant committed these offenses while he was on felony probation and had two active

warrants for his arrest. Id.

{¶46} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentence was within the

statutory sentencing range. We also find that the record in the case at bar supports the

trial court's findings under R.C. §2929.14(C)(4). The trial court made the findings

necessary for the discretionary imposition of consecutive sentences under R.C.

§2929.14(C)(4), and those findings were not clearly and convincingly unsupported by the

record, R.C. §2953.08(G)(2). Jones at ¶17.

{¶47} Thus, after independently reviewing the record we find no arguably

meritorious issues exist with respect to whether Appellant's sentence was contrary to law. Muskingum County, Case No. CT2023-0092 12

{¶48} Accordingly, Appellant’s proposed assignment of error is overruled.

Conclusion

{¶49} After independently reviewing the record, we agree with appellate counsel's

conclusion that 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 Court of Common Pleas of Muskingum County,

Ohio.

By: Wise, J.

Hoffman, P. J., and

King, J., concur.

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