[Cite as State v. Kaufman, 2014-Ohio-1575.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : KRISTOPHER KAUFMAN : Case No. 13-COA-026 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from The Court of Common Pleas, Case No. 13-CRI-031
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 11, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSHUA T. ASPIN MATTHEW J. MALONE Assistant Prosecuting Attorney 11 ½ East 2nd Street 110 Cottage Street, 3rd Floor Ashland, OH 44808 Ashland, OH 44805 Ashland County, Case No.13-COA-026 2
Farmer, J.
{¶1} Appellant, Kristopher Kaufman, was charged with one count of
Aggravated Arson in violation of R.C. 2909.02(A)(2), a felony of the second degree by
way of a bill of information. Appellant entered a guilty plea to the charge and was
sentenced to a prison term of seven years and ordered to pay restitution.
{¶2} The charge arose from Appellant setting his apartment on fire. There was
a second apartment in the same building as Appellant. No one was harmed in the fire
because the tenants in the second apartment were able to escape. This was not
Appellant’s first arson conviction. Appellant stated he set the fire because he wanted to
kill himself after a fight with his girlfriend. Appellant admitted to police he has a
fascination with fire.
{¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth two proposed
Assignments of Error. Appellant did not file a pro se brief alleging any additional
Assignments of Error.
{¶4} Counsel for Appellant raises the following potential assignments of error:
I.
{¶5} “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11
BEFORE ACCEPTING DEFENDANT-APPELLANT’S GUILTY PLEA.” Ashland County, Case No.13-COA-026 3
II
{¶6} “WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON
DEFENDANT-APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO
LAW AND/OR AN ABUSE OF DISCRETION.”
{¶7} 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.
{¶8} In his first assignment of error, Appellant suggests the trial court did not
comply with Crim.R. 11 in accepting Appellant’s plea.
{¶9} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally and to convey certain information to such defendant,
and makes clear that the trial court shall not accept a guilty plea or no contest without Ashland County, Case No.13-COA-026 4
performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶
10. Crim.R. 11(C)(2)(a) states the trial court must determine,
{¶10} * * * that the defendant is making the plea voluntarily, with the
understanding of the nature of the charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
{¶11} “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. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–
2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio
St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
{¶12} Though failure to adequately inform a defendant of his constitutional rights
would invalidate a guilty plea under a presumption that it was entered involuntarily and
unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. [ State v.. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant's] plea and determine whether he
subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d Ashland County, Case No.13-COA-026 5
86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 2012-Ohio-4843
appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.
{¶13} A review of the plea hearing reveals the trial court advised Appellant of his
constitutional rights, the potential penalties for the offense, and the possibility of post
release control. Further, the trial court inquired as to the voluntariness of Appellant’s
plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential
assignment of error is found to be without merit.
II.
{¶14} In his second assignment of error, Appellant challenges the sentence
imposed by the trial court.
{¶15} The Ohio Supreme Court has established a two-step analysis for
reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The
first step is to “examine the sentencing court's compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's
decision to be reviewed under an abuse-of-discretion standard. Id.
{¶16} We find the sentence was not clearly and convincingly contrary to law.
The sentence in this case was imposed within the statutory range provided in R.C.
2929.14. Having reviewed the sentence, sentencing factors found in R.C. 2929.12, the
facts surrounding the crime, and Appellant’s criminal history, we also find the trial court
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[Cite as State v. Kaufman, 2014-Ohio-1575.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : KRISTOPHER KAUFMAN : Case No. 13-COA-026 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from The Court of Common Pleas, Case No. 13-CRI-031
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 11, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSHUA T. ASPIN MATTHEW J. MALONE Assistant Prosecuting Attorney 11 ½ East 2nd Street 110 Cottage Street, 3rd Floor Ashland, OH 44808 Ashland, OH 44805 Ashland County, Case No.13-COA-026 2
Farmer, J.
{¶1} Appellant, Kristopher Kaufman, was charged with one count of
Aggravated Arson in violation of R.C. 2909.02(A)(2), a felony of the second degree by
way of a bill of information. Appellant entered a guilty plea to the charge and was
sentenced to a prison term of seven years and ordered to pay restitution.
{¶2} The charge arose from Appellant setting his apartment on fire. There was
a second apartment in the same building as Appellant. No one was harmed in the fire
because the tenants in the second apartment were able to escape. This was not
Appellant’s first arson conviction. Appellant stated he set the fire because he wanted to
kill himself after a fight with his girlfriend. Appellant admitted to police he has a
fascination with fire.
{¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth two proposed
Assignments of Error. Appellant did not file a pro se brief alleging any additional
Assignments of Error.
{¶4} Counsel for Appellant raises the following potential assignments of error:
I.
{¶5} “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11
BEFORE ACCEPTING DEFENDANT-APPELLANT’S GUILTY PLEA.” Ashland County, Case No.13-COA-026 3
II
{¶6} “WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON
DEFENDANT-APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO
LAW AND/OR AN ABUSE OF DISCRETION.”
{¶7} 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.
{¶8} In his first assignment of error, Appellant suggests the trial court did not
comply with Crim.R. 11 in accepting Appellant’s plea.
{¶9} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally and to convey certain information to such defendant,
and makes clear that the trial court shall not accept a guilty plea or no contest without Ashland County, Case No.13-COA-026 4
performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶
10. Crim.R. 11(C)(2)(a) states the trial court must determine,
{¶10} * * * that the defendant is making the plea voluntarily, with the
understanding of the nature of the charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
{¶11} “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. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–
2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio
St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
{¶12} Though failure to adequately inform a defendant of his constitutional rights
would invalidate a guilty plea under a presumption that it was entered involuntarily and
unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. [ State v.. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant's] plea and determine whether he
subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d Ashland County, Case No.13-COA-026 5
86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 2012-Ohio-4843
appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.
{¶13} A review of the plea hearing reveals the trial court advised Appellant of his
constitutional rights, the potential penalties for the offense, and the possibility of post
release control. Further, the trial court inquired as to the voluntariness of Appellant’s
plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential
assignment of error is found to be without merit.
II.
{¶14} In his second assignment of error, Appellant challenges the sentence
imposed by the trial court.
{¶15} The Ohio Supreme Court has established a two-step analysis for
reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The
first step is to “examine the sentencing court's compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's
decision to be reviewed under an abuse-of-discretion standard. Id.
{¶16} We find the sentence was not clearly and convincingly contrary to law.
The sentence in this case was imposed within the statutory range provided in R.C.
2929.14. Having reviewed the sentence, sentencing factors found in R.C. 2929.12, the
facts surrounding the crime, and Appellant’s criminal history, we also find the trial court
did not abuse its discretion in imposing the sentence in this case.
{¶17} The second potential assignment of error is overruled. Ashland County, Case No.13-COA-026 6
{¶18} After independently reviewing the record, we agree with 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 Ashland County Court of Common Pleas.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
SGF/as 328