State v. Kerr

2014 Ohio 2031

• Court: Ohio Court of Appeals
• Decided: May 13, 2014
• Docket: 13 COA 044
• Status: Published

Opinion

[Cite as State v. Kerr, 2014-Ohio-2031.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 13 COA 044 ZACHARY S. KERR

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Anders

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 13, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL MATTHEW J. MALONE PROSECUTING ATTORNEY LAW OFFICE OF MATTHEW J. MALONE JOSHUA T. ASPIN 11-1/2 East 2nd Street ASSISTANT PROSECUTOR Ashland, Ohio 44805 110 Cottage Street, Third Floor Ashland, Ohio 44805 [Cite as State v. Kerr, 2014-Ohio-2031.]

Wise, J.

{¶1} Appellant Zachary S. Kerr, was convicted of one count of theft in violation

of R.C. 2913.02(A)(1), a felony of the fifth degree. Following his guilty plea, Appellant

was sentenced to a prison term of twelve months to be served consecutive to

Appellant’s sentence in an unrelated case.

{¶2} The charge arose from Appellant being in possession of a blank check

which did not belong to Appellant. Appellant admitted stealing the check and indicated

he had attempted to use the check at a local retailer, but the check was declined.

{¶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:

{¶5} “I. WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE

11 BEFORE ACCEPTING DEFENDANT-APPELLANT’S GUILTY PLEA.

{¶6} “II. 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 Ashland County, Case No. 13 COA 044 3

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.

I.

{¶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 plea

without 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 Ashland County, Case No. 13 COA 044 4

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

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. Ashland County, Case No. 13 COA 044 5

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. Further, because Appellant had a prior felony conviction, he was not required

to receive a community control sanction. R.C. 2929.13(B)(1)(a)(i).

{¶17} Having reviewed the sentence, sentencing factors found in R.C. 2929.12,

the facts surrounding the crime, and Appellant’s criminal history which precludes a

mandatory community control sanction, we also find the trial court did not abuse its

discretion in imposing the sentence in this case.

{¶18} For these reasons, the second potential assignment of error is overruled. Ashland County, Case No. 13 COA 044 6

{¶19} 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: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

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