State v. Lamb

2022 Ohio 1300

• Court: Ohio Court of Appeals
• Decided: April 18, 2022
• Docket: 21 CAC 09 0047
• Status: Published

Opinion

[Cite as State v. Lamb, 2022-Ohio-1300.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : THOMAS E. LAMB : Case No. 21 CAC 09 0047 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21 CRB 01057

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 18, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMELIA BEAN-DEFLUMER JOEL M. SPITZER 70 N. Union Street 97 S. Liberty Street Delaware, OH 43015 Powell, OH 43065 Delaware County, Case No. 21 CAC 09 0047 2

Wise, Earle, P.J.

{¶ 1} Defendant-Appellant, Thomas E. Lamb, appeals his August 13, 2021

conviction and sentence from the Municipal Court of Delaware County, Ohio. Plaintiff-

Appellee is the state of Ohio.

Facts and Procedural History

{¶ 2} On August 5, 2021, a complaint was filed against appellant in the Delaware

County Municipal Court charging him with one count of aggravated menacing in violation

of R.C. 2903.21(A), a misdemeanor of the first degree. On August 31, 2021, appellant

pled no contest, the trial court found him guilty and convicted him. By entry filed August

31, 2021, the trial court sentenced appellant to a term of community control with

conditions, and a fine.

{¶ 3} This matter is now before this court for consideration.

{¶ 4} In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) the Supreme

Court of the United States held if, after a conscientious examination of the record, a

defendant's counsel concludes the case is wholly frivolous, then counsel should so advise

the court and request permission to withdraw. Anders at 744. Counsel must accompany

his/her request with a brief identifying anything in the record that could arguably support

the defendant's appeal. Id. Counsel also must: (1) furnish the defendant with a copy of

the brief and request to withdraw; and, (2) allow the defendant sufficient time to raise any

matters that the defendant 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 the counsel's request to withdraw and dismiss the Delaware County, Case No. 21 CAC 09 0047 3

appeal without violating constitutional requirements, or may proceed to a decision on the

merits if state law so requires. Id.

{¶ 5} Appellate counsel's brief lists the following assignments of error:

I

{¶ 6} "APPELLANT’S FIRST POTENTIAL ARGUMENT OF INEFFECTIVE

ASSISTANCE OF COUNSEL."

II

{¶ 7} "APPELLANT’S SECOND POTENTIAL OHIO CRIMINAL RULE 11

ARGUMENT THAT THE TRIAL COURT ERRED BY ACCEPTING HIS "NO CONTEST"

PLEA."

I, II

{¶ 8} In the listed assignments of error, appellate counsel suggests there are no

issues that would not be considered frivolous regarding the assistance of effective legal

counsel, and appellant's plea of no contest.

Assistance of Effective Legal Counsel

{¶ 9} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. Appellant must establish the following:

2. Counsel's performance will not be deemed ineffective unless and

until counsel's performance is proved to have fallen below an

objective standard of reasonable representation and, in addition,

prejudice arises from counsel's performance. (State v. Lytle [1976], Delaware County, Case No. 21 CAC 09 0047 4

48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v.

Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

followed.)

3. To show that a defendant has been prejudiced by counsel's

deficient performance, the defendant must prove that there exists a

reasonable probability that, were it not for counsel's errors, the result

of the trial would have been different.

{¶ 10} In the Anders brief at 6, appellate counsel essentially states that even if trial

counsel's performance could somehow be construed as ineffective, appellant still could

not demonstrate the outcome would have been different, in other words that he would not

have entered his no contest plea. We agree. A complete review of the record does not

show any deficiency by trial counsel, nor that appellant suffered any prejudice. August

31, 2021 Plea Hearing and Sentencing Transcript.

Guilty Plea

{¶ 11} A trial court's duty when accepting a plea differs based upon the level of

offense to which the defendant is pleading. State v. Jones, 116 Ohio St.3d 211, 2007-

Ohio-6093, 877 N.E.2d 677, citing State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419,

788 N.E.2d 635, ¶ 25. Here appellant pled to a petty offense as defined by Crim.R. 2(D).

{¶ 12} In the Anders brief at page 6 appellate counsel cites our decision in State

v. Lindenmayer, 5th Dist. 08-CA-142, No. 2009-Ohio-3982 wherein we discussed a trial

court's obligations in accepting a plea of no contest to a petty offense pursuant to Crim.R. Delaware County, Case No. 21 CAC 09 0047 5

11(E). We noted Crim.R. 11(E) does not put the same stringent requirements upon a trial

court as Crim.R. 11(C). At paragraph 57 of that opinion we found:

[F]or a no contest plea to a petty misdemeanor offense, "a defendant

must be informed that the plea of no contest is not an admission of

guilt but is an admission of the truth of the facts alleged in the

complaint, and that the plea or admission shall not be used against

the defendant in any subsequent civil or criminal proceeding." Jones,

supra, at ¶ 23. In other words, "to satisfy the requirement of informing

a defendant of the effect of a plea, a trial court must inform the

defendant of the appropriate language under Crim. R. 11(B)." In this

case, the court would have had to inform Appellant that her "plea of

no contest is not an admission of defendant's guilt, but is an

admission of the truth of the facts alleged in the indictment,

information, or complaint, and the plea or admission shall not be

used against the defendant in any subsequent civil or criminal

proceeding."

{¶ 13} In the Anders brief at 9, appellate counsel states, "* * * counsel believes

Appellant would be unsuccessful in arguing that the Court's acceptance of his no contest

plea was out of compliance with Crim.R. 11(B)." We agree. A complete review of the

record demonstrates the trial court complied with the applicable portions of Crim.R. 11.

August 31, 2021 T. at 3-5; Record at 22. Appellant stated he understood that by entering Delaware County, Case No. 21 CAC 09 0047 6

a no contest plea he was not admitting guilt but was admitting to the truth of the facts set

forth in the complaint. T. at 4.

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

conclusion that no arguably meritorious claims exist upon which to base an appeal. We

therefore find the appeal to be wholly frivolous under Anders, grant counsel's request to

withdraw, and affirm the judgment of the trial court.

{¶ 15} The judgment of the Municipal Court of Delaware County, Ohio, is hereby

affirmed.

By Wise, Earle, P.J.

Hoffman, J. and

Wise, J., J. concur.

EEW/rw