State v. Mamone

2023 Ohio 1167

• Court: Ohio Court of Appeals
• Decided: April 7, 2023
• Docket: 22 CAC 06 0042
• Status: Published

Opinion

[Cite as State v. Mamone, 2023-Ohio-1167.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 22 CAC 06 0042 JOHN MAMONE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 22 CRB 00209

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 7, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMELIA BEAN-DeFLUMER TODD A. WORKMAN CITY PROSECUTOR WORKMAN LAW FIRM 70 North Union Street P. O. Box 687 Delaware, Ohio 43015 Delaware, Ohio 43015 Delaware County, Case No. 22 CAC 06 0042 2

Wise, J.

{¶1} Defendant-Appellant John Mamone appeals his conviction and sentence on

one count of aggravated menacing following a jury trial in the Delaware County Municipal

Court.

Facts and Procedural History

{¶2} On March 4, 2022, Appellant John Mamone was indicted on one count of

Domestic Violence, in violation of R.C. §2919.25(C), a fourth-degree misdemeanor, and

one count of Aggravated Menacing, in violation of R.C. §2903.21, a first-degree

misdemeanor.

{¶3} The charges arise from an incident which occurred on February 1, 2022,

when Appellant sent his brother-in-law Michael, a message stating:

Tell Stephanie I said fuck you cunt. As for everyone, stay fucking

tuned because I about to eulogize all those mother fucking family members.

If any of them see me, they should drop everything and run for their fucking

lives. Notice the nuance. If I don’t see them, they are safe. If they fuck with

me more, it’s trouble but they all earned their public eulogizing. You can

warn them, but I have many accounts; they can’t keep it off their walls.

{¶4} On April 27, 2022, Appellant entered a not guilty plea to both counts with no

counsel present.

{¶5} On April 29, 2022, an attorney was appointed to represent Appellant.

{¶6} On May 19, 2022, a jury trial commenced in this matter. Prior to opening

statements, the state of Ohio dismissed the domestic violence charge. Delaware County, Case No. 22 CAC 06 0042 3

{¶7} At trial, the jury heard testimony from Appellant’s half-sister Stephanie

Mamone-Kolcun and her husband Michael Kolcun, as well as Deputy Andrew Ritter from

the Delaware County Sheriff’s Office. The jury also heard testimony from Appellant who

testified in his own defense.

{¶8} At the conclusion of the trial, the jury found Appellant guilty on the sole count

of aggravated menacing.

{¶9} The trial court sentenced Appellant to 180 days in jail, with 120 days

suspended, a $200.00 fine, and two (2) years of intensive supervision with community

control.

{¶10} Appellant was also ordered to continue with OSU mental health, comply

with a post-conviction no-contact order, and to have GPS monitoring in place prior to

release from jail. GPS was ordered to be paid by the court.

{¶11} Appellant now appeals.

Assignments of Error

{¶12} Counsel for Appellant Mamone 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)

asserting three potential assignments of error:

{¶13} “I. THE APPELLANT’S RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED UNDER THE SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION WAS NOT VIOLATED BY TRIAL COUNSEL BASED UPON

THE RECORD BEFORE THIS COURT. Delaware County, Case No. 22 CAC 06 0042 4

{¶14} “II. APPELLANT’S PLEA OF GUILTY WAS VOLUNTARILY GIVEN BASED

UPON THE RECORD BEFORE THIS COURT.

{¶15} “III. APPELLANT’S AGGREGATED SENTENCE IS NOT

DISPROPORTIONATE TO THE CRIMES COMMITTED.

Law and Analysis

{¶16} 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. 386 U.S. 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.

{¶17} By Judgment Entry filed October 25, 2022, 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 from the date of this entry.”

{¶18} Appellant has not filed a pro se brief Delaware County, Case No. 22 CAC 06 0042 5

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

procedures required by Anders.

{¶20} 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 assignments of error and

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

appeal is indeed wholly frivolous.

I.

Ineffective Assistance of counsel

{¶21} Was Appellant denied the effective assistance of counsel?

{¶22} A claim for ineffective assistance of counsel requires a two-prong analysis.

The first prong entails a review regarding whether counsel's performance fell below an

objective standard of reasonable representation involving a substantial violation of any of

defense counsel's essential duties to Appellant. The second prong entails a review

regarding whether Appellant was prejudiced by counsel's ineffectiveness. Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley

(1989), 42 Ohio St.3d 136, 538 N.E.2d 373. "Prejudice from defective representation

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial

counsel." State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (citing Lockhart

v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180). The United States

Supreme Court and the Ohio Supreme Court have both held that a reviewing court "need

not determine whether counsel's performance was deficient before examining the Delaware County, Case No. 22 CAC 06 0042 6

prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley, 42

Ohio St.3d at 143 (citing Strickland, 466 U.S. at 697).

{¶23} Appellant herein claims that his trial counsel failed to properly inform him of

the effects of pleading guilty as opposed to going to trial, and the possible sentences that

could result from either course of action.

{¶24} Upon review of the record, we find that trial counsel stated on the record

that he informed Appellant that the court was likely to sentence him to jail time if he

proceeded to trial. (T. at 190). Appellant raised no concerns or objections to the trial court.

{¶25} Upon review, we do not find that Appellant’s counsel was ineffective.

II.

Guilty Plea

{¶26} Was Appellant’s guilty plea voluntarily given?

{¶27} Counsel herein argues that Appellant was not properly instructed by the trial

court as to the possibility of incarceration at the time of the change of plea in this matter.

{¶28} Upon review, we find this argument misplaced as Appellant herein did not

enter a guilty plea but rather proceeded to trial by jury. As such, we find said assignment

and counsel’s argument not well-taken and overrule same.

III.

Sentencing

{¶29} Did the trial court err in sentencing?

{¶30} More specifically, was Appellant’s sentence commensurate with his

conduct? Delaware County, Case No. 22 CAC 06 0042 7

{¶31} R.C. §2929.22, the misdemeanor sentencing statute, lists factors a trial

court must consider in determining the appropriate sentence to impose:

(a) The nature and circumstances of the offense or offenses;

(b) Whether the circumstances regarding the offender and the

offense or offenses indicate that the offender has a history of persistent

criminal activity and that the offender's character and condition reveal a

substantial risk that the offender will commit another offense;

(c) Whether the circumstances regarding the offender and the

offense or offenses indicate that the offender's history, character, and

condition reveal a substantial risk that the offender will be a danger to others

and that the offender's conduct has been characterized by a pattern of

repetitive, compulsive, or aggressive behavior with heedless indifference to

the consequences;

(d) Whether the victim's youth, age, disability, or other factors made

the victim particularly vulnerable to the offense or made the impact of the

offense more serious;

(e) Whether the offender is likely to commit future crimes in general,

in addition to the circumstances described in divisions (B)(1)(b) and (c) of

this section.

R.C. §2929.22(B)(1).

{¶32} Misdemeanor sentences are reviewed for an abuse of discretion. R.C.

§2929.22; State v. Frazier, 158 Ohio App.3d 407, 2004–Ohio–4506, 815 N.E.2d 1155, at

¶ 15. An abuse of discretion means more than an error of judgment; it implies that the Delaware County, Case No. 22 CAC 06 0042 8

trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Adams

(1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.

{¶33} Appellant herein was charged with Aggravated Menacing, in violation of

R.C. §2903.21, a first degree misdemeanor. A first-degree misdemeanor is punishable

by a sentence of up to 180 days in jail and a $1,000.00 fine. Here, the trial court imposed

a sentence of 180 days in jail, with 120 days suspended, a $200 fine, and two (2) years

of community control. As such, the trial court's sentence was well within the statutory

range and is not contrary to law.

{¶34} Additionally, prior to imposing sentence, the trial court considered the nature

of the crime, the seriousness of the offense, the victims’ testimony at trial and their

statements. The trial court also took into consideration Appellant's lack of a criminal

history.

{¶35} Prior to imposing sentence, the trial court stated on the record:

So I have concerns. So as far as an aggravated menacing goes, I

will tell you that this is perhaps one of the worst forms of an aggravated

menacing. You’re threatening to kill people, that’s as bad as it gets in your

putting it in writing and your sending it out. That’s as bad as it gets

You don’t have a record. I do give way to that, but I give weight to

what I saw here in the courtroom over the course of this day, that there were

two people who were afraid of you who should not have been afraid of you.

Your half-sister and her husband had to come to court and testify that they

were afraid, that they were on alert; they’re watching where they’re going

because they don’t quite frankly trust that nothing’s going to happen Delaware County, Case No. 22 CAC 06 0042 9

So I’m going to order the following. I do consider the purposes – –

the primary purposes of misdemeanor sentencing. I do consider the factors

outlined in the statute. I will – – I accepted the verdict. You have been found

guilty of aggravated menacing. I will order the following, a $200 fine and

court costs. I will give you 90 days to pay that and the ability to work it off

with community service.

I am ordering all 180 days in jail, 120 of them will be suspended. You

will serve 60 days jail with credit for two and you will go forth with.

Now when you get out of jail, you will be on a period of intensive

supervision with the community control office for two years. You must report

to the community control office once you’re out of jail. I do want you to do a

mental health evaluation and I hope we can start that while you are in jail.

If you’ve done one recently with your doctor, sign a release and we’ll take a

look at it.

***

(T. at 194-196).

{¶36} Upon review of the trial transcript, we find the sentence imposed by the trial

court was supported by the record and was not an abuse of discretion. Delaware County, Case No. 22 CAC 06 0042 10

Conclusion

{¶37} After independently reviewing the record, we agree with 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 Delaware County Municipal Court.

By: Wise, J.

Gwin, P. J., and

King, J., concur.

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