State v. Martin

2023 Ohio 1400

• Court: Ohio Court of Appeals
• Decided: April 28, 2023
• Docket: 29579
• Status: Published

Opinion

[Cite as State v. Martin, 2023-Ohio-1400.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 29579 : v. : Trial Court Case No. 2022 CR 00434 : CARLOS MARTIN : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on April 28, 2023

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

GARY C. SCHAENGOLD, Attorney for Appellant

.............

WELBAUM, P.J.

{¶ 1} Defendant-Appellant, Carlos Martin, appeals from his conviction on one

count of theft from an elderly or disabled person, following a no contest plea. Martin’s

appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of non-frivolous issues -2-

for review. After examining the record, counsel could not find any potential issues and

asked us to independently review the record.

{¶ 2} Martin was notified of the filing of the Anders brief and was given the

opportunity to file a pro se brief by March 6, 2023, to raise issues for our review.

However, Martin failed to file a brief. The State has responded to the Anders brief by

asking for permission to respond if our review discloses non-frivolous issues and new

counsel is appointed for Martin. As a result, this matter is ready to be resolved.

{¶ 3} As required by Anders, we have independently reviewed the record and

found no issues with arguable merit for appeal. Therefore, counsel's Anders brief will be

accepted, and Martin’s conviction will be affirmed.

I. Background

{¶ 4} On March 14, 2022, an indictment was filed charging Martin with one count

of theft (elderly/disabled person, without consent), in violation of R.C. 2913.02(A)(1).

The amount in question was less than $1,000, and the offense was a fifth-degree felony

pursuant to R.C. 2913.02(B)(3), which elevates the penalty where persons in protected

classes, like the elderly, are victims.

{¶ 5} After being served with the indictment, Martin failed to appear for his

arraignment, and the court issued a capias for his arrest on April 26, 2022. Martin was

then arrested, and counsel was appointed for him on May 3, 2022. The same day, Martin

was released on his conditional own recognizance. After Martin again failed to appear,

the court issued another capias on May 25, 2022, and set bond at $10,000 plus electronic -3-

monitoring. Martin was subsequently arrested on June 8, 2022, and on June 16, 2022,

the court set an August 1, 2022 trial date.

{¶ 6} On July 7, 2022, Martin posted bond, but he once more failed to appear for

court. He was arrested again on July 31, 2022, and the trial was continued to August

15, 2022. Martin then appeared in court on August 10, 2022, and pled no contest to the

charge. At that time, the court ordered a presentence investigation report (“PSI”) and

set sentencing for August 31, 2022. At that hearing, the court sentenced Martin to 12

months in prison, allowed 77 days of jail credit, and ordered Martin to pay $101 in

restitution to the victim. Martin then timely appealed from his conviction.

II. Discussion

{¶ 7} Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we must

independently review the record to decide if the appeal at issue is wholly frivolous. Id.

at 744. “Anders equates a frivolous appeal with one that presents issues lacking in

arguable merit. An issue does not lack arguable merit merely because the prosecution

can be expected to present a strong argument in reply, or because it is uncertain whether

a defendant will ultimately prevail on that issue on appeal.” State v. Marbury, 2d Dist.

Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n issue lacks arguable merit

if, on the facts and law involved, no responsible contention can be made that it offers a

basis for reversal.” State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788,

¶ 4.

{¶ 8} If we decide an appeal is frivolous, we may grant counsel's request to -4-

withdraw and then dismiss the appeal without violating any constitutional requirements,

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,

2d Dist. Champaign No. 2010-CA-13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.

However, if we find that any issues “involve legal points that are arguable on their merits,

and therefore are not wholly frivolous, per Anders we must appoint other counsel to argue

the appeal.” Pullen at ¶ 2.

{¶ 9} As noted, Martin’s appellate counsel found no potential issues. Counsel

reviewed the plea hearing and found the trial court demonstrated “substantial, if not model

compliance” with the requirements of Crim.R. 11. Appellant’s Brief, p. 3. Counsel

further found no indication of ineffective assistance of counsel during the trial court

proceedings and also concluded that the sentence was within the statutory range and not

even arguably an abuse of discretion, given Martin’s extensive criminal history. Id. at p.

3-4. Having independently reviewed the entire record, we agree the appeal is wholly

frivolous.

{¶ 10} According to the PSI, the victim, L.H., was 72 years old on February 22,

2022. That day, L.H. parked her car at St. Mary’s Church on Xenia Avenue. However,

she failed to lock the car and left her purse on the passenger-side floorboard. The purse

contained $101 in cash, a cancelled debit card, and a library card. L.H. went into the

food pantry at the church and obtained a box of food. When she returned to the car, her

purse was gone. PSI, p. 1-2. Before entering the church, L.H. saw a male in the parking

lot, but he was gone when she returned to her car. Id. After the crime was reported,

the police obtained video from the church, and it showed a man walking up to the car, -5-

opening the door, and removing a purse. The police identified Martin as the involved

individual, and he was then indicted for the theft on March 14, 2022. Id. at p. 2.

{¶ 11} The statute involved here is R.C. 2913.02, which states, in pertinent part

that, “(A) No person, with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services in any of the following

ways: (1) Without the consent of the owner or person authorized to give consent * * *.”

The wording of the indictment tracked the statutory language. In situations involving less

than $1,000, the crime is a first-degree misdemeanor, but where the victim is elderly, R.C.

2913.02(B)(3) elevates the crime to a fifth-degree felony. An “elderly person” is defined

as “a person who is sixty-five years of age or older.” R.C. 2913.01(CC).

{¶ 12} Under Crim.R. 11(B)(2), a no contest plea “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 * * *.” Therefore, Martin’s no contest plea admitted the facts as

charged. Moreover, “[w]here a defendant pleads no contest, all errors are waived except

errors in rulings made on pretrial motions.” State v. Reynolds, 2d Dist. Montgomery No.

20973, 2005-Ohio-7070, ¶ 1, citing Crim. R. 12(I). No pretrial rulings were made in this

case, so that is not a potential issue.

{¶ 13} “A criminal defendant's choice to enter a plea of guilty or no contest is a

serious decision.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,

¶ 25. “Because a no-contest or guilty plea involves a waiver of constitutional rights, a

defendant's decision to enter a plea must be knowing, intelligent, and voluntary.” State

v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10, citing Parke v. -6-

Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). (Other citations

omitted.) “If the plea was not made knowingly, intelligently, and voluntarily, enforcement

of that plea is unconstitutional.” Id.

{¶ 14} To ensure compliance, courts must engage defendants in a colloquy before

accepting their pleas. Clark at ¶ 26, citing Crim.R. 11(C). Under Crim.R. 11(C)(2):

[T]he trial judge may not accept a plea of guilty or no contest without

addressing the defendant personally and (1) “[d]etermining that the

defendant is making the plea voluntarily, with 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,” (2) informing the defendant of

the effect of the specific plea and that the court may proceed with judgment

and sentencing after accepting it, and ensuring that the defendant

understands these facts, and (3) informing the defendant that entering a

plea of guilty or no contest waives the constitutional rights to a jury trial, to

confrontation, to compulsory process, and to the requirement of proof of

guilt beyond a reasonable doubt and determining that the defendant

understands that fact.

Clark at ¶ 27, quoting Crim.R. 11(C)(2)(a) and citing Crim.R. 11(C)(2)(b) and (c).

{¶ 15} “Properly understood, the questions to be answered are simply: (1) has the

trial court complied with the relevant provision of the rule? (2) if the court has not complied

fully with the rule, is the purported failure of a type that excuses a defendant from the -7-

burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the

defendant met that burden?” Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d

286, at ¶ 17.

{¶ 16} After reviewing the record of the plea hearing as well as the written waiver

and plea filed in the trial court, we can find no plausible argument about whether the trial

court properly complied with the relevant parts of Crim.R. 11(C). As a result, there is no

need to consider prejudice.

{¶ 17} After obtaining information about Martin’s circumstances and ability to

understand his rights, the court fully explained the matters at issue, including the potential

penalties and the constitutional rights that Martin would be waiving by entering a no

contest plea. Transcript of Proceedings (Plea Hearing, Sentencing Hearing) (“Tr.”), p. 4-

27. Accordingly, challenging the plea on the basis that it was not knowingly, voluntarily,

and intelligently made would be wholly frivolous.

{¶ 18} Arguments about the sentence the trial court imposed are also wholly

frivolous. In reviewing felony sentences, “an appellate court may vacate or modify a

felony sentence on appeal only if it determines by clear and convincing evidence that the

record does not support the trial court's findings under relevant statutes or that the

sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 1, interpreting R.C. 2953.08(G)(2). “Clear and convincing

evidence is that measure or degree of proof which is more than a mere ‘preponderance

of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable

doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief -8-

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Thus, in evaluating

sentences, a reviewing court considers both the findings under statutes enumerated in

R.C. 2953.08(G) and whether a sentence is contrary to law, as that term has been

defined.

1. Findings Under Enumerated Statutes

{¶ 19} Regarding “enumerated” statutes, R.C. 2953.08(G)(2)(a) requires courts to

consider whether the record fails to “support the sentencing court's findings under division

(B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I)

of section 2929.20 of the Revised Code, whichever, if any, is relevant.” The only matter

referenced in R.C. 2953.08(G)(2)(a) that might be even remotely relevant here is R.C.

2929.13(B).

{¶ 20} Where fourth- or fifth-degree felonies do not involve violent offenses or

qualifying assault offenses, R.C. 2929.13(B)(1)(a) requires courts to impose community

control if a defendant meets all the criteria in R.C. 2929.13(B)(1)(a)(i)-(iii). Martin’s

offense was not either violent or a qualifying assault, so it qualified to that extent.

{¶ 21} However, Martin could not quality for required community control sanctions

because he had been previously convicted of a felony offense. See R.C.

2929.13(B)(1)(a)(i). In fact, Martin had quite a few prior felony convictions, as noted in

the PSI. PSI at p. 4-5, 10, and 12. The trial court also remarked during the sentencing

hearing that Martin had “a lengthy juvenile record, but more importantly, a very lengthy -9-

misdemeanor and felony record.” Tr. at p. 31.

{¶ 22} R.C. 2929.13(B)(1)(b) also states that trial courts have discretion to impose

prison terms for fourth- and fifth-degree felonies if any one of several factors applies.

See R.C. 2929.13(B)(1)(b)(i)-(x), which lists various factors. As pertinent here, Martin

violated bond conditions during the case by failing to appear in court as required. See

R.C. 2929.13(B)(1)(b)(iii). Concerning this factor, the trial court specifically stressed

during the sentencing hearing that Martin had been released on electronic monitoring

during the current case but had cut his monitor. Tr. at p. 31. Another statutory factor is

contained in R.C. 2929.13(B)(1)(b)(ix), which involves whether “the offender at the time

of the offense was serving, or the offender previously had served, a prison term.” As

noted, the court mentioned that Martin had previously served prison terms.

{¶ 23} Again, only one factor was needed; here, two applied. Consequently, if

any findings were needed, they were made, and any argument otherwise would be wholly

2. Whether the Sentence Was Contrary to Law

{¶ 24} The other consideration for review is whether the sentence was contrary to

law. See R.C. 2953.08(G)(2)(b). The pertinent “law” is R.C. 2929.13(A), which says

that “unless a specific sanction is required to be imposed or is precluded from being

imposed pursuant to law, a court that imposes a sentence upon an offender for a felony

may impose any sanction or combination of sanctions on the offender that are provided

in sections 2929.14 to 2929.18 of the Revised Code.” -10-

{¶ 25} Under R.C. 2929.14(A)(5), the prison sentence for Martin’s fifth-degree

felony was “a definite term of six, seven, eight, nine, ten, eleven, or twelve months.”

Consistent with this subsection, the trial court imposed the maximum 12-month sentence.

The court did not impose a fine, but did impose minimal restitution of $101, in accordance

with R.C. 2929.18(A)(1).

{¶ 26} Recently, in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169

N.E.3d 649, the Supreme Court of Ohio “clarified an appellate court's review of a felony

sentence under R.C. 2953.08(G)(2).” State v. Litteral, 2d Dist. Clark No. 2021-CA-10,

2022-Ohio-1187, ¶ 21, citing Jones at ¶ 39. “In Jones, the court stressed that ‘[n]othing

in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in

the record and substitute its judgment for that of the trial court concerning the sentence

that best reflects compliance with R.C. 2929.11 and 2929.12.’ ” State v. Burnette, 2d

Dist. Champaign No. 2021-CA-48, 2022-Ohio-3251, ¶ 24, quoting Jones at ¶ 9.

{¶ 27} R.C. 2929.11(A) outlines the “the overriding purposes of felony sentencing,”

which are to “protect the public from future crime by the offender and others, to punish

the offender, and to promote the effective rehabilitation of the offender using the minimum

sanctions that the court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources.” R.C. 2929.12 details

factors relating to the seriousness of an offender’s conduct, the likelihood of recidivism,

service in the Armed Forces, and the purposes and principles of sentencing.

{¶ 28} The court also stressed in Jones that “an appellate court's determination

that the record does not support a sentence does not equate to a determination that the -11-

sentence is ‘otherwise contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).”

Jones at ¶ 32. “A sentence is contrary to law when it does not fall within the statutory

range for the offense or if the trial court fails to consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.

2929.12.” State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.). Accord

State v. Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18.

{¶ 29} Finally, as we have said many times, “[t]he trial court has full discretion to

impose any sentence within the authorized statutory range, and the court is not required

to make any findings or give its reasons for imposing maximum or more than minimum

sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). Accord

State v. Hisel, 2d Dist. Montgomery No. 29322, 2023-Ohio-859, ¶ 31.

{¶ 30} In the case before us, the trial court did not have to provide reasons for

imposing the maximum sentence, but it did so. In addition to noting Martin’s extensive

criminal history, the court emphasized that every time Martin had been given an

opportunity, he had “repeatedly absconded, [had] repeatedly been revoked, or had been

subject to revocation.” Tr. at p. 32. Furthermore, the court specifically noted that it had

considered the purposes and principles of sentencing and the seriousness and recidivism

factors. Id. Accordingly, any argument that the trial court’s sentence was contrary to

law would be wholly frivolous.

{¶ 31} In view of the preceding discussion, “no responsible contention can be

made” that any trial court error in sentencing “offers a basis for reversal.” Pullen, 2d Dist.

Montgomery No. 19232, 2002-Ohio-6788, at ¶ 4. -12-

III. Conclusion

{¶ 32} Because no potentially meritorious appellate issues exist, counsel is

permitted to withdraw as Martin’s attorney. The judgment of the Montgomery County

Common Pleas Court is affirmed.

EPLEY, J. and LEWIS, J., concur.