[Cite as State v. Motter, 2011-Ohio-4965.]
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. 11 COA 3 SCOTT D. MOTTER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CRI 110
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 28, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS JOANNA M. ORTH PROSECUTING ATTORNEY SPORE & ASSOCIATES, LLC PAUL T. LANGE Post Office Box 906 ASSISTANT PROSECUTOR Perrysburg, Ohio 43552 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 11 COA 3 2
Wise, J.
{¶1} Appellant, Scott D. Motter, plead guilty to a bill of information containing
four counts: one count of gross sexual imposition, a felony of the third degree, in
violation of R.C. 2907.05(A)(4) and three counts attempted child endangering, felonies
of the fourth degree, in violation of R.C. 2923.02(A) and R.C. 2919.22(B)(4)
{¶2} Appellant was sentenced to a term of five years on the charge of gross
sexual imposition and a term of eighteen months on each of the attempted child
endangerment counts. All four of these sentences were ordered served consecutive to
one another, however, for a total term of incarceration of nine and one half years.
{¶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. Counsel for Appellant has raised two potential assignments of
error asking this Court to determine whether Appellant’s plea was entered knowingly,
intelligently, and voluntarily and whether Appellant’s sentence was contrary to law.
I.
{¶4} “DEFENDANT/APPELLANT’S PLEA SHOULD BE SET ASIDE INSOFAR
AS IT WAS NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY.
II.
{¶5} “DEFENDANT/APPELLANT’S SENTENCE SHOULD BE VACATED AS IT
IS EXCESSIVE, UNREASONABLE AND CONTRARY TO LAW.” Ashland County, Case No. 11 COA 3 3
{¶6} 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.
{¶7} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738. We now will address the merits of Appellant’s potential
assignments of error.
{¶8} In his potential assignment of error, Appellant suggests his plea was not
entered knowingly, intelligently, and voluntarily. A review of the plea hearing
demonstrates the trial court complied with the mandate of Crim.R. 11 in accepting
Appellant’s guilty pleas. The trial court explained to Appellant all of his rights, the
potential penalties and the effect of entering the guilty pleas.
{¶9} As we outlined in State v. Sullivan, 2007 WL 2410108, 2-3 (Ohio App. 5
Dist., 2007), a determination of whether a plea is knowing, intelligent, and voluntary is Ashland County, Case No. 11 COA 3 4
based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272. If a
criminal defendant claims that his plea was not knowingly, voluntarily, and intelligently
made, the reviewing court must review the totality of the circumstances in order to
determine whether or not the defendant's claim has merit. State v. Nero (1990), 56 Ohio
St.3d 106, 108.
{¶10} To ensure that a plea is made knowingly and intelligently, a trial court
must engage in oral dialogue with the defendant in accordance with Crim.R. 11(C)(2).
State v. Engle (1996), 74 Ohio St.3d 525, 527.
{¶11} A review of the record reveals that during the plea hearing, Appellant
indicated he had read the bill of information, read the plea of guilty form, which
contained an explanation of Appellant’s constitutional rights, and discussed these items
with his attorney. The trial court orally went over all of the required information to
comply with Crim.R. 11. There is absolutely no evidence Appellant’s plea was not
entered knowingly, intelligently, and voluntarily.
{¶12} Appellant’s first Assignment of Error is overruled.
{¶13} In his second potential assignment of error, Appellant argues the trial court
abused its discretion in imposing maximum, consecutive sentences and further argues
his sentence is contrary to law.
{¶14} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,
the Supreme Court of Ohio set forth the following two-step approach in reviewing a
sentence: Ashland County, Case No. 11 COA 3 5
{¶15} “In applying Foster to the existing statutes, appellate courts must apply a
two-step approach. First, they must 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. If this first prong is satisfied, the
trial court's decision shall be reviewed under an abuse-of-discretion standard.”
{¶16} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶17} The sentences imposed in this case were within the sentencing range
provided by statute, therefore, the first prong is satisfied.
{¶18} This case involved two child victims ages five and six. One of the victims
is physically and mentally handicapped. Appellant used his position as a parent to
commit the offenses. Appellant’s conduct was not a single incident but ongoing. We
cannot say under the circumstances of this case that the trial court abused its discretion
in imposing maximum, consecutive sentences.
{¶19} Appellant’s second proposed assignment of error is overruled. Ashland County, Case No. 11 COA 3 6
{¶20} For these reasons, after independently reviewing the record, we agree
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[Cite as State v. Motter, 2011-Ohio-4965.]
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. 11 COA 3 SCOTT D. MOTTER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CRI 110
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 28, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS JOANNA M. ORTH PROSECUTING ATTORNEY SPORE & ASSOCIATES, LLC PAUL T. LANGE Post Office Box 906 ASSISTANT PROSECUTOR Perrysburg, Ohio 43552 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 11 COA 3 2
Wise, J.
{¶1} Appellant, Scott D. Motter, plead guilty to a bill of information containing
four counts: one count of gross sexual imposition, a felony of the third degree, in
violation of R.C. 2907.05(A)(4) and three counts attempted child endangering, felonies
of the fourth degree, in violation of R.C. 2923.02(A) and R.C. 2919.22(B)(4)
{¶2} Appellant was sentenced to a term of five years on the charge of gross
sexual imposition and a term of eighteen months on each of the attempted child
endangerment counts. All four of these sentences were ordered served consecutive to
one another, however, for a total term of incarceration of nine and one half years.
{¶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. Counsel for Appellant has raised two potential assignments of
error asking this Court to determine whether Appellant’s plea was entered knowingly,
intelligently, and voluntarily and whether Appellant’s sentence was contrary to law.
I.
{¶4} “DEFENDANT/APPELLANT’S PLEA SHOULD BE SET ASIDE INSOFAR
AS IT WAS NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY.
II.
{¶5} “DEFENDANT/APPELLANT’S SENTENCE SHOULD BE VACATED AS IT
IS EXCESSIVE, UNREASONABLE AND CONTRARY TO LAW.” Ashland County, Case No. 11 COA 3 3
{¶6} 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.
{¶7} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738. We now will address the merits of Appellant’s potential
assignments of error.
{¶8} In his potential assignment of error, Appellant suggests his plea was not
entered knowingly, intelligently, and voluntarily. A review of the plea hearing
demonstrates the trial court complied with the mandate of Crim.R. 11 in accepting
Appellant’s guilty pleas. The trial court explained to Appellant all of his rights, the
potential penalties and the effect of entering the guilty pleas.
{¶9} As we outlined in State v. Sullivan, 2007 WL 2410108, 2-3 (Ohio App. 5
Dist., 2007), a determination of whether a plea is knowing, intelligent, and voluntary is Ashland County, Case No. 11 COA 3 4
based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272. If a
criminal defendant claims that his plea was not knowingly, voluntarily, and intelligently
made, the reviewing court must review the totality of the circumstances in order to
determine whether or not the defendant's claim has merit. State v. Nero (1990), 56 Ohio
St.3d 106, 108.
{¶10} To ensure that a plea is made knowingly and intelligently, a trial court
must engage in oral dialogue with the defendant in accordance with Crim.R. 11(C)(2).
State v. Engle (1996), 74 Ohio St.3d 525, 527.
{¶11} A review of the record reveals that during the plea hearing, Appellant
indicated he had read the bill of information, read the plea of guilty form, which
contained an explanation of Appellant’s constitutional rights, and discussed these items
with his attorney. The trial court orally went over all of the required information to
comply with Crim.R. 11. There is absolutely no evidence Appellant’s plea was not
entered knowingly, intelligently, and voluntarily.
{¶12} Appellant’s first Assignment of Error is overruled.
{¶13} In his second potential assignment of error, Appellant argues the trial court
abused its discretion in imposing maximum, consecutive sentences and further argues
his sentence is contrary to law.
{¶14} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,
the Supreme Court of Ohio set forth the following two-step approach in reviewing a
sentence: Ashland County, Case No. 11 COA 3 5
{¶15} “In applying Foster to the existing statutes, appellate courts must apply a
two-step approach. First, they must 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. If this first prong is satisfied, the
trial court's decision shall be reviewed under an abuse-of-discretion standard.”
{¶16} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶17} The sentences imposed in this case were within the sentencing range
provided by statute, therefore, the first prong is satisfied.
{¶18} This case involved two child victims ages five and six. One of the victims
is physically and mentally handicapped. Appellant used his position as a parent to
commit the offenses. Appellant’s conduct was not a single incident but ongoing. We
cannot say under the circumstances of this case that the trial court abused its discretion
in imposing maximum, consecutive sentences.
{¶19} Appellant’s second proposed assignment of error is overruled. Ashland County, Case No. 11 COA 3 6
{¶20} For these reasons, 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.
___________________________________
JUDGES
JWW/d 0907 Ashland County, Case No. 11 COA 3 7
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : SCOTT D. MOTTER : : Defendant-Appellant : Case No. 11 COA 3
For the reasons stated in our accompanying Memorandum-Opinion, counsel for
Appellant is granted leave to withdraw and the judgment of the Court of Common Pleas
of Ashland County, Ohio, is affirmed.
Costs assessed to appellant.