State v. Norman

2023 Ohio 4613

• Court: Ohio Court of Appeals
• Decided: December 14, 2023
• Docket: CT2023-0032
• Status: Published

Opinion

[Cite as State v. Norman, 2023-Ohio-4613.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2023-0032 RYAN NORMAN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022- 00371

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 14, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH, ESQ. CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road Muskingum County, Ohio Thornville, Ohio 43076 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2023-0032 2

Hoffman, P.J. {¶1} This matter comes before the Court on the Anders brief filed by counsel for

defendant-appellant Ryan Norman, after the trial court found him guilty of three counts of

endangering children, following his guilty plea to the same.

STATEMENT OF THE CASE

{¶2} On August 11, 2022, the Muskingum County Grand Jury indicted Appellant

on three (3) counts of endangering children (prior offense), in violation of R.C.

2919.22(B)(2), felonies of the second degree; three (3) counts of endangering children,

in violation of R.C. 2919.22(A), felonies of the third degree; three (3) counts of abduction,

in violation of R.C. 2905.02(A)(2), felonies of the third degree; three (3) counts of domestic

violence (prior offense), in violation of R.C. 2919.25(A), felonies of the fourth degree; one

(1) count of corrupting another with drugs (marijuana), in violation of R.C.

2925.02(A)(4)(b), a felony of the fourth degree; one (1) count of felonious assault, in

violation of R.C. 2903.11(A)(2), a felony of the second degree; six (6) counts of

kidnapping, in violation of R.C. 2905.01(A)(3), felonies of the first degree; and one (1)

count of possession of drug paraphernalia, in violation of R.C. 2925.14(C)(1), a

misdemeanor of the fourth degree. At his arraignment on December 28, 2022, Appellant

entered a plea of not guilty to the Indictment.

{¶3} Appellant appeared before the trial court on February 22, 2023, withdrew

his former plea of not guilty, and entered a plea of guilty to three (3) counts of endangering

children (prior offense), in violation of R.C. 2919.22(B)(2), felonies of the second degree,

as set forth in Counts One through Three of the Indictment. Pursuant to plea negotiations,

the state agreed to dismiss the remaining counts against Appellant. Following a Crim. R.

11 colloquy, the trial court found Appellant understood the nature of the charges against Muskingum County, Case No. CT2023-0032 3

him, the effect of a guilty plea, and the maximum penalty which could be imposed for

each of the offenses to which he pled guilty. The trial court further found Appellant

voluntarily entered the plea. The trial court accepted the plea and found Appellant guilty.

{¶4} At the sentencing hearing on April 12, 2023, the trial court imposed a

minimum prison term of four (4) years to an indefinite term of six (6) years on Count One,

a stated prison term of four (4) years on Count Two, and a stated prison term of four (4)

years on Count Three. The trial court ordered the sentences to be served consecutively

to one another for an aggregate minimum prison term of twelve (12) years to an indefinite

prison term of fourteen (14) years. The trial court memorialized Appellant’s sentence via

Entry filed April 13, 2023. After this Court granted his motion to file appeal out of rule,

Appellant filed his Notice of Appeal on May 22, 2023.

{¶5} On August 22, 2023, counsel for Appellant filed a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating there are no

meritorious issues for appeal and thus, these matters are wholly frivolous. Counsel did

not set forth any potential assignments of error, but included two subsections which we

shall consider as potential assignments of error:

CHANGE OF PLEA HEARING

SENTENCING HEARING

Anders v. California

{¶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 Muskingum County, Case No. CT2023-0032 4

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} “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 prevail on the issue on appeal. “An 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, 2nd Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4; State

v. Marbury, 2nd Dist. Montgomery App. No. 19226, 2003-Ohio-3242, ¶ 7-8; State v.

Chessman, 161 Ohio App.3d 140, 829 N.E.2d 748, 2005-Ohio-2511 (2nd Dist.), ¶ 16-17

(quoting the same).” State v. Moore, 2nd Dist. Greene App. No. 07-CA-97, 2009-Ohio-

1416, ¶4.

{¶8} Counsel for Appellant included a Certificate of Service, verifying he served

Appellant with a copy of the brief. This Court issued a judgment entry notifying Appellant

his counsel filed an Anders brief, and informing Appellant he could file a pro se brief within

sixty days of the entry. Appellant has not filed a pro se brief and this Court has not

received a responsive brief from the state. Muskingum County, Case No. CT2023-0032 5

{¶9} We now turn to the potential assignments of error.

I

{¶10} In the subsection captioned “Change of Plea Hearing,” counsel for Appellant

reviews a potential argument Appellant’s guilty plea was not knowingly, intelligently, and

voluntarily entered.

{¶11} In deciding whether to accept a plea, a court must determine whether a

defendant is making the plea knowingly, intelligently, and voluntarily. State v. McDaniel,

4th Dist. Vinton No. 09CA677, 2010-Ohio-5215, 2010 WL 4258622, ¶ 8. “In considering

whether a guilty plea was entered knowingly, intelligently and voluntarily, an appellate

court examines the totality of the circumstances through a de novo review of the record

to ensure that the trial court complied with constitutional and procedural safeguards.” Id.

(Internal quotations and citations omitted).

{¶12} “Before accepting a guilty plea, the trial court should engage in a dialogue

with the defendant as described in Crim.R. 11(C).” McDaniel, supra at ¶ 8, citing State v.

Morrison, 4th Dist. Adams No. 07CA854, 2008-Ohio-4913, 2008 WL 4368206, ¶ 9.

{¶13} Crim. R. 11(C)(2) provides:

(2) In felony cases the court may refuse to accept a plea of guilty or

a plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally and doing all of the

following:

Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty Muskingum County, Case No. CT2023-0032 6

involved, and if applicable, that the defendant is not eligible for probation or

for the imposition of community control sanctions at the sentencing hearing.

Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state to

prove the defendant's guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

{¶14} We have reviewed the transcript of the Crim. R. 11 plea colloquy and find

the trial court advised Appellant of the nature of the charges, the minimum and maximum

penalties involved, the mandatory nature of the sentence, and the post-release control

requirements. The trial court also informed Appellant of the effects of a guilty plea and the

rights he would be waiving as a result of his plea. Appellant confirmed his understanding

of the trial court's advisements.

{¶15} We agree with appellate counsel there is no merit to an argument

Appellant’s plea was not knowingly, intelligently, and voluntarily entered.

II

{¶16} In the subsection “Sentencing Hearing,” counsel reviews a potential

challenge to Appellant’s sentence. Muskingum County, Case No. CT2023-0032 7

{¶17} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,

citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for sentencing where we clearly and convincingly find either the record does

not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law. Id.,

citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

{¶18} When sentencing a defendant, the trial court must consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-

Ohio-5025, ¶ 7.

{¶19} “The overriding purposes of felony sentencing 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. 2929.11(A). To achieve these purposes, the

sentencing court shall consider the need for incapacitating the offender, deterring the

offender and others from future crime, rehabilitating the offender, and making restitution

to the victim of the offense, the public, or both. Id. Further, the sentence imposed shall be

“commensurate with and not demeaning to the seriousness of the offender's conduct and

its impact on the victim, and consistent with sentences imposed for similar crimes by

similar offenders.” R.C. 2929.11(B). Muskingum County, Case No. CT2023-0032 8

{¶20} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion, but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

{¶21} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh

the evidence in the record and substitute our own judgment for that of the trial court to

determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.

2929.12. State v. Jones, 1163 Ohio St.3d 242, 69 N.E.3d 649, 2020-Ohio-6729, ¶ 42.

Instead, we may only determine if the sentence is contrary to law.

{¶22} A sentence is not clearly and convincingly contrary to law where the trial

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes post release control, and sentences the defendant

within the permissible statutory range.” State v. Pettorini, 5th Dist. Licking No. 2020 CA

00057, 2021-Ohio-1512, 2021 WL 1714216, ¶¶ 14-16 quoting State v. Dinka, 12th Dist.

Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.

{¶23} Upon our review of the record, we find Appellant's sentence is not clearly

and convincingly contrary to law. The trial court considered the principles and purposes

of R.C. 2929.11, and the factors set forth in R.C. 2929.12. The sentences were within

the permissible statutory ranges. We agree with appellate counsel there is no merit to a

potential challenge to Appellant’s sentence. Muskingum County, Case No. CT2023-0032 9

{¶24} For these reasons, after independently reviewing the record, we agree with

counsel’s conclusion 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 trial court.

{¶25} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Hoffman, P.J. Wise, J. and Baldwin, J. concur