State v. Perez

2025 Ohio 4865

Opinion

[Cite as State v. Perez, 2025-Ohio-4865.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Case No. CT2025-0019

Plaintiff - Appellee Opinion And Judgment Entry

-vs- Appeal from the Court of Common Pleas, Case No. CR2024-0614 JORGE PEREZ Judgment: Affirmed Defendant – Appellant Date of Judgment Entry: October 23, 2025

BEFORE: Andrew J. King; Kevin W. Popham; David M. Gormley, Appellate Judges

APPEARANCES: JOSEPH A. PALMER, for Plaintiff-Appellee; APRIL F. CAMPBELL, for Defendant-Appellant.

King, J.

{¶ 1} Defendant-Appellant, Jorge Perez, appeals his February 5, 2025 conviction

and sentence from the Muskingum County Court of Common Pleas. Plaintiff-Appellee is

the State of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On September 5, 2024, the Muskingum County Grand Jury indicted Perez

on two counts of trafficking in a Fentanyl-related compound in violation of R.C. 2925.03,

two counts of possession of a Fentanyl-related compound in violation of 2925.11, two

counts of aggravated trafficking in drugs (methamphetamine) in violation of R.C. 2925.03,

and one count of obstructing official business in violation of R.C. 2921.31. Except for the last count, each count contained two firearm specifications (one-year and six-year), a

major drug offender specification, and two forfeiture specifications.

{¶ 3} By plea of guilty form filed December 9, 2024, Perez pled guilty to the two

counts of trafficking in a Fentanyl-related compound with some of the specifications

pursuant to a signed plea agreement entered in the record; the state agreed to dismiss

the remaining counts in exchange for the pleas. By entry filed December 11, 2024, the

trial court accepted Perez's pleas, finding they were made knowingly, voluntarily, and

intelligently.

{¶ 4} In a letter to the trial court received on January 27, 2025, Perez made a pro

se request to withdraw his guilty pleas, arguing ineffective assistance of counsel. The

docket indicates the document is "***NOT A FILING***". There is no entry in the record

addressing this request.

{¶ 5} A sentencing hearing was held on February 3, 2025. Prior to sentencing,

the trial court entertained argument on the letter and Perez's request to withdraw his guilty

pleas. Perez argued the prosecutor coerced him to plead guilty because otherwise, his

sentence would be maxed out with some other charges he was facing in the State of

Georgia. When asked by the trial court if he was threatened or coerced to plead guilty at

the plea hearing, Perez acknowledged he was not threatened or coerced; the trial court

denied the request. By entry filed February 5, 2025, the trial court sentenced Perez to a

mandatory minimum of eleven years to an indefinite sixteen and one-half years in prison

on one of the trafficking counts, a mandatory one year on the firearm specification, a

mandatory eight years on the major drug offender specification, and a mandatory five

years on the other trafficking count, all to be served consecutively, for an aggregate minimum mandatory term of twenty-five years to an indefinite thirty and one-half years in

prison.

{¶ 6} Perez filed an appeal and was appointed counsel. Thereafter, Perez's

attorney filed an Anders brief under Anders v. California, 386 U.S. 738 (1967). In Anders,

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

record, the defendant's counsel concludes that the case is wholly frivolous, then counsel

should so advise the court and request permission to withdraw. Id. at 744. Counsel must

accompany the 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 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} On June 5, 2025, Perez's counsel filed a motion to withdraw and indicated

she sent Perez a copy of the Anders brief and the relevant transcripts. By judgment entry

filed June 12, 2025, this court noted counsel had filed an Anders brief and indicated to

the court that she had served Perez with the brief. Accordingly, this court notified Perez

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." Perez did not do so. {¶ 8} The matter is now before this court for consideration of counsel's Anders

brief. Counsel urges this court to review the following:

I

{¶ 9} "THE TRIAL COURT ERRED IN DENYING PEREZ'S MOTION TO

WITHDRAW HIS PLEAS."

II

{¶ 10} "THE TRIAL COURT ERRED IN ACCEPTING PEREZ'S GUILTY PLEAS

UNDER CRIM.R. 11 AND ERRED IN SENTENCING HIM."

{¶ 11} For ease of discussion, we will address the second assignment of error first.

{¶ 12} In the second assignment of error, counsel suggests the trial court erred in

accepting Perez's guilty pleas under Crim.R. 11 and erred in sentencing him. We

disagree.

PLEAS

{¶ 13} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo

standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109 (1990); State v. Groves,

2019-Ohio-5025, ¶ 7 (5th Dist.).

{¶ 14} Crim.R. 11 requires guilty pleas to be made knowingly, intelligently, and

voluntarily. Although literal compliance with Crim.R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C), and strictly comply with the constitutional notifications. State

v. Ballard, 66 Ohio St.2d 473, 475 (1981), citing State v. Stewart, 51 Ohio St.2d 86 (1977);

State v. Veney, 2008-Ohio-5200, ¶ 31. {¶ 15} As to the constitutional notifications, before accepting a plea, a trial court

must inform a defendant that by entering a plea, the defendant waives important

constitutional rights, specifically: (1) the right to a jury trial; (2) the right to confront one's

accusers; (3) the privilege against compulsory self-incrimination; (4) the right to

compulsory process to obtain witnesses; and (5) the right to require the state to prove the

defendant's guilt beyond a reasonable doubt at trial. Veney at ¶ 19. If the trial court fails

to strictly comply with these requirements, then the defendant's plea is invalid. Id. at ¶

31.

{¶ 16} As to the non-constitutional rights, a trial court must notify a defendant of:

(1) the nature of the charges; (2) the maximum penalty involved, which includes, if

applicable, an advisement on post-release control; (3) if applicable, that the defendant is

not eligible for probation or the imposition of community control sanctions; and (4) that

after entering a guilty plea or a no contest plea, the court may proceed directly to judgment

and sentencing. Crim.R. 11(C)(2)(a) and (b); Veney at ¶ 10-13.

{¶ 17} For these non-constitutional rights, the trial court must substantially comply

with the mandates of Crim.R. 11. Nero, 56 Ohio St.3d at 108. "Substantial compliance

means that under the totality of the circumstances the defendant subjectively understands

the implications of his plea and the rights he is waiving." Veney at ¶ 15.

{¶ 18} We have reviewed the transcript of Perez's plea and find it reflects the trial

court's strict compliance with each constitutional notification and its substantial

compliance with each non-constitutional notification. December 6, 2024 T. at 7-17. Perez

indicated he understood the implications of his pleas and the rights he was waiving. Id. at 16-17. He stated he understood the charges he was pleading guilty to with the

attendant specifications and the possible penalties. Id. at 7-16.

{¶ 19} Perez did not ask any questions or express any confusion as to the charges

and the possible sentences. When asked if he had been promised anything else or

threatened in any way in order to enter the pleas of guilty, Perez responded in the

negative. Id. at 16. He agreed he was satisfied with the advice and assistance he

received from his defense counsel. Id. at 14-15. Following the colloquy on giving up his

constitutional rights, Perez pled guilty to the two counts with specifications. Id. at 17-18.

At the start of the plea hearing, defense counsel indicated Perez signed the plea form in

front of him and he believed Perez was "changing his plea knowingly, intelligently, and

voluntarily." Id. at 6. We do not find any evidence to the contrary.

SENTENCES

{¶ 20} As for Perez's sentences, this court reviews felony sentences using the

standard of review set forth in R.C. 2953.08. State v. Marcum, 2016-Ohio-1002, ¶ 22;

State v. Howell, 2015-Ohio-4049, ¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's

standard of review as follows:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

(a) That the record does not 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;

(b) That the sentence is otherwise contrary to law.

{¶ 21} "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 or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶ 22} 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

"concerning the sentence that best reflects compliance with R.C. 2929.11 [purposes and

principles of felony sentencing] and 2929.12 [seriousness and recidivism factors]." State

v. Jones, 2020-Ohio-6729, ¶ 42. The Supreme Court of Ohio clarified that the holding in

Jones should not be "construed as prohibiting appellate review of a sentence when the

claim is that the sentence was imposed based on impermissible considerations—i.e.,

considerations that fall outside those that are contained in R.C. 2929.11 and 2929.12."

State v. Bryant, 2022-Ohio-1878, ¶ 22. "Accordingly, when a trial court imposes a sentence based on factors or considerations that are extraneous to those that are

permitted by R.C. 2929.11 and 2929.12, that sentence is contrary to law." Id.

{¶ 23} "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. Morris, 2021-Ohio-2646, ¶ 90 (5th Dist.),

rev'd on other grounds, State v. Morris, 2022-Ohio-4609, quoting State v. Dinka, 2019-

Ohio-4209, ¶ 36 (12th Dist.). "Under established law, a '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. Sullens, 2022-Ohio-2305, ¶ 15 (5th Dist.), quoting State v. King,

2013-Ohio-2021, ¶ 45 (2d Dist.). "There is no explicit requirement for a trial court to

memorialize the specific factors it considered in its journal entry." State v. Halasz, 2025-

Ohio-3072, ¶ 15 (8th Dist.), citing State v. Hodges, 2013-Ohio-5025, ¶ 13-14 (8th Dist.).

{¶ 24} During the plea colloquy, Perez acknowledged he understood the possible

sentences and the possibility of consecutive service. December 6, 2024 T. at 7-13. After

Perez was properly notified of his Crim.R. 11 rights, he pled guilty to two felonies of the

first degree with attendant specifications. Id. at 17-18. Under R.C. 2929.14(A)(1)(a),

felonies of the first degree committed after March 22, 2019, are punishable by "an

indefinite prison term with a stated minimum term selected by the court of three, four, five,

six, seven, eight, nine, ten, or eleven years and a maximum term that is determined

pursuant to section 2929.144 of the Revised Code . . . ." The trial court sentenced Perez

to a mandatory minimum of eleven years to an indefinite sixteen and one-half years in prison on one of the trafficking counts, a mandatory one year on the firearm specification,

a mandatory eight years on the major drug offender specification, and a mandatory five

years on the other trafficking count, all to be served consecutively, for an aggregate

minimum mandatory term of twenty-five years to an indefinite thirty and one-half years in

prison. February 3, 2025 T. at 17-21. The sentences are within the statutory range for

first-degree felonies and the specifications. See R.C. 2941.141 and 2941.1410(B).

{¶ 25} In the sentencing entry, the trial court noted its consideration of the

principles and purposes of sentencing under R.C. 2929.11 and the balance of

seriousness and recidivism factors under R.C. 2929.12. Entry filed February 5, 2025.

The trial court noted Perez's criminal history with a prior felony conviction and an active

felony warrant, and made the requisite findings for consecutive sentencing under R.C.

2929.14(C)(4)(c), stating, "the imposition of consecutive sentences are necessary to

protect the public from future crime or to punish the Defendant, and that consecutive

sentences are not disproportionate to the seriousness of the Defendant's conduct, and to

the danger the Defendant poses to the public." Id. The trial court noted, Perez's "history

of criminal conduct demonstrates that consecutive sentences are necessary to protect

the public from future crime by the offender." Id; R.C. 2929.14(C)(4)(c); see also February

3, 2025 T. at 21.

{¶ 26} The trial court notified Perez of postrelease control and his right to appeal.

Entry filed February 5, 2025; February 3, 2025 T. at 20-22.

{¶ 27} Upon review of the record, we find the trial court properly informed Perez of

the consequences of his pleas, properly considered the factors set forth in R.C. 2929.11

and R.C. 2929.12, imposed sentences within the permissible statutory range, explained the stated and indefinite sentences, explained the reason for consecutive service, and

properly imposed postrelease control; there is nothing in the record to indicate the trial

court imposed the sentence based on impermissible considerations. Perez's sentence is

therefore not clearly and convincingly contrary to law.

{¶ 28} In the first assignment of error, counsel suggests the trial court erred in

denying Perez's request to withdraw his guilty pleas. We disagree.

{¶ 29} "A motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court, and the good faith, credibility and weight of the movant's

assertions in support of the motion are matters to be resolved by that court." State v.

Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. Our review of a trial

court's decision under Crim.R. 32.1 is limited to a determination of whether the trial court

abused its discretion. State v. Caraballo, 17 Ohio St.3d 66 (1985). "Abuse of discretion"

means an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). Most instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary. AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). An unreasonable decision is one

backed by no sound reasoning process which would support that decision. Id. "It is not

enough that the reviewing court, were it deciding the issue de novo, would not have found

that reasoning process to be persuasive, perhaps in view of countervailing reasoning

processes that would support a contrary result." Id. {¶ 30} Crim.R. 32.1 states: "A motion to withdraw a plea of guilty or no contest may

be made only before sentence is imposed; but to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw

his or her plea." The Supreme Court of Ohio has stated a presentence motion to withdraw

a guilty plea "should be freely and liberally granted." State v. Xie, 62 Ohio St.3d 521, 526

(1992). But "[a] defendant does not have an absolute right to withdraw a guilty plea prior

to sentencing." Id. at paragraph one of the syllabus. A trial court must conduct a hearing

and determine whether there is "a reasonable and legitimate basis for the withdrawal of

the plea." Id. The determination of "a reasonable and legitimate basis" also lies within

the trial court's sound discretion. State v. Rosemark, 116 Ohio App.3d 306, 308 (9th Dist.

1996).

{¶ 31} Factors a trial court may consider when making a decision on a motion to

withdraw a guilty plea include: (1) prejudice to the state; (2) counsel's representation; (3)

adequacy of the Crim.R. 11 plea hearing; (4) extent of the plea withdrawal hearing; (5)

whether the trial court gave full and fair consideration to the motion; (6) timing; (7) the

reasons for the motion; (8) the defendant's understanding of the nature of the charges

and the potential sentences; and (9) whether the defendant was perhaps not guilty or has

a complete defense to the charge. State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.

1995). No one Fish factor is conclusive. State v. Cuthbertson, 139 Ohio App.3d 895,

899 (7th Dist. 2000). "It is well-established that a mere change of heart is an insufficient

basis for withdrawing a guilty plea." State v. Parker, 2025-Ohio-45, ¶ 15 (8th Dist.).

{¶ 32} Prior to sentencing, the trial court entertained argument on Perez's request

to withdraw his guilty pleas. Perez argued the prosecutor coerced him to plead guilty because otherwise, he was told his sentence would be maxed out with some other

charges he was facing in the State of Georgia. February 3, 2025 T. at 10-11. When

questioned by the trial court, Perez admitted he agreed during the plea colloquy that he

was not coerced nor threatened to enter his guilty pleas, but he "was scared." Id. at 11-

12. As reviewed above, during the plea hearing, the trial court clearly explained the

charges Perez was pleading guilty to and the possible sentences; Perez stated he

understood all of it. December 6, 2024 T. at 7-17. We found no deficiencies with the plea

hearing.

{¶ 33} Perez had adequate representation as he was offered a plea deal to two

counts from a total of seven. The trial court conducted a hearing on the request to

withdraw the pleas and asked questions to clarify Perez's grounds for the request. The

trial court heard Perez's initial claims of coercion followed by his acknowledgment that he

was not coerced nor threatened, just scared.

{¶ 34} Because Perez did not provide the trial court with a reasonable and

legitimate basis for his motion to withdraw his guilty pleas, the trial court did not abuse its

discretion in denying his request.

{¶ 35} "Anders equated a frivolous appeal with one that presents issues lacking in

arguable merit. . . . 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,

2002-Ohio-6788, ¶ 4 (2d Dist.).

{¶ 36} 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 find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw,

and affirm the judgment of the trial court.

{¶ 37} For the reasons stated in our accompanying Opinion, the judgment of the

Muskingum County Court of Common Pleas is AFFIRMED.

{¶ 38} Costs to Appellant.

By: King, P.J.

Popham, J. and

Gormley, J. concur.