[Cite as State v. Plozay, 2023-Ohio-4128.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112599 v. :
ANTHONY PLOZAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED AND REMANDED RELEASED AND JOURNALIZED: November 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-670917-A
Appearances:
Edward F. Borkowski, Jr., for appellant.
ANITA LASTER MAYS, A.J.:
I. Introduction
On February 1, 2023, defendant-appellant Anthony Plozay (“Plozay”)
entered a plea of guilty to failure to comply with order, signal of a police officer
(“failure to comply”), R.C. 2921.331(B), a third-degree felony, as charged in Count 1
of the indictment, and attempted obstructing official business, R.C. 2923.02 and 2921.31(A), a first-degree misdemeanor, as amended in Count 2 of the indictment.
On March 8, 2023, after receipt of the presentence-investigation report, Plozay was
sentenced on Count 1 failure to comply to a 36-month prison term, a Class One
lifetime driver’s license suspension, and a $10,000 fine. On Count 2, attempted
obstructing official business, Plozay was sentenced to time served. He was also
ordered to pay costs. Plozay received jail-time credit for 84 days.
Counsel appointed to represent Plozay in the instant appeal has filed
a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), and requested leave to withdraw as counsel. Anders held that where, after a
conscientious examination of the case, appellate counsel is unable to find any
meritorious issues for review, counsel may inform the court and request permission
to withdraw from the case. Id. at 744. In addition, the request must be
accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal.
Id. If this court determines that one or more legal points have merit, the defendant
will be afforded counsel to argue the appeal. Id.
II. Discussion of Potential Assignments of Error
Counsel identifies four potential assignments of error but explains
that the errors are not prejudicial and meritorious of review. After a thorough independent review of the record, we grant counsel’s motion to withdraw and
dismiss this appeal.
The four potential errors are:
Potential Issue 1: Whether the trial court complied with Crim.R. 11.
Potential Issue 2: Whether the sentence imposed is contrary to law.
Potential Issue 3: Whether the trial court erred by imposing a lifetime license suspension.
Potential Issue 4: Whether the trial court erred by imposing a maximum fine.
A. Crim.R. 11 compliance
A defendant’s decision to enter a plea must be knowing, intelligent,
and voluntary because a no-contest or guilty plea involves a waiver of constitutional
rights. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10,
citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); State
v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; see State v.
Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Enforcement of the plea is
unconstitutional where the plea was not made knowingly, intelligently, and
voluntarily. Id., citing id.
Crim.R. 11
“outlines the procedures that trial courts are to follow when accepting pleas” and “‘ensures an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandingly and voluntarily made.’” [Dangler] at ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975).
State v. Stewart, 8th Dist. Cuyahoga No. 112017, 2023-Ohio-1673, ¶ 11. In Dangler, the court determined that the former strict or substantial
compliance standard for a Crim.R. 11(C) analysis “unduly complicated what should
be a fairly straightforward inquiry.” Id. at ¶ 17. “[T]he 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 burden of demonstrating prejudice? and (3) if a
showing of prejudice is required, has the defendant met that burden?” Id.
At the plea hearing, counsel for the parties confirmed that Plozay’s
plea was knowingly, intelligently, and voluntarily made. The record reflects the trial
court failed to advise Plozay that he was also waiving his right to a bench trial. “The
right to trial by jury is guaranteed by the Sixth Amendment to the Constitution of
the United States, and it is one of the five constitutional trial rights a criminal
defendant must be advised of.” State v. Lewis, 8th Dist. Cuyahoga No. 107552,
2019-Ohio-1994, ¶ 12, citing State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d
115 (1981). However, “[a] defendant’s option to be tried without a jury, although
provided in R.C. 2945.05, is not a constitutional right, neither is it mentioned
anywhere in Crim.R. 11(C).” Id. “Crim.R. 11 does not require [the advisement] for
the plea to be knowing, intelligent and voluntary.” Id. at ¶ 14.
A failure to comply with Crim.R. 11 has not been demonstrated. The
first potential assignment of error lacks merit. B. Sentence contrary to law
The trial court sentenced Plozay to a 36-month term of incarceration
on Count 1 and time served on Count 2. A sentence is contrary to law if the sentence
falls outside of the statutory range for the particular degree of offense or the trial
court failed to consider the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist.
Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist.
Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
Failure to comply under R.C. 2921.331(B) is a third-degree felony
subject to a prison term of 9 to 36 months pursuant to R.C. 2929.14(A)(3)(b). Plozay
was sentenced to 36 months which is within the statutory range.
A trial court must consider the purposes and principles of sentencing
under R.C. 2929.11 and the sentencing factors under R.C. 2929.12 when imposing a
felony sentence. State v. Wagner, 2023-Ohio-1215, 212 N.E.3d 1119, ¶ 28 (8th
Dist.), citing State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68,
¶ 20. A trial court is not required under those statutes to make any specific factual
findings on the record. Id., citing id., citing State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215,
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[Cite as State v. Plozay, 2023-Ohio-4128.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112599 v. :
ANTHONY PLOZAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED AND REMANDED RELEASED AND JOURNALIZED: November 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-670917-A
Appearances:
Edward F. Borkowski, Jr., for appellant.
ANITA LASTER MAYS, A.J.:
I. Introduction
On February 1, 2023, defendant-appellant Anthony Plozay (“Plozay”)
entered a plea of guilty to failure to comply with order, signal of a police officer
(“failure to comply”), R.C. 2921.331(B), a third-degree felony, as charged in Count 1
of the indictment, and attempted obstructing official business, R.C. 2923.02 and 2921.31(A), a first-degree misdemeanor, as amended in Count 2 of the indictment.
On March 8, 2023, after receipt of the presentence-investigation report, Plozay was
sentenced on Count 1 failure to comply to a 36-month prison term, a Class One
lifetime driver’s license suspension, and a $10,000 fine. On Count 2, attempted
obstructing official business, Plozay was sentenced to time served. He was also
ordered to pay costs. Plozay received jail-time credit for 84 days.
Counsel appointed to represent Plozay in the instant appeal has filed
a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), and requested leave to withdraw as counsel. Anders held that where, after a
conscientious examination of the case, appellate counsel is unable to find any
meritorious issues for review, counsel may inform the court and request permission
to withdraw from the case. Id. at 744. In addition, the request must be
accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal.
Id. If this court determines that one or more legal points have merit, the defendant
will be afforded counsel to argue the appeal. Id.
II. Discussion of Potential Assignments of Error
Counsel identifies four potential assignments of error but explains
that the errors are not prejudicial and meritorious of review. After a thorough independent review of the record, we grant counsel’s motion to withdraw and
dismiss this appeal.
The four potential errors are:
Potential Issue 1: Whether the trial court complied with Crim.R. 11.
Potential Issue 2: Whether the sentence imposed is contrary to law.
Potential Issue 3: Whether the trial court erred by imposing a lifetime license suspension.
Potential Issue 4: Whether the trial court erred by imposing a maximum fine.
A. Crim.R. 11 compliance
A defendant’s decision to enter a plea must be knowing, intelligent,
and voluntary because a no-contest or guilty plea involves a waiver of constitutional
rights. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10,
citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); State
v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; see State v.
Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Enforcement of the plea is
unconstitutional where the plea was not made knowingly, intelligently, and
voluntarily. Id., citing id.
Crim.R. 11
“outlines the procedures that trial courts are to follow when accepting pleas” and “‘ensures an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandingly and voluntarily made.’” [Dangler] at ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975).
State v. Stewart, 8th Dist. Cuyahoga No. 112017, 2023-Ohio-1673, ¶ 11. In Dangler, the court determined that the former strict or substantial
compliance standard for a Crim.R. 11(C) analysis “unduly complicated what should
be a fairly straightforward inquiry.” Id. at ¶ 17. “[T]he 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 burden of demonstrating prejudice? and (3) if a
showing of prejudice is required, has the defendant met that burden?” Id.
At the plea hearing, counsel for the parties confirmed that Plozay’s
plea was knowingly, intelligently, and voluntarily made. The record reflects the trial
court failed to advise Plozay that he was also waiving his right to a bench trial. “The
right to trial by jury is guaranteed by the Sixth Amendment to the Constitution of
the United States, and it is one of the five constitutional trial rights a criminal
defendant must be advised of.” State v. Lewis, 8th Dist. Cuyahoga No. 107552,
2019-Ohio-1994, ¶ 12, citing State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d
115 (1981). However, “[a] defendant’s option to be tried without a jury, although
provided in R.C. 2945.05, is not a constitutional right, neither is it mentioned
anywhere in Crim.R. 11(C).” Id. “Crim.R. 11 does not require [the advisement] for
the plea to be knowing, intelligent and voluntary.” Id. at ¶ 14.
A failure to comply with Crim.R. 11 has not been demonstrated. The
first potential assignment of error lacks merit. B. Sentence contrary to law
The trial court sentenced Plozay to a 36-month term of incarceration
on Count 1 and time served on Count 2. A sentence is contrary to law if the sentence
falls outside of the statutory range for the particular degree of offense or the trial
court failed to consider the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist.
Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist.
Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
Failure to comply under R.C. 2921.331(B) is a third-degree felony
subject to a prison term of 9 to 36 months pursuant to R.C. 2929.14(A)(3)(b). Plozay
was sentenced to 36 months which is within the statutory range.
A trial court must consider the purposes and principles of sentencing
under R.C. 2929.11 and the sentencing factors under R.C. 2929.12 when imposing a
felony sentence. State v. Wagner, 2023-Ohio-1215, 212 N.E.3d 1119, ¶ 28 (8th
Dist.), citing State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68,
¶ 20. A trial court is not required under those statutes to make any specific factual
findings on the record. Id., citing id., citing State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215,
724 N.E.2d 793 (2000). Both R.C. 2929.11 and 2929.12 call on the sentencing court
to consider what sentence is necessary to protect the public from future crime by the
defendant, with R.C. 2929.12(E)(3) focusing specifically on whether the offender had led a law-abiding life for a significant number of years prior to the offense at
issue.
The trial court recounted Plozay’s involvement in “at least six very
dangerous” activities related to vehicular incidents over the past few years and other
concerns supporting that Plozay had not been living a law-abiding life. Thus, the
record supports that the trial court considered the factors under R.C. 2929.11 and
2929.12 when sentencing Plozay. “While trial courts must carefully consider the
statutes that apply to every felony case, it is not necessary for the trial court to
articulate its consideration of each individual factor as long as it is evident from the
record that the principles of sentencing were considered.” State v. Roberts, 8th Dist.
Cuyahoga No. 89236, 2008-Ohio-1942, ¶ 10. We add that the trial court stated in
its journal entry that it considered all required factors of law, and that prison was
consistent with the purposes of R.C. 2929.11. Therefore, we find that the trial court
fulfilled its statutory requirements. State v. Clayton, 8th Dist. Cuyahoga No. 99700,
2014-Ohio-112, ¶ 9.
The second potential assignment of error lacks merit.
C. Lifetime license suspension
Plozay received a lifetime driver’s license conviction for failure to
comply under R.C. 2921.331(B). This was Plozay’s second failure to comply
conviction. R.C. 2921.331(E) and 4510.02(A)(1) provide that a Class One lifetime
driver’s license suspension is mandatory where the second failure to comply is a
felony. The third potential assignment of error lacks merit.
D. Imposition of maximum fine
The trial court imposed a $10,000 maximum fine for the third-
degree failure to comply felony under R.C. 2929.18(A)(3)(c) without considering
Plozay’s ability to pay it. The trial court stated that if Plozay paid off the court costs
“which aren’t going to be all that much * * * by not later than April 1, 2024, I will
[reduce] that fine down to $3,000, okay? But I want [you] to work it off while you’re
in prison.” (Tr. 42.) This statement by the court indicates that the trial court gave
consideration to Plozay’s ability to pay.
The record reflects that Plozay was represented by appointed counsel
who did not object to the fine and appellate counsel was appointed for appeal.
However, as this court has acknowledged, “‘a determination that a criminal
defendant is indigent for the purpose of receiving counsel does not prohibit the trial
court from imposing a fine.’” State v. Franklin, 8th Dist. Cuyahoga No. 99806,
2014-Ohio-1422, ¶ 32, quoting State v. Mock, 187 Ohio App.3d 599, 2010-Ohio-
2747, 933 N.E.2d 270, ¶ 62 (7th Dist.). “Ohio law does not prohibit a court from
imposing a fine on an indigent defendant.” State v. Williams, 8th Dist. Cuyahoga
No. 92419, 2009-Ohio-5964, ¶ 8, citing State v. Ramos, 8th Dist. Cuyahoga
No. 92357, 2009-Ohio-3064; and State v. Roark, 8th Dist. Cuyahoga No. 84992,
2005-Ohio-1980.
The fourth potential assignment of error lacks merit. III. Conclusion
As required by Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493,
this court has conducted a thorough review of the proceedings below and considered
the arguments identified in counsel’s Anders brief. We conclude that there are no
arguable legal points on the merits of this matter. Counsel’s request to withdraw is
granted, and we dismiss this appeal.
We remand the matter to the trial court, however, for two nunc pro
tunc entries. “‘The function of a nunc pro tunc entry is not to change, modify, or
correct erroneous judgments, but merely to have the record speak the truth.’”
State v. Kimmie, 8th Dist. Cuyahoga No. 98979, 2013-Ohio-2906, ¶ 20, quoting
Ruby v. Wolf, 39 Ohio App. 144, 147, 177 N.E. 240 (8th Dist.1931).
Though properly stated on the record, the judgment entries for the
plea and sentencing provide that Plozay pleaded guilty to obstructing official
business instead of attempted obstructing official business under R.C. 2923.02 and
2921.31(A), a first-degree misdemeanor, as amended in Count 2 of the indictment.
The trial court shall enter nunc pro entries for the plea and sentencing to accurately
reflect the offense of attempted obstructing official business under R.C. 2923.02 and
2921.31(A).
Case dismissed and remanded.
It is ordered that appellee recover from appellant costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___ ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
MICHELLE J. SHEEHAN, J., and LISA B. FORBES, J., CONCUR