[Cite as State v. Powell, 2014-Ohio-1653.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2013-0045 TYRONE POWELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2013-0128
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JOHN D. WEAVER Muskingum County Prosecutor 542 S. Drexel Ave. 27 N. Fifth St. Bexley, Ohio 43209 P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2013-0045 2
Hoffman, P.J.
{¶1} Appellant, Tyrone Powell, was charged with one count of Receiving Stolen
Property in violation of R.C. 2913.51(A), a felony of the fourth degree. Appellant
entered a guilty plea to the charge and was sentenced to a prison term of ten months.
{¶2} The charge arose from Appellant being in possession of a stolen vehicle.
{¶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.
{¶4} Counsel for Appellant raises the following potential assignments of error:
I.
{¶5} “DID THE TRIAL COURT COMMIT REVERSIBLE ERROR AT
APPELLANT’S GUILTY PLEA?”
II.
{¶6} “DID THE TRIAL COURT COMMIT REVERSIBLE ERROR AT
APPELLANT’S SENTENCING?”
{¶7} 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 Muskingum County, Case No. CT2013-0045 3
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.
{¶8} In his first assignment of error, Appellant suggests the trial court did not
comply with Crim.R. 11 in accepting Appellant’s plea.
{¶9} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally and to convey certain information to such defendant,
and makes clear that the trial court shall not accept a guilty plea or no contest without
performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶
10. Crim.R. 11(C)(2)(a) states the trial court must determine,
* * * that the defendant is making the plea voluntarily, with the
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.
{¶10} “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). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio– Muskingum County, Case No. CT2013-0045 4
2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio
St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
{¶11} Though failure to adequately inform a defendant of his constitutional rights
would invalidate a guilty plea under a presumption that it was entered involuntarily and
unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. [State v. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant's] plea and determine whether he
subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d
86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 2012-Ohio-4843
appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.
{¶12} A review of the plea hearing reveals the trial court advised Appellant of his
constitutional rights, the potential penalties for the offense, and the possibility of post
release control. Further, the trial court inquired as to the voluntariness of Appellant’s
plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential
assignment of error is found to be without merit.
{¶13} In his second assignment of error, Appellant challenges the sentence
imposed by the trial court. Specifically, Appellant questions whether the trial court erred Muskingum County, Case No. CT2013-0045 5
in refusing to abide by the sentence recommended by the State as part of the plea
agreement.
{¶14} “Trial courts are vested with discretion when implementing plea
agreements. State v. Buchanan, 154 Ohio App.3d 250, 253, 3002-Ohio-4772, citing
Akron v. Ragsdale (1978), 61 Ohio App.2d 107, 399 N.E.2d 119. “A trial court does not
err by imposing a sentence greater than ‘that forming the inducement for the defendant
to plead guilty when the trial court forewarns the defendant of the applicable penalties,
including the possibility of imposing a greater sentence than that recommended by the
prosecutor.” ’ Buchanan, 154 Ohio App.3d at 253, 796 N.E.2d 1003, citing State v.
Darmour (1987), 38 Ohio App.3d 160, 529 N.E.2d 208. See, also, State v. Mayle, 11th
Dist. No.2002-A-0110, 2004-Ohio-2203 (stating courts are not bound to accept the
state's recommended sentence as part of a negotiated plea agreement); State v. Tucci,
7th Dist. No. 01CA234, 2002-Ohio-6903 (stating before the court even sentences the
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[Cite as State v. Powell, 2014-Ohio-1653.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2013-0045 TYRONE POWELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2013-0128
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JOHN D. WEAVER Muskingum County Prosecutor 542 S. Drexel Ave. 27 N. Fifth St. Bexley, Ohio 43209 P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2013-0045 2
Hoffman, P.J.
{¶1} Appellant, Tyrone Powell, was charged with one count of Receiving Stolen
Property in violation of R.C. 2913.51(A), a felony of the fourth degree. Appellant
entered a guilty plea to the charge and was sentenced to a prison term of ten months.
{¶2} The charge arose from Appellant being in possession of a stolen vehicle.
{¶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.
{¶4} Counsel for Appellant raises the following potential assignments of error:
I.
{¶5} “DID THE TRIAL COURT COMMIT REVERSIBLE ERROR AT
APPELLANT’S GUILTY PLEA?”
II.
{¶6} “DID THE TRIAL COURT COMMIT REVERSIBLE ERROR AT
APPELLANT’S SENTENCING?”
{¶7} 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 Muskingum County, Case No. CT2013-0045 3
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.
{¶8} In his first assignment of error, Appellant suggests the trial court did not
comply with Crim.R. 11 in accepting Appellant’s plea.
{¶9} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally and to convey certain information to such defendant,
and makes clear that the trial court shall not accept a guilty plea or no contest without
performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶
10. Crim.R. 11(C)(2)(a) states the trial court must determine,
* * * that the defendant is making the plea voluntarily, with the
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.
{¶10} “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). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio– Muskingum County, Case No. CT2013-0045 4
2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio
St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
{¶11} Though failure to adequately inform a defendant of his constitutional rights
would invalidate a guilty plea under a presumption that it was entered involuntarily and
unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. [State v. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant's] plea and determine whether he
subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d
86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 2012-Ohio-4843
appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.
{¶12} A review of the plea hearing reveals the trial court advised Appellant of his
constitutional rights, the potential penalties for the offense, and the possibility of post
release control. Further, the trial court inquired as to the voluntariness of Appellant’s
plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential
assignment of error is found to be without merit.
{¶13} In his second assignment of error, Appellant challenges the sentence
imposed by the trial court. Specifically, Appellant questions whether the trial court erred Muskingum County, Case No. CT2013-0045 5
in refusing to abide by the sentence recommended by the State as part of the plea
agreement.
{¶14} “Trial courts are vested with discretion when implementing plea
agreements. State v. Buchanan, 154 Ohio App.3d 250, 253, 3002-Ohio-4772, citing
Akron v. Ragsdale (1978), 61 Ohio App.2d 107, 399 N.E.2d 119. “A trial court does not
err by imposing a sentence greater than ‘that forming the inducement for the defendant
to plead guilty when the trial court forewarns the defendant of the applicable penalties,
including the possibility of imposing a greater sentence than that recommended by the
prosecutor.” ’ Buchanan, 154 Ohio App.3d at 253, 796 N.E.2d 1003, citing State v.
Darmour (1987), 38 Ohio App.3d 160, 529 N.E.2d 208. See, also, State v. Mayle, 11th
Dist. No.2002-A-0110, 2004-Ohio-2203 (stating courts are not bound to accept the
state's recommended sentence as part of a negotiated plea agreement); State v. Tucci,
7th Dist. No. 01CA234, 2002-Ohio-6903 (stating before the court even sentences the
defendant, it must ascertain that the defendant understands that it can impose a higher
sentence than that recommended by the prosecution and that no one promised him
anything less than the maximum sentence).” State v. Martinez, 7th Dist. Mahoning No.
03 MA 196, 2004-Ohio-6806.
{¶15} Prior to accepting Appellant’s plea, the trial court in this case clearly
expressed to Appellant the possible sentencing range and further informed Appellant
the trial court was not bound to follow the state’s sentencing recommendation. For this
reason, we find no error in the sentence imposed by the trial court as it was within the
range proscribed by statute, and the Appellant was made aware of the possible
imposition of a sentence different than the recommended sentence. Muskingum County, Case No. CT2013-0045 6
{¶16} For these reasons, the second potential assignment of error is overruled.
{¶17} 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 Muskingum County Court of Common Pleas.
By: Hoffman, P.J.
Gwin, J. and
Baldwin, J. concur