State v. Sanders

2024 Ohio 2235

Opinion

[Cite as State v. Sanders, 2024-Ohio-2235.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 00083 PETER SANDERS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 23-CR-00287

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 11, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNY WELLS SETH SMITH Prosecuting Attorney 33 W. Main Street, Suite #108 Licking County, Ohio Newark, Ohio 43055

KENNETH W. OSWALT PETER SANDERS Assistant Prosecuting Attorney Inmate #A819379 20 S. Second Street, 4th Floor Mansfield Correctional Institution Newark, Ohio 43055 P.O. Box 788 Mansfield, Ohio 44901 Licking County, Case No. 2023 CA 00083 2

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

defendant-appellant Peter Sanders, after the trial court found him guilty of one count of

aggravated burglary, one count of strangulation, and an attendant firearm specification,

following his guilty plea to the same.

STATEMENT OF THE CASE

{¶2} On May 4, 2023, the Licking County Grand Jury indicted Appellant on one

count of aggravated burglary, in violation of R.C §2911.11(A)(2), a felony of the first

degree; one count of strangulation, in violation of §2903.18(B)(2), a felony of the third

degree. Both counts carried attendant one-year firearm forfeiture specifications. Appellant

entered a plea of not guilty to the Indictment at his arraignment on May 9, 2023.

{¶3} The trial court originally scheduled the matter for jury trial on July 11, 2023,

but continued the trial until September 6, 2023, at Appellant’s request. On September 1,

2023, Attorney Kristin Burkett, counsel for Appellant, filed a motion to cancel the jury trial

and set the matter for a change of plea and sentencing hearing. Therein, Attorney Burkett

advised the trial court it was Appellant’s intention to resolve the matter through a plea.

Appellant appeared before the trial court on October 13, 2023, withdrew his former pleas

of not guilty, entered a plea of guilty to Count One, aggravated burglary, and the

specifications, and entered an Alford plea of guilty to Count Two, strangulation. The trial

court conducted a Crim. R. 11 colloquy with Appellant during which he acknowledged he

understood his rights, the charges, the plea agreement, the maximum penalties, and the

specific constitutional rights he was waving with the plea.

{¶4} The state detailed the facts underlying the charges as follows: Licking County, Case No. 2023 CA 00083 3

{¶5} On April 26, 2023, officers with the Heath Police Department were

dispatched to 327 Union Street, Apartment H11, Newark, Licking County, Ohio, on a

report of a disturbance after the caller heard yelling and screaming coming from the

residence. When officers arrived at the scene, they also heard arguing coming from

inside the residence. Officers knocked and made contact with Appellant and Brittany

Stacy. Once separated, Stacy informed officers Appellant was her former boyfriend and

they had been together for approximately four months, but she ended the relationship the

night before. Stacy reported Appellant entered her apartment using a key she had

previously given him, but he had not returned. Appellant pointed a gun at Stacy, put his

hands around her neck, and knocked her to the ground, causing injuries to her face and

mouth. According to Stacy, Appellant was not on the lease for the apartment and his

entrance that evening was uninvited and unannounced. Officers observed redness and

scratches on Stacy’s neck and a lump on her lip.

{¶6} When officers interviewed Appellant, he admitted his arrival at Stacy’s

residence was unannounced. Appellant informed officers he had a firearm and indicated

it was in his jacket in the bedroom. Officers confiscated a Smith & Wesson 9C 9-

millimeter compact firearm. There were six bullets in the magazine and one bullet in the

chamber. The weapon was subsequently tested and determined to be operational.

Appellant explained he and Stacy had separated, but had not had a formal conversation

about breaking up. Appellant added he needed to return Stacy’s house key. Officer

found the house key on Appellant’s key ring and returned it to Stacy.

{¶7} Upon completion of the state’s recitation of the facts, Attorney Burkett stated

Appellant was entering an Alford plea to Count Two as he denied ever putting his hands Licking County, Case No. 2023 CA 00083 4

around Stacy’s neck. Attorney Burkett noted Stacy, in a recorded interview, indicated the

marks on her neck were hickeys from an individual she had been with the previous

evening. Attorney Burkett added, while Appellant admitted he had a gun on his person,

he denied ever removing the firearm from his jacket pocket. In response to the trial court’s

question, “do you agree that the State could present sufficient facts which would go to

each and every element beyond a reasonable doubt for a jury to make that finding?,”

Attorney Burkett responded, “We do, Your Honor.” Transcript of October 13, 2023

Change of Plea and Sentencing Hearing at pp. 12-13. Appellant, likewise, responded,

“Yes, Your Honor.” Tr. at p. 13.

{¶8} The trial court accepted Appellant's plea and found him guilty. The trial court

sentenced Appellant to an indefinite term of incarceration of 3 to 4 ½ years on count one,

a term of incarceration of nine months on count two, and a mandatory one-year period of

incarceration on the firearm specification. The trial court ordered the terms be run

consecutively for an aggregate period of incarceration of 4 to 5 ½ years.

{¶9} On March 5, 2024, appellate 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

were no meritorious issues for appeal and thus, these matters were 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

{¶10} 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 Licking County, Case No. 2023 CA 00083 5

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

60 days of the entry. Appellant filed a pro se brief on April 15, 2024, setting forth the

following “Summary of the Argument:”

Ineffective council [sic], where Defendant entered his guilty plea, he

was in fact not fully informed and misled by his counsel and initial intent to

utilize the Alford plea. The statement of facts was altered by Defendant’s

council [sic], after removing various details that would have been integral

for the Appellant’s defense.

Insufficient weight of evidence, Circumstantial evidence and one

testimony was not enough to qualify the plea bargain process.

Defendant entered the plea under duress, living in an environment

with his parents after Appellant’s parents were coerced and “fear mongered”

by Defendant[‘]s previous council [sic] adversely effected [sic] his

submission to the plea bargain.

Anders v. California

{¶11} 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 Licking County, Case No. 2023 CA 00083 6

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.

{¶12} “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.

I

{¶13} 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.

{¶14} 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 Licking County, Case No. 2023 CA 00083 7

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).

{¶15} “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.

{¶16} 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

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 Licking County, Case No. 2023 CA 00083 8

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.

{¶17} 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.

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

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

II

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

challenge to Appellant's sentence.

{¶20} 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. Licking County, Case No. 2023 CA 00083 9

{¶21} 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.

{¶22} “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).

{¶23} 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.

{¶24} 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 Licking County, Case No. 2023 CA 00083 10

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.

{¶25} 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.

{¶26} 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.

APPELLANT’S PRO SE SUMMARY OF THE ARGUMENT

{¶27} In his first assignment of error, Appellant raises a claim of ineffective

assistance of counsel. Specifically, Appellant contends trial counsel misinformed him on

the intended use of the Alford plea. Appellant further asserts the statement of the facts

upon which he agreed to plea was altered at the hearing.

{¶28} “[D]irect appeals are not the appropriate place to consider allegations of

ineffective assistance of trial counsel that turn on information that is outside the record.”

State v. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, ¶ 35 (Citations Licking County, Case No. 2023 CA 00083 11

omitted). Because we cannot consider information outside the record in a direct appeal,

we conclude Appellant’s claims are speculative. Id. (Citations omitted). Speculation alone

cannot overcome “the ‘strong presumption’ that counsel's performance constituted

reasonable assistance.” Id. (Citations omitted).

{¶29} Because resolution of Appellant’s claims depends upon evidence outside

the record, specifically, on the private conversations between Appellant and trial counsel,

we cannot consider such evidence as a basis for a finding of ineffective assistance on

direct appeal. See, State v. Sanchez, 5th Dist. Stark No. 22CA00071, 2023-Ohio-2042.

{¶30} Accordingly, we find no merit to Appellant’s claim of ineffective assistance

of trial counsel.

{¶31} Appellant’s first assignment of error is overruled.

{¶32} In his second assignment of error, Appellant challenges his convictions as

against the manifest weight and the sufficiency of the evidence.

{¶33} Initially, we note, like in his first assignment of error, Appellant’s second

assignment of error relies upon evidence outside the record. To the extent Appellant relies

upon evidence which was not before the trial court, his argument must fail. State v.

Ishmail, 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500 (1978), paragraph one of the

syllabus (“A reviewing court cannot add matter to the record before it, which was not a

part of the trial court's proceedings, and then decide the appeal on the basis of the new

matter.”) An appellate court is limited to the record of the proceedings at trial. State v.

Henderson, 5th Dist. Stark No. 2019CA00026, 2019-Ohio-4041, ¶12, citing Morgan v.

Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13. Licking County, Case No. 2023 CA 00083 12

{¶34} Further, “[a] guilty plea waives a defendant's right to challenge sufficiency

or manifest weight of the evidence.” State v. Hill, 8th Dist. Cuyahoga No. 90513, 2008-

Ohio-4857, ¶ 6, citing State v. Siders, 78 Ohio App.3d 699, 701, 605 N.E.2d 1283 (11th

Dist.1992). An Alford plea has the same legal effect as a guilty plea. State v. Scott, 5th

Dist. No. 12-CA-45, 2014-Ohio-456, 2014 WL 545968, ¶ 19. See, also, United States v.

Tunning, 69 F.3d 107, 111 (6th Cir. 1995) (“An Alford-type guilty plea is a guilty plea in all

material respects.”)

{¶35} Based upon the foregoing, we find no merit to Appellant’s challenge to the

sufficiency or weight of the evidence and overrule his second assignment of error.

III

{¶36} In his third assignment of error, Appellant maintains he was under duress

when he entered his plea. Appellant claims trial counsel coerced and “fear mongered”

his parents into pressuring him to plea.

{¶37} With respect to Appellant’s claim his parents pressured him into entering

his guilty plea, we find such assertion relies upon evidence which was not before the trial

court; therefore, his argument must fail. State v. Ishmail, supra.

{¶38} For the reasons set forth in our discussion of appellate counsel’s subsection

“Change of Plea Hearing,” we overruled Appellant’s third assignment of error. Licking County, Case No. 2023 CA 00083 13

{¶39} Based upon the foregoing, 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.

{¶40} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, J. Delaney, P.J. and King, J. concur