[Cite as State v. Shoff, 2024-Ohio-2406.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2023-A-0072
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
JOSEPH P. SHOFF, Trial Court No. 2023 CR 00071 Defendant-Appellant.
OPINION
Decided: June 24, 2024 Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Malcolm Stewart Douglas, 113 North Chestnut Street, Jefferson, OH 44047 (For Defendant-Appellant).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, Joseph P. Shoff, appeals the judgment of the Ashtabula County
Court of Common Pleas, convicting him on one count of Aggravated Assault, a felony of
the fourth degree, after entering a plea of guilty. Shoff was sentenced to 12 months in
prison. Appellate counsel filed a brief and a request for leave to withdraw, pursuant to
Anders v. California, 386 U.S. 738 (1967). For the reasons discussed in this opinion, we
find no arguable issues on appeal and therefore grant the motion for leave and affirm the
trial court. {¶2} Shoff was indicted by the Ashtabula County Grand Jury on one count of
Felonious Assault, a second-degree felony, in violation of R.C. 2903.11(A) and (D)(1)(a).
Shoff entered a plea to one amended count of Aggravated Assault, a fourth-degree
felony, in violation of R.C. 2903.12(A). After a thorough plea colloquy, the trial court
accepted the guilty plea. Both the state and Shoff jointly recommended a sentence of
community control. The trial court, however, rejected the recommendation and sentenced
Shoff to a term of 12 months in prison. This appeal follows.
{¶3} In Anders, the United States Supreme Court held that if appellate counsel,
after a conscientious examination of the record, finds an appeal to be wholly frivolous, he
or she should advise the court and request permission to withdraw. Id. at 744. This
request to withdraw must be accompanied by a brief citing anything in the record that
could arguably support an appeal. Id. Further, counsel must furnish his or her client with
a copy of the brief and request to withdraw and give the client an opportunity to raise any
additional issues. Id. Once these requirements have been met, the appellate court must
review the entire record to determine whether the appeal is wholly frivolous. Id. If the
court finds the appeal wholly frivolous, the court may grant counsel’s motion to withdraw
and proceed to a decision on the merits. Id. If, however, the court concludes the appeal
is not frivolous, it must appoint new counsel for the client. Id.
{¶4} Counsel’s appellate brief comports with the requirements of Anders. In
doing so, counsel assigns the following potential error:
{¶5} “Did the trial court violate the purposes of felony sentencing as laid out in
R.C. 2929.11 when it sentenced the appellant to a term of prison instead of a term of
community control.”
Case No. 2023-A-0072 {¶6} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2).
{¶7} “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 . . . if it clearly and convincingly finds . . .
[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(b).
{¶8} “A sentence is contrary to law when it is ‘in violation of statute or legal
regulations,’” such as where it falls outside of the statutory range for the offense or where
the trial court fails to consider the purposes and principles of sentencing under R.C.
2929.11 and the factors in R.C. 2929.12. State v. Meeks, 2023-Ohio-988, ¶ 11 (11th
Dist.), quoting State v. Jones, 2020-Ohio-6729, ¶ 34. “Nothing[, however,] in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12[,]” and an appellate court cannot
vacate a sentence “based on its view that the sentence is not supported by the record[.]”
Jones at ¶ 39 and 42; State v. Reed, 2023-Ohio-1324, ¶ 13 (11th Dist.) (we “cannot
review alleged error under R.C. 2929.11 and R.C. 2929.12 to evaluate whether the
sentencing court’s findings for those sentences are unsupported by the record”).
{¶9} In this matter, the trial court expressly considered the relevant R.C. 2929.11
and R.C. 2929.12 factors. In doing so, the court stated it considered the purposes and
principles of felony sentencing, as well as the overriding purposes which are punishing
the offender and protecting the public from future crime. The court noted that Shoff had
Case No. 2023-A-0072 a prior criminal record, including a felony conviction. The court pointed out Shoff did not
appear for his pretrial, and a warrant was subsequently issued for his arrest. The court
emphasized that Shoff “had some trouble here following the rules of probation previously,
there were two probation violations that were filed in Lake County against [him] and [he
was not] successful on community control in that case.” The court additionally pointed
out that Shoff refused to be interviewed by the NEOCAP facility because he had
previously completed the program and he did not believe it would be helpful. Considering
these points, the trial court declined to accept the joint recommendation for community
control and sentenced Shoff to 12 months in prison.
{¶10} Shoff’s sentence is within the statutory range and, as emphasized above,
we cannot evaluate whether the trial court’s considerations or the weight it afforded the
factors leading to its imposition of sentence were unsupported by the record. Accordingly,
there is no colorable issue on appeal relating to the trial court’s imposition of sentence.
{¶11} Next, we shall analyze whether the trial court properly addressed the
necessary Crim.R. 11 factors in concluding Shoff’s plea was knowingly, intelligently, and
voluntarily entered.
{¶12} Pursuant to Crim.R. 11(C)(2), when a defendant is pleading guilty to felony
offenses, the trial court must address the defendant personally and inform the defendant
of various constitutional and non-constitutional rights prior to accepting his plea. The
constitutional rights are set forth under Crim.R. 11(C)(2)(c): the trial court is to inform the
defendant that by pleading guilty or no contest, he or she “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
Case No. 2023-A-0072 beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.”
{¶13} Compliance with Crim.R. 11 “ensures that defendants enter pleas with
knowledge of rights that they would forgo and creates a record by which appellate courts
can determine whether pleas are entered voluntarily.” State v. Griggs, 2004-Ohio-4415,
¶ 11, citing State v. Nero, 56 Ohio St.3d 106, 107 (1990).
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[Cite as State v. Shoff, 2024-Ohio-2406.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2023-A-0072
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
JOSEPH P. SHOFF, Trial Court No. 2023 CR 00071 Defendant-Appellant.
OPINION
Decided: June 24, 2024 Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Malcolm Stewart Douglas, 113 North Chestnut Street, Jefferson, OH 44047 (For Defendant-Appellant).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, Joseph P. Shoff, appeals the judgment of the Ashtabula County
Court of Common Pleas, convicting him on one count of Aggravated Assault, a felony of
the fourth degree, after entering a plea of guilty. Shoff was sentenced to 12 months in
prison. Appellate counsel filed a brief and a request for leave to withdraw, pursuant to
Anders v. California, 386 U.S. 738 (1967). For the reasons discussed in this opinion, we
find no arguable issues on appeal and therefore grant the motion for leave and affirm the
trial court. {¶2} Shoff was indicted by the Ashtabula County Grand Jury on one count of
Felonious Assault, a second-degree felony, in violation of R.C. 2903.11(A) and (D)(1)(a).
Shoff entered a plea to one amended count of Aggravated Assault, a fourth-degree
felony, in violation of R.C. 2903.12(A). After a thorough plea colloquy, the trial court
accepted the guilty plea. Both the state and Shoff jointly recommended a sentence of
community control. The trial court, however, rejected the recommendation and sentenced
Shoff to a term of 12 months in prison. This appeal follows.
{¶3} In Anders, the United States Supreme Court held that if appellate counsel,
after a conscientious examination of the record, finds an appeal to be wholly frivolous, he
or she should advise the court and request permission to withdraw. Id. at 744. This
request to withdraw must be accompanied by a brief citing anything in the record that
could arguably support an appeal. Id. Further, counsel must furnish his or her client with
a copy of the brief and request to withdraw and give the client an opportunity to raise any
additional issues. Id. Once these requirements have been met, the appellate court must
review the entire record to determine whether the appeal is wholly frivolous. Id. If the
court finds the appeal wholly frivolous, the court may grant counsel’s motion to withdraw
and proceed to a decision on the merits. Id. If, however, the court concludes the appeal
is not frivolous, it must appoint new counsel for the client. Id.
{¶4} Counsel’s appellate brief comports with the requirements of Anders. In
doing so, counsel assigns the following potential error:
{¶5} “Did the trial court violate the purposes of felony sentencing as laid out in
R.C. 2929.11 when it sentenced the appellant to a term of prison instead of a term of
community control.”
Case No. 2023-A-0072 {¶6} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2).
{¶7} “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 . . . if it clearly and convincingly finds . . .
[t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(b).
{¶8} “A sentence is contrary to law when it is ‘in violation of statute or legal
regulations,’” such as where it falls outside of the statutory range for the offense or where
the trial court fails to consider the purposes and principles of sentencing under R.C.
2929.11 and the factors in R.C. 2929.12. State v. Meeks, 2023-Ohio-988, ¶ 11 (11th
Dist.), quoting State v. Jones, 2020-Ohio-6729, ¶ 34. “Nothing[, however,] in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12[,]” and an appellate court cannot
vacate a sentence “based on its view that the sentence is not supported by the record[.]”
Jones at ¶ 39 and 42; State v. Reed, 2023-Ohio-1324, ¶ 13 (11th Dist.) (we “cannot
review alleged error under R.C. 2929.11 and R.C. 2929.12 to evaluate whether the
sentencing court’s findings for those sentences are unsupported by the record”).
{¶9} In this matter, the trial court expressly considered the relevant R.C. 2929.11
and R.C. 2929.12 factors. In doing so, the court stated it considered the purposes and
principles of felony sentencing, as well as the overriding purposes which are punishing
the offender and protecting the public from future crime. The court noted that Shoff had
Case No. 2023-A-0072 a prior criminal record, including a felony conviction. The court pointed out Shoff did not
appear for his pretrial, and a warrant was subsequently issued for his arrest. The court
emphasized that Shoff “had some trouble here following the rules of probation previously,
there were two probation violations that were filed in Lake County against [him] and [he
was not] successful on community control in that case.” The court additionally pointed
out that Shoff refused to be interviewed by the NEOCAP facility because he had
previously completed the program and he did not believe it would be helpful. Considering
these points, the trial court declined to accept the joint recommendation for community
control and sentenced Shoff to 12 months in prison.
{¶10} Shoff’s sentence is within the statutory range and, as emphasized above,
we cannot evaluate whether the trial court’s considerations or the weight it afforded the
factors leading to its imposition of sentence were unsupported by the record. Accordingly,
there is no colorable issue on appeal relating to the trial court’s imposition of sentence.
{¶11} Next, we shall analyze whether the trial court properly addressed the
necessary Crim.R. 11 factors in concluding Shoff’s plea was knowingly, intelligently, and
voluntarily entered.
{¶12} Pursuant to Crim.R. 11(C)(2), when a defendant is pleading guilty to felony
offenses, the trial court must address the defendant personally and inform the defendant
of various constitutional and non-constitutional rights prior to accepting his plea. The
constitutional rights are set forth under Crim.R. 11(C)(2)(c): the trial court is to inform the
defendant that by pleading guilty or no contest, he or she “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
Case No. 2023-A-0072 beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.”
{¶13} Compliance with Crim.R. 11 “ensures that defendants enter pleas with
knowledge of rights that they would forgo and creates a record by which appellate courts
can determine whether pleas are entered voluntarily.” State v. Griggs, 2004-Ohio-4415,
¶ 11, citing State v. Nero, 56 Ohio St.3d 106, 107 (1990). “When a trial judge fails to
explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), the guilty or no-contest
plea is invalid ‘under a presumption that it was entered involuntarily and unknowingly.’”
State v. Clark, 2008-Ohio-3748, ¶ 31, quoting Griggs, at ¶ 12.
{¶14} The record of the plea hearing demonstrates that Shoff was fully advised of
all constitutional and non-constitutional rights he was waiving.
{¶15} The trial court engaged Shoff in a complete Crim.R. 11 colloquy. In
particular, the court advised Shoff that, by pleading guilty, he was waiving: (1) his right to
a jury trial; (2) his right to confront his accusers; (3) his right to compulsory process to
obtain witnesses; (4) his right to require the state to prove his guilt beyond a reasonable
doubt; and (5) his privilege against compulsory self-incrimination. The court accordingly
apprised Shoff of the constitutional rights he would waive by entering the guilty plea.
{¶16} The court further explained the nature of the charges and their practical and
legal effects as well as the maximum penalty Shoff could face if the court accepted his
plea of guilty (i.e., Shoff’s non-constitutional rights). See Crim.R. 11(C)(2)(a) and (b).
The trial court also explained that it was not bound by the jointly-agreed-upon sentencing
recommendation proposed by the parties. It further specified that, by pleading guilty to
Case No. 2023-A-0072 the offense of Aggravated Assault, the conviction will have implications on his ability to
own and use a firearm.
{¶17} Shoff stated he understood the rights he was waiving as well as the non-
constitutional implications of pleading guilty. Shoff specifically stated he desired to plead
guilty to the underlying amended charge of Aggravated Assault. The record
demonstrates Shoff understood the rights he was waiving and knowingly, intelligently,
and voluntarily entered the plea. We discern no error in the plea-colloquy/acceptance
process.
{¶18} The purpose of the Anders procedure is to “vindicate the constitutional right
to appellate counsel . . . ” Smith v. Robbins, 528 U.S. 259, 273 (2000). The process,
while unusual, “ensures an indigent criminal defendant, in his or her direct appeal of right,
will receive conscientious scrutiny of the record and, if necessary, have new counsel
appointed to actively assert any issues which may, in the attorney’s professional
judgment, result in reversal of a judgment or a reduction in sentence.” (Emphasis in
original.) State v. Gibbs, 2014-Ohio-1341, ¶ 32 (11th Dist.) The Anders process
consequently sets forth a “prophylactic framework” to preserve an appellant’s right to due
process of law in his or her direct appeal of right. See, e.g., Pennsylvania v. Finley, 481
U.S. 551, 555 (1987); see also Anders, 386 U.S. at 743.
Case No. 2023-A-0072 {¶19} Because there are no arguable issues in this appeal, we conclude the
appeal is wholly frivolous. The request to withdraw filed by appellate counsel is well-
taken and is hereby granted. Therefore, the judgment of the Ashtabula County Court of
Common Pleas is hereby affirmed.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
Case No. 2023-A-0072