State v. Singer

2024 Ohio 2893

• Court: Ohio Court of Appeals
• Decided: July 31, 2024
• Docket: CT2024-0011, CT2024-0012
• Status: Published

Opinion

[Cite as State v. Singer, 2024-Ohio-2893.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : TIMOTHEE L. SINGER, : Case No. CT2024-0011 : CT2024-0012 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR2023-0490 and CR2023-0816

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 31, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Rd Muskingum County, Ohio Thornville, Ohio 43076 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2024-0011, CT2024-012 2

Baldwin, J.

{¶1} The appellant appeals his conviction following his pleas of guilty pursuant

to a negotiated plea agreement, and the imposition of sentence consistent with that which

was jointly recommended by the parties. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On August 2, 2023, the appellant was indicted in Muskingum County Court

of Common Pleas Case Number CR2023-0490 on the following charges: (1) Failure to

Comply with an Order or Signal of a Police Officer in violation of R.C. 2921.331(B) and

(C)(5)(a)(ii), a third degree felony; (2) Theft in violation of R.C. 2913.02(A)(1) and (B)(2),

a fifth degree felony; (3) Possession of a Fentanyl-Related Compound in violation of R.C.

2925.11(A) and (C)(11)(d), a second degree felony; (4) Aggravated Possession of Drugs

in violation of R.C. 2925.11(A) and (C)(1)(a), a fifth degree felony; and, (5) Aggravated

Possession of Drugs in violation of R.C. 2925.11(A) and (C)(1)(a), a fifth degree felony,

with a specification for forfeiture of money in a drug case pursuant to R.C. 2941.1417(A).

The appellant was represented by counsel, and on August 9, 2023, entered a plea of not

guilty to all charges and requested a jury trial.

{¶3} On December 21, 2023, the appellant was indicted in Muskingum County

Court of Common Pleas Case Number CR2023-0816 on the following charges: (1)

Falsification in violation of R.C. 2921.13(A)(3) and (F)(1), a first degree misdemeanor; (2)

Aggravated Trafficking in Drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(d), a second

degree felony; (3) Aggravated Possession of Drugs in violation of R.C. 2925.11(A) and

(C)(1)(c), a second degree felony; (4) Possession of a Fentanyl-Related Compound in

violation of 2925.11(A) and (C)(11)(a), a fifth degree felony; and, (5) Illegal Use or Muskingum County, Case No. CT2024-0011, CT2024-012 3

Possession of Drug Paraphernalia in violation of R.C. 2925.14(C)(1) and (F)(1), a fourth

degree misdemeanor.

{¶4} The parties entered into a negotiated plea agreement in Case Number

CR2023-0490, filed with the trial court on December 21, 2023, in which the appellant

agreed to plead guilty to Count 1, Failure to Comply, a third degree felony; Count 2, Theft,

a fifth degree felony; Count 3, Possession of Fentanyl-Related Compound, a second

degree felony; and Count 5, Possession of Drugs (Bromazelam), a fifth degree felony.

The appellee moved to dismiss Count 4 in Case Number CR2023-0490, which the trial

court granted.

{¶5} In addition, the parties entered into a negotiated plea agreement in Case

Number CR2023-0816, filed with the trial court on December 21, 2023, in which the

appellant agreed to plead guilty to Count 2, Aggravated Trafficking in Drugs

(Methamphetamine), a second degree felony. The appellee moved to dismiss Counts 1,

3, 4, and 5 in Case Number CR2023-0816, which the trial court granted.

{¶6} The trial court conducted a change of plea and sentencing hearing in both

cases on December 21, 2023. The appellant appeared before the trial court with counsel,

at which time he pleaded guilty to the charges in cases CR2023-0490 and CR2023-0816

as outlined above. The trial court engaged in the requisite Crim.R. 11 colloquy regarding

the appellant’s plea on all counts.

{¶7} Specifically, the appellant pleaded guilty to the following charges in Case

Number CR2023-0490:

• Count 1: Failure to Comply, a third degree felony;

• Count 2: Theft > $1,000, a fifth degree felony; Muskingum County, Case No. CT2024-0011, CT2024-012 4

• Count 3: Possession of Fentanyl-Related Compound > 10 grams, a

second degree felony; and,

• Count 5: Possession of Bromazolam, a fifth degree felony.

{¶8} The joint sentencing recommendation for Case Number CR2023-0490 was

36 months on Count 1; 12 months on Count 2; 2 years on Count 3; and 12 months on

Count 5. All counts were to run consecutively, for total of 7 years.

{¶9} In addition, the appellant pleaded guilty in Case Number CR2023-0816 to

Count 2, Aggravated Trafficking in Methamphetamine, a third degree felony, the joint

sentencing recommendation for which was 36 months, consecutive to the 7 years to

which the appellant was sentenced in Case Number CR2023-0490.

{¶10} The aggregate joint sentencing recommendation between the two cases

was 10 years. Further, the parties stipulated to the findings for maximum and consecutive

sentences, acknowledging that an agreement was arranged to arrive at the 10-year joint

recommendation.

{¶11} The trial court sentenced the appellant as follows. In CR2023-0490, the

court ordered forfeiture of seized cash, and ordered that count 4 be dismissed. Further,

the court imposed the following prison terms:

• Count 1: 36 months

• Count 2: 12 months

• Count 3: 2 years

• Count 5: 12 months

The court further ordered that all sentences in CR2023-0490 run consecutively. Muskingum County, Case No. CT2024-0011, CT2024-012 5

{¶12} With regard to the sentence in Case Number CR2023-0816, the court

ordered that Counts 1, 3, 4, 5, and 6 be dismissed; and, as to Count 2, ordered a 36

month sentence to run consecutive to the sentence in CR2023-0490. The total aggregate

sentence was 10 years. This is the precise sentence that was jointly recommended by

the by the parties following their negotiated plea agreement.

{¶13} Further, following a careful review of the record, the appellant’s post release

control time was terminated, and ordered to run “mandatory consecutive” to the 10 year

sentence. The additional PRC time, pursuant to statute, was not described in the plea

agreement prior to the plea of guilty. However, the trial court specifically addressed PRC

time with the appellant on the record prior to accepting his plea of guilty in the following

exchange:

COURT: ... And are you currently on any form of probation, parole,

community control sanctions, anything like that?

THE DEFENDANT: (Nods affirmatively.)

THE COURT: What are you on?

THE DEFENDANT: I'm on PRC.

THE COURT: PRC. You understand by entering your plea of guilty here

today that could possibly be used against you in a violation of your post-

release control?

THE DEFENDANT: Yes, Your Honor.

THE COURT: If your post-release control is terminated, then any time you

have remaining must, by law, be served consecutively to any sentence you

receive. Muskingum County, Case No. CT2024-0011, CT2024-012 6

THE DEFENDANT: Yes.

{¶14} The appellant’s guilty plea and trial court’s sentence was memorialized in

both cases in Entries dated December 28, 2023.

{¶15} The appellant filed a timely pro se appeal in both CR2023-0490 and

CR2023-0816. He was thereafter appointed appellate counsel, who filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), in which he set forth the following potential

assignment of error:

THIS BRIEF IS SUBMITTED IN ACCORDANCE WITH LOCAL RULE 9(G)

AND PURSUANT TO ANDERS V. CALIFORNIA, 386 U.S. 738 (1967). COUNSEL

HAS CAREFULLY EXAMINED THE FACTS AND MATTERS CONTAINED IN

THE RECORD ON APPEAL AND HAS RESEARCHED THE LAW IN

CONNECTION THEREWITH AND HAS CONCLUDED THAT THE APPEAL

DOES NOT PRESENT A NONFRIVOLOUS LEGAL QUESTION. IN REACHING

THIS CONCLUSION, COUNSEL HAS THOROUGHLY READ THE RECORD

AND HAS EXAMINED THE RECORD FOR ANY ARGUABLE VIOLATIONS OF

THE CONSTITUTION, OHIO STATUTES, THE OHIO RULES OF CRIMINAL

PROCEDURE, THE OHIO RULES OF EVIDENCE, AND THE OHIO

SENTENCING GUIDELINES.

STANDARD OF REVIEW

{¶16} The United States Supreme Court held in Anders that if, after conscientious

examination of the record, an appellant’s counsel concludes that the case is wholly

frivolous, then he or she 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 Muskingum County, Case No. CT2024-0011, CT2024-012 7

record that could arguably support the 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 any matters that the client chooses. Id. Once the appellant’s counsel has satisfied

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.

{¶17} Attorney Chris Brigdon, counsel for appellant, moved to withdraw in the

March 13, 2024, Brief of Appellant and March 25, 2024, Amended Brief of Appellant

pursuant to Anders, informing this Court that he had conducted a review of the entire

record and determined that there were no viable issues which would support an appeal,

and requesting that this Court make an independent review of the record to determine

whether there are any additional issues that would support an appeal. Counsel further

certified in the March 25, 2024, Amended Brief of Appellant that he served a copy of the

Amended Brief upon the appellant at the Noble Correctional Institution, 15708

McConnosville Rd., Caldwell, OH 43724.

{¶18} In addition, we informed the appellant in a March 26, 2024, Judgment Entry,

sent to him via certified mail, that the Court received notice that he had been informed by

his attorney that an Anders brief was filed on his behalf and provided notice that supplied

the appellant with a copy. In addition, we granted the appellant sixty days from the date

of the entry to file a pro se brief in support of the appeal. The appellant has not filed pro

se brief. Muskingum County, Case No. CT2024-0011, CT2024-012 8

{¶19} The record establishes that the appellant’s counsel has satisfied the

requirements set forth in Anders. Accordingly, we review the record in this case and

determine whether any arguably meritorious issues exist, “… keeping in mind that,

‘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, 2002-Ohio-6788, ¶ 4 (2nd Dist.); State v. Marbury, 2003-Ohio-

3242, ¶ 7-8 (2nd Dist.); State v. Chessman, 2005-Ohio-2511, ¶ 16-17 (2nd Dist.).” State

v. Moore, 2009-Ohio-1416, ¶4 (2nd Dist.).’” State v. Reynolds, 2024-Ohio-1956, ¶ 10 (5th

Dist.).

ANALYSIS

{¶20} The appellant entered into a negotiated plea agreement, pleading guilty to

the agreed upon charges and receiving the sentence that had been jointly recommended

by the parties. The trial court engaged in the requisite Crim.R. 11 colloquy prior to

accepting his guilty plea as outlined above, and sentenced him to the jointly

recommended sentence, which was within statutory parameters.

{¶21} R.C. 2953.08(D)(1) states that “[a] sentence imposed upon a defendant is

not subject to review under this section if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution in the case, and is imposed

by a sentencing judge.” In this case, the sentence jointly recommended by the parties

and imposed by the trial court was within the statutory parameters for the offenses at Muskingum County, Case No. CT2024-0011, CT2024-012 9

issue, and therefore was authorized by law. As was recently stated by the court in State

v. Davis, 2024-Ohio-905 (7th Dist.):

A sentence is not subject to appellate review if the sentence “has

been recommended jointly by the defendant and the prosecutor in the case,

and is imposed by the sentencing judge.” R.C. 2953.08(D)(1). In a similar

situation, the Sixth District cited this statutory prohibition, pointed out the

defendant specifically asked the court to accept the joint sentencing

recommendation, and concluded the sentence was not subject to appellate

review. Melendez, 6th Dist. No. WD-07-052 at ¶ 15. In any event, the Sixth

District held defense counsel did not render ineffective assistance by the

mere failure to request a PSI. Id., citing State v. Berch 7th Dist. Mahoning

No. 91-CA-222 (Aug. 25, 1993).

Id. at ¶ 15.

{¶22} The appellant entered into a negotiated plea agreement with the appellee

in which he agreed to plead guilty to a number of the charges set forth in the indictments,

the appellee agreed to dismiss a number of the charges, and the parties jointly

recommended a sentence. The trial court imposed the sentence that was jointly

recommended by the parties, and which was within statutory sentencing parameters.

Accordingly, this matter is not subject to appeal. Furthermore, the record does not support

an argument that the appellant’s trial counsel was ineffective. Muskingum County, Case No. CT2024-0011, CT2024-012 10

CONCLUSION

{¶23} Based upon the foregoing, after independently reviewing the record, we

agree with appellate counsel’s conclusion that no non-frivolous claims exist that would

justify remand or review of the appellant’s conviction or sentence. We therefore find the

appeal to be wholly frivolous under Anders. Attorney Brigdon’s motion to withdraw as

counsel for the appellant is hereby granted, and the judgment of the Muskingum County

Court of Common Pleas is hereby affirmed.

By: Baldwin, J.

Delaney, P.J. and

Hoffman, J. concur.