[Cite as State v. Warren, 2017-Ohio-141.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1079
Appellee Trial Court No. CR0201502009
v.
Melvin Warren DECISION AND JUDGMENT
Appellant Decided: January 13, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Frank H. Spryszak, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Melvin Warren, appeals the March 17, 2016 judgment
of the Lucas County Court of Common Pleas which, after finding him guilty of
complicity to commit involuntary manslaughter following his plea pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162, 91 S.Ct. 160 (1970), sentenced him to
ten years of imprisonment. Based on the reasons set forth herein, we affirm.
{¶ 2} A brief recitation of the facts is as follows. On June 25, 2015, appellant was
charged with one count of aggravated murder, R.C. 2903.01(B), in connection with the
August 17, 1981 death of Mark Wiler in Toledo, Lucas County, Ohio. On March 11,
2016, pursuant to an agreement with the state, appellant was charged by information on
one count of complicity to involuntary manslaughter. The agreement further provided
that appellant would waive the statute of limitations issue and be sentenced under the
current sentencing structure (with lower maximum penalties.) Following the March 14,
2016 combined plea and sentencing hearing the murder count was dismissed, appellant
was sentenced, and this appeal followed.
{¶ 3} In his brief, under procedures announced in Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel indicates that he has thoroughly
examined the record, discussed the case with appellant, and is unable to find meritorious
grounds for appeal. Following Anders procedure, appellate counsel filed a brief setting
forth potential grounds for appeal and also filed a request to withdraw as counsel.
{¶ 4} Counsel notified appellant of his inability to find meritorious grounds for
appeal and provided appellant with copies of both the Anders brief and his motion to
withdraw. Counsel advised appellant of his right to file his own appellate brief.
Appellant has not filed an additional brief.
2. {¶ 5} In his Anders brief, appellant’s counsel has asserted three potential
assignments of error:
I. The trial court did not comply with the directives of R.C. 2929.11
and 2929.12 in sentencing appellant to ten years in the Ohio Department of
Rehabilitation and Corrections.
II. The trial court erred to the prejudice of appellant by imposing
consecutive sentences without making judicial findings under R.C.
2929.14(C)(4).
III. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, § 10 of the Constitution of the State of
Ohio.
{¶ 6} In appellant’s counsel’s first and second potential assignments of error he
contends that appellant’s sentence was contrary to law in that the court failed to consider
his level of involvement as a mitigating factor, R.C. 2929.12, and by imposing a
consecutive sentence failed to punish the offender using the minimum sanctions, R.C.
2929.11(A). We disagree.
{¶ 7} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, we
recognized that the abuse of discretion standard in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, though no longer controlling, still can provide
guidance for determining whether a felony sentence is clearly and convincingly contrary
3. to law. Id. at ¶ 15. Kalish determined that a sentence was not clearly and
convincingly contrary to law in a scenario in which it found that the trial court had
considered the R.C. 2929.11 purposes and principles of sentencing, had considered the
R.C. 2929.12 seriousness and recidivism factors, had properly applied postrelease
control, and had imposed a sentence within the statutory range. Id., Kalish at ¶ 18.
{¶ 8} In sentencing appellant, the trial court stated that it considered the facts of
the case and appellant’s criminal history. The court then indicated that it considered the
purposes of sentencing under R.C. 2929.11, as well as the seriousness and recidivism
factors under R.C. 2929.12. Thus, we conclude that appellant’s level of involvement was
properly considered by the court.
{¶ 9} Appellant also contends that his consecutive sentence is contrary to law.
Ordering that the sentence be served consecutive to the imprisonment term appellant was
currently serving, the court stated:
Now I do find it necessary to make this sentence consecutive, that is
both to protect the public from future crime. Your history of criminal
conduct is extensive. It is also appropriate punishment for your behavior in
this case.
It is not disproportionate to the seriousness of your conduct or to the
danger that you pose to the community.
I do find that also that the harm caused was so great or unusual that
no single prison term for your conduct along the way is appropriate and that
4. for any of the offenses that as part of any course of conduct would have
adequately reflected the seriousness of your conduct.
And also as I stated your criminal history requires consecutive
sentences.
{¶ 10} Appellant was also given mandatory postrelease control and appeal
notifications and the costs of prosecution were waived. In the court’s March 17, 2016
judgment entry, it made similar findings and specifically referenced R.C. 2929.11,
2929.12 and 2929.14(C)(4).
{¶ 11} Based on the foregoing, we find that the trial court complied with the
felony sentencing statutes in sentencing appellant to a ten-year consecutive sentence.
Accordingly, appellant’s counsel’s first and second potential assignments of error are not
well-taken.
{¶ 12} In his third potential assignment of error, appellant’s counsel argues that
appellant was denied the effective assistance of trial counsel. Specifically, counsel
contends that appellant’s trial counsel failed to preserve appeal issues by withdrawing
appellant’s motion to suppress.
{¶ 13} To establish ineffective assistance of counsel, an appellant must
demonstrate “(1) deficient performance of counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,
5. citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Strickland at 694.
{¶ 14} As stated during the hearing, as part of the negotiated plea agreement
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[Cite as State v. Warren, 2017-Ohio-141.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1079
Appellee Trial Court No. CR0201502009
v.
Melvin Warren DECISION AND JUDGMENT
Appellant Decided: January 13, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Frank H. Spryszak, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Melvin Warren, appeals the March 17, 2016 judgment
of the Lucas County Court of Common Pleas which, after finding him guilty of
complicity to commit involuntary manslaughter following his plea pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162, 91 S.Ct. 160 (1970), sentenced him to
ten years of imprisonment. Based on the reasons set forth herein, we affirm.
{¶ 2} A brief recitation of the facts is as follows. On June 25, 2015, appellant was
charged with one count of aggravated murder, R.C. 2903.01(B), in connection with the
August 17, 1981 death of Mark Wiler in Toledo, Lucas County, Ohio. On March 11,
2016, pursuant to an agreement with the state, appellant was charged by information on
one count of complicity to involuntary manslaughter. The agreement further provided
that appellant would waive the statute of limitations issue and be sentenced under the
current sentencing structure (with lower maximum penalties.) Following the March 14,
2016 combined plea and sentencing hearing the murder count was dismissed, appellant
was sentenced, and this appeal followed.
{¶ 3} In his brief, under procedures announced in Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel indicates that he has thoroughly
examined the record, discussed the case with appellant, and is unable to find meritorious
grounds for appeal. Following Anders procedure, appellate counsel filed a brief setting
forth potential grounds for appeal and also filed a request to withdraw as counsel.
{¶ 4} Counsel notified appellant of his inability to find meritorious grounds for
appeal and provided appellant with copies of both the Anders brief and his motion to
withdraw. Counsel advised appellant of his right to file his own appellate brief.
Appellant has not filed an additional brief.
2. {¶ 5} In his Anders brief, appellant’s counsel has asserted three potential
assignments of error:
I. The trial court did not comply with the directives of R.C. 2929.11
and 2929.12 in sentencing appellant to ten years in the Ohio Department of
Rehabilitation and Corrections.
II. The trial court erred to the prejudice of appellant by imposing
consecutive sentences without making judicial findings under R.C.
2929.14(C)(4).
III. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, § 10 of the Constitution of the State of
Ohio.
{¶ 6} In appellant’s counsel’s first and second potential assignments of error he
contends that appellant’s sentence was contrary to law in that the court failed to consider
his level of involvement as a mitigating factor, R.C. 2929.12, and by imposing a
consecutive sentence failed to punish the offender using the minimum sanctions, R.C.
2929.11(A). We disagree.
{¶ 7} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, we
recognized that the abuse of discretion standard in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, though no longer controlling, still can provide
guidance for determining whether a felony sentence is clearly and convincingly contrary
3. to law. Id. at ¶ 15. Kalish determined that a sentence was not clearly and
convincingly contrary to law in a scenario in which it found that the trial court had
considered the R.C. 2929.11 purposes and principles of sentencing, had considered the
R.C. 2929.12 seriousness and recidivism factors, had properly applied postrelease
control, and had imposed a sentence within the statutory range. Id., Kalish at ¶ 18.
{¶ 8} In sentencing appellant, the trial court stated that it considered the facts of
the case and appellant’s criminal history. The court then indicated that it considered the
purposes of sentencing under R.C. 2929.11, as well as the seriousness and recidivism
factors under R.C. 2929.12. Thus, we conclude that appellant’s level of involvement was
properly considered by the court.
{¶ 9} Appellant also contends that his consecutive sentence is contrary to law.
Ordering that the sentence be served consecutive to the imprisonment term appellant was
currently serving, the court stated:
Now I do find it necessary to make this sentence consecutive, that is
both to protect the public from future crime. Your history of criminal
conduct is extensive. It is also appropriate punishment for your behavior in
this case.
It is not disproportionate to the seriousness of your conduct or to the
danger that you pose to the community.
I do find that also that the harm caused was so great or unusual that
no single prison term for your conduct along the way is appropriate and that
4. for any of the offenses that as part of any course of conduct would have
adequately reflected the seriousness of your conduct.
And also as I stated your criminal history requires consecutive
sentences.
{¶ 10} Appellant was also given mandatory postrelease control and appeal
notifications and the costs of prosecution were waived. In the court’s March 17, 2016
judgment entry, it made similar findings and specifically referenced R.C. 2929.11,
2929.12 and 2929.14(C)(4).
{¶ 11} Based on the foregoing, we find that the trial court complied with the
felony sentencing statutes in sentencing appellant to a ten-year consecutive sentence.
Accordingly, appellant’s counsel’s first and second potential assignments of error are not
well-taken.
{¶ 12} In his third potential assignment of error, appellant’s counsel argues that
appellant was denied the effective assistance of trial counsel. Specifically, counsel
contends that appellant’s trial counsel failed to preserve appeal issues by withdrawing
appellant’s motion to suppress.
{¶ 13} To establish ineffective assistance of counsel, an appellant must
demonstrate “(1) deficient performance of counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,
5. citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Strickland at 694.
{¶ 14} As stated during the hearing, as part of the negotiated plea agreement
appellant first agreed to be charged with complicity to involuntary manslaughter by
information. The state then agreed to dismiss the aggravated murder charges. Also as
part of the plea agreement, appellant agreed to withdraw his motion to suppress.
{¶ 15} Reviewing the record of the proceedings below, we find that appellant was
represented vigorously and counsel was able to secure a greatly reduced potential
maximum jail sentence. Further, during the plea hearing, appellant indicated that he had
ample time to discuss the plea with his counsel and that he was satisfied with counsel’s
advice and competence. Accordingly, we reject appellant’s counsel’s third potential
assignment of error.
{¶ 16} Upon our own independent review of the record as required by Anders, we
find no other grounds for a meritorious appeal. This appeal is, therefore, found to be
without merit and is wholly frivolous. Appellant’s counsel’s motion to withdraw is found
well-taken and is granted. The judgment of the Lucas County Court of Common Pleas is
affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. The
clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
6. State v. Warren C.A. No. L-16-1079
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
7.