State v. Hutchins , 2021 Ohio 4334 ( 2021 )


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  • [Cite as State v. Hutchins, 
    2021-Ohio-4334
    .]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    CLARK COUNTY
    STATE OF OHIO                                       :
    :
    Plaintiff-Appellee                          :   Appellate Case No. 2021-CA-22
    :
    v.                                                  :   Trial Court Case No. 2020-CR-693A
    :
    SHAKILLA HUTCHINS                                   :   (Criminal Appeal from
    :   Common Pleas Court)
    Defendant-Appellant                         :
    :
    ...........
    OPINION
    Rendered on the 10th day of December, 2021.
    ...........
    IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
    County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
    Attorney for Plaintiff-Appellee
    TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
    Ohio 45402
    Attorney for Defendant-Appellant
    .............
    TUCKER, P.J.
    -2-
    {¶ 1} Appellant, Shakilla Hutchins, pleaded guilty to theft in violation of R.C.
    2913.02(A)(3), a fifth-degree felony, and she was sentenced accordingly. Appointed
    appellate counsel has filed a brief under the authority of Anders v. California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
    , 
    18 L.Ed.2d 493
     (1967), indicating he could not find any potentially
    meritorious appellate issues. After conducting an independent review of the record, we
    agree with counsel’s assessment. As such, the trial court’s judgment will be affirmed.
    Facts and Procedural History
    {¶ 2} Hutchins was indicted on one count of theft as a fifth-degree felony.
    Hutchins ultimately pleaded guilty to the indicted count, and the State recommended that
    she be sentenced to a term of community control sanctions (CCS). On the date Hutchins
    committed the theft offense, she was serving a CCS sentence in a first-degree
    misdemeanor theft case out of the Clark County Municipal Court. Following completion
    of a presentence investigation report (PSI), the trial court sentenced Hutchins to a ten-
    month prison term. This appeal followed.
    {¶ 3} As noted, Hutchins’s appointed counsel has filed an Anders brief, and he has
    requested leave to withdraw as Hutchins’s attorney. Hutchins was advised of her right
    to file a pro se brief, but such a brief has not been filed.
    Anders Standard
    {¶ 4} When counsel files an Anders brief, an appellate court must determine, “after
    a full examination of the proceedings,” whether the appeal is “wholly frivolous.” Anders,
    
    386 U.S. at 744
    , 
    87 S.Ct. 1396
    , 
    18 L.Ed.2d 493
    ; Penson v. Ohio, 
    488 U.S. 75
    , 80, 
    109 S.Ct. 346
    , 
    102 L.Ed.2d 300
     (1988). An issue is not frivolous simply because the State
    -3-
    has a strong responsive argument. State v. Pullen, 2d Dist. Montgomery No. 19232,
    
    2002-Ohio-6788
    , ¶ 4. A frivolous issue is one about which “on the facts and law involved,
    no responsible contention can be made that offers a basis for reversal.” State v. Marbury,
    2d Dist. Montgomery No. 19226, 
    2003-Ohio-3242
    , ¶ 8. If we find any issue that is not
    wholly frivolous, we must reject the Anders brief and appoint new counsel to represent
    Hutchins.
    Anders Analysis
    {¶ 5} Counsel, consistent with his duties under Anders, has requested this court to
    review two issues: whether the trial court complied with all required elements of Crim.R.
    11, and whether the trial court erred in imposing a ten-month prison term. We conclude
    that neither issue presents any potentially meritorious appellate arguments.
    {¶ 6} To “satisfy the requirements of due process, a plea of guilty * * * must be
    knowing, intelligent, and voluntary, and the record must affirmatively demonstrate” as
    much. State v. Chessman, 2d Dist. Greene No. 03-CA-100, 
    2006-Ohio-835
    , ¶ 15, citing
    Boykin v. Alabama, 
    395 U.S. 238
    , 
    89 S.Ct. 1709
    , 
    23 L.Ed.2d 274
     (1969); see also State
    v. Inskeep, 2d Dist. Champaign No. 2016-CA-2, 
    2016-Ohio-7098
    , ¶ 12, citing State v.
    Brown, 2d Dist. Montgomery Nos. 24520 & 24705, 
    2012-Ohio-199
    , ¶ 13. A trial court
    accordingly “must comply with Crim.R. 11(C)” before accepting a plea.               (Citation
    omitted.) State v. Russell, 2d Dist. Clark No. 10-CA-54, 
    2011-Ohio-1738
    , ¶ 6; Chessman
    at ¶ 15.
    {¶ 7} Crim.R. 11(C)(2)(c) requires that a defendant be advised of certain
    constitutional rights, and strict compliance with this part of the rule is required. State v.
    Thompson, 2d Dist. Montgomery No. 28308, 
    2020-Ohio-211
    , ¶ 5. Where a trial court
    -4-
    fails to comply strictly with Crim.R. 11(C)(2)(c), the defendant’s plea should be deemed
    invalid on appeal. See State v. Miller, 
    159 Ohio St.3d 447
    , 
    2020-Ohio-1420
    , 
    151 N.E.3d 617
    , ¶ 16; State v. Veney, 
    120 Ohio St.3d 176
    , 
    2008-Ohio-5200
    , 
    897 N.E.2d 621
    , ¶ 31-
    32.
    {¶ 8} Crim.R. 11(C)(2)(a) requires that a trial court determine whether a defendant
    is “making [her] plea voluntarily,” and Crim.R. 11(C)(2)(b) requires that the court inform
    the defendant of the consequences of the plea. Given that these parts of the rule relate
    to nonconstitutional issues, the “defendant must affirmatively show prejudice to invalidate
    [her] plea” where the trial court fails to comply fully with Crim.R. 11(C)(2)(a)-(b). (Citation
    omitted.) State v. Dangler, 
    162 Ohio St.3d 1
    , 
    2020-Ohio-2765
    , 
    164 N.E.3d 286
    , ¶ 14;
    State v. Rogers, 
    2020-Ohio-4102
    , 
    157 N.E.3d 142
    , ¶ 16 (12th Dist.). To show that he
    was prejudiced by the trial court’s partial noncompliance with Crim.R. 11(C)(2)(a)-(b), the
    defendant must demonstrate that she “would [not] otherwise have entered the plea.”
    State v. Thompson, 2d Dist. Montgomery No. 28308, 
    2020-Ohio-211
    , ¶ 5. Where a trial
    court completely fails to comply with Crim.R. 11(C)(2)(a)-(b), however, a defendant’s plea
    should be invalidated on appeal, and the defendant need not show prejudice. Dangler
    at ¶ 14; Rogers at ¶ 16.
    {¶ 9} Our review of the plea reveals the trial court’s strict compliance with Crim.R.
    11. Moreover, the record does not contain any suggestion that Hutchins’s plea was not
    knowing, intelligent, and voluntary.     Thus, any argument regarding compliance with
    Crim.R. 11 or that Hutchins’s plea was otherwise less than knowing, intelligent, and
    voluntary would be frivolous.
    {¶ 10} Turning to counsel’s second argument, “[t]he trial court has full discretion to
    -5-
    impose any sentence within the authorized statutory range, and the court is not required
    to make any findings or give its reasons for imposing maximum * * * sentences.” State
    v. King, 
    2013-Ohio-2021
    , 
    992 N.E.2d 491
    , ¶ 45 (2d Dist.). However, a trial court must
    consider the statutory criteria that apply to every felony offense, including those set out in
    R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 
    194 Ohio App.3d 500
    , 2011-Ohio-
    3864, 
    957 N.E.2d 55
    , ¶ 11 (2d Dist.), citing State v. Mathis, 
    109 Ohio St.3d 54
    , 2006-
    Ohio-855, 
    846 N.E.2d 1
    , ¶ 38.
    {¶ 11} Last year, the Ohio Supreme Court decided State v. Jones, 
    163 Ohio St.3d 242
    , 
    2020-Ohio-6729
    , 
    169 N.E.3d 649
    . In Jones, the Supreme Court noted that R.C.
    2953.08(G)(2)(a) allows “appellate courts to modify or vacate a sentence if it clearly and
    convincingly finds that ‘the record does not support the sentencing court’s findings under’
    certain specified statutory provisions.    But R.C. 2929.11 and R.C. 2929.12 are not
    among the statutory provisions listed in R.C. 2953.08(G)(2)(a).” Id. at ¶ 28, quoting R.C.
    2953.08(G)(2)(a). From this, the Supreme Court concluded that R.C. 2953.08(G)(2)(a)
    does not provide a basis to modify or vacate a sentence because it is not supported under
    R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 29.
    {¶ 12} Jones also noted that R.C. 2953.08(G)(2)(b) permits an appellate court to
    modify or vacate a sentence if it is “otherwise contrary to law.” Id. at ¶ 32, quoting R.C.
    2953.08(G)(2)(b). But the Supreme Court ruled that an appellate court may not vacate
    or modify a sentence based upon the conclusion the sentence is contrary to law because
    it “is not supported under R.C. 2929.11 and R.C. 2929.12.” Id. at ¶ 39.
    {¶ 13} In Hutchins’s case, under R.C. 2929.13(B)(1)(a), a defendant convicted of
    a non-violent fourth- or fifth-degree felony (including a fifth-degree theft offense) must,
    -6-
    except as provided by R.C. 2929.13(B)(1)(b), be sentenced to a CCS term if the following
    apply: (1) the defendant, as here, has not previously been convicted of a felony offense;
    (2) the most serious pending charge, again as here, is a fourth- or fifth-degree felony; and
    (3) in the two year period before the plea, the defendant, again as here, has not been
    convicted of a misdemeanor offense of violence. But even when the above conditions
    are met, the trial court has the discretion, under R.C. 2929.13(B)(1)(b), to impose a prison
    term if certain conditions apply.        One such condition, as set forth in R.C.
    2929.13(B)(1)(b)(x), is that the fourth- or fifth-degree felony was committed while the
    defendant was “under a community control sanction * * *.” As noted, Hutchins was
    serving a CCS sentence in the Clark County Municipal Court on the date the theft offense
    occurred. Thus, the trial court had the statutory authorization to impose the ten-month
    prison term. Further, the record reflects the trial court’s consideration of R.C. 2929.11
    and R.C. 2929.12. Given this consideration, the trial court’s statutory ability to impose a
    prison term, and the discussed case law, it would be frivolous to argue that Hutchins’s
    sentence is contrary to law or otherwise subject to modification or vacation.
    {¶ 14} In addition, we have reviewed the entire record.        This review has not
    revealed any potentially meritorious appellate issues.
    Conclusion
    {¶ 15} Finding no potentially meritorious appellate issues, counsel is permitted to
    withdraw. The judgment of the Clark County Common Pleas Court is affirmed.
    .............
    WELBAUM, J. and EPLEY, J., concur.
    -7-
    Copies sent to:
    Ian A. Richardson
    Travis Kane
    Shakilla Hutchins
    Hon. Douglas M. Rastatter