State v. Green , 2018 Ohio 3536 ( 2018 )

[Cite as State v. Green, 2018-Ohio-3536.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0073
- vs - :
RICKY D. GREEN, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR
000038.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor; Christopher Becker and Ashleigh
Musick, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street,
N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Carlo A. Ciccone, 137 East Market Street, Warren, OH 44481 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Ricky D. Green, entered a plea of guilty to one count of murder
with a firearm specification. The Trumbull County Court of Common Pleas accepted his
plea and, on August 18, 2016, sentenced him to an aggregate term of 18 years to life.
Appellant filed a delayed appeal from this judgment and his appointed, appellate
counsel has filed a brief and requested leave to withdraw, pursuant to Anders v.
California, 386 U.S. 738 (1967). Appellant was served with the brief and subsequently
filed a pro se appellate brief. After conducting an independent review of appellant’s
case, we conclude the instant appeal is wholly frivolous and affirm the trial court’s
judgment.
{¶2} Appellant was indicted on a single count of murder, with a firearm
specification, in violation of R.C. 2903.02(A) & (D) and R.C. 2941.145. Appellant initially
entered a plea of not guilty, but changed his plea to guilty. The signed plea agreement
provided that appellant waived a presentence investigation report (“PSI”) and that
appellant and the state jointly recommended a sentence of 15 years to life on the
murder count and a three-year term of incarceration on the firearm specification, to be
served consecutively to one another.
{¶3} At the hearing on appellant’s plea, the trial court engaged appellant in a
full and thorough plea colloquy, during which the court discussed the penalty appellant
was facing in light of the joint recommendation; the court further addressed the
constitutional rights appellant agreed to waive if the court accepted the plea. Appellant
represented he understood his rights and agreed to waive them. He additionally stated
he was satisfied with his attorney’s representation and had no questions relating to his
plea of guilty. The state subsequently set forth the following factual basis:
{¶4} [H]ad this matter proceeded to trial, the State would have shown
with respect to the sole count and the specification that on or about
the date referenced in the Indictment, the Defendant shot and killed
his wife, Janell Green, in the home located at 2594 Wakefield
Creek, Farmdale, Trumbull County, Ohio. The Defendant then
called 911 and spoke to a neighbor prior to the arrival of the
paramedics and the Sheriff’s Department. The State would have
presented testimony from the Sheriff’s deputies who investigated
this case, the neighbor who spoke to the Defendant, the 911
operator, and two individuals at the hospital where the Defendant
was taken where he made admissions to those individuals as well.
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{¶5} Appellant spoke on his own behalf at the hearing and did not object to the
state’s factual basis. The court proceeded directly to sentencing and imposed the
jointly-recommended sentence. Appellant filed a notice of appeal on November 3,
2016, which this court dismissed as untimely. Appellant subsequently filed a notice of
delayed appeal, which was granted. Counsel was appointed for appellant, who later
filed a brief pursuant to Anders, supra.
{¶6} 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.
{¶7} Pursuant to Anders, counsel’s brief was properly served on appellant, who
filed a merit brief. Counsel did not propose a specific assignment of error, but advanced
several points for consideration. First, counsel notes:
{¶8} “The Ohio Supreme Court’s decision in State v. Foster (2006), 109 Ohio
St.3d 1, vested trial courts with discretion to deliver maximum and ranges of
sentencing.”
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{¶9} R.C. 2953.08 sets forth certain rights and grounds on which to appeal a
felony conviction. Whereas R.C. 2953.08(D)(1) sets forth an exception to the right to
appeal: “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.”
{¶10} First, “a sentence is ‘authorized by law’ and is not appealable within the
meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
provisions. A trial court does not have the discretion to exercise its jurisdiction in a
manner that ignores mandatory statutory provisions. See State v. Simpkins, 117 Ohio
St.3d 420, 2008-Ohio-1197, ¶17 (‘Every judge has a duty to impose lawful sentences’).”
State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, ¶20.
{¶11} There is nothing to suggest that any mandatory sentencing provisions
were ignored in this matter. Moreover, “a sentence is ‘authorized by law’ for R.C.
2953.08(D)(1) purposes if it is within the statutory range of available sentences.” State
v. Perkins, 11th Dist. Trumbull No. 2015-T-01, 2017-Ohio-154, ¶7, citing State v.
Freeman, 7th Dist. Mahoning No. 14MA25, 2014-Ohio-5725, ¶26. Appellant’s sentence
was within the applicable statutory range and thus was authorized by law. See R.C.
2929.02(B)(1) and R.C. 2941.145(A).
{¶12} The second and third conditions of R.C. 2953.08(D)(1) were also met; to
wit: the sentence was jointly recommended by the state and appellant and the trial
court imposed the recommended sentence. Hence, appellant’s sentence is not subject
to appellate review.
{¶13} Counsel’s proposition that sentencing was proper is accurate and we
discern no error.
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{¶14} Next, counsel asserts, “[t]he record does not show ineffective assistance
of counsel[,]” and “[t]here was no issue as to whether appellant’s plea was knowingly,
intelligently, and voluntarily made.” Appellant, in his pro se brief, assigns the following
proposed error:
{¶15} “Appellant was denied effective assistance of counsel, in violation of
Amendments VI and XIV, of the United States Constitution and Article I, Section 10,
Ohio Constitution.”
{¶16} We shall address counsel’s and appellant’s points together.
{¶17} A properly licensed attorney is presumed effective in his or her
representation of a defendant. State v. Smith, 17 Ohio St. 3d 98, 100 (1985). In order to
prevail on an ineffective assistance of counsel claim, a petitioner must satisfy the two-
prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). State v. Ziefle,
11th Dist. Ashtabula No. 2007-A-0019, 2007-Ohio-5621, ¶20. Specifically, appellant
must show that counsel’s performance was deficient and “must also show prejudice
resulting from the deficient performance.” State v. Jackson, 11th Dist. Ashtabula No.
2002-A-0027, 2004-Ohio-2442, ¶9.
{¶18} As a general proposition, the Supreme Court of Ohio has stated that a
guilty plea “represents a break in the chain of events which has preceded it in the
criminal process.” State v. Spates, 64 Ohio St. 3d 269, 272 (1992). Thus, if a criminal
defendant admits his guilt in open court, he waives the right to challenge the propriety of
any action taken by the court or counsel prior to that point in the proceeding unless it
affected the knowing and voluntary character of the plea. Id.
{¶19} For purposes of an ineffectiveness claim in relation to a plea of guilty, an
appellant must demonstrate that counsel’s alleged deficient performance “‘caused the
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plea to be less than knowing and voluntary.’” State v. Haynes, 11th Dist. Trumbull No.
93-T-4911, 1995 WL 237075, *2 (Mar. 3, 1995), quoting State v. Barnett, 73 Ohio
App.3d 244, 248-249 (2d Dist.1991). “Put differently, an appellant’s plea of guilty waives
his or her right to assert an ineffective assistance claim unless counsel’s errors affected
the knowing and voluntary character of the plea.” State v. Petway, 11th Dist. Lake No.
2016-L-084, 2017-Ohio-7954, ¶11, citing State v. Hill, 10th Dist. Franklin No. 10AP-634,
2011-Ohio-2869, ¶15, citing Spates, supra.
{¶20} Appellant contends counsel was ineffective because he failed to perform
an adversarial function during the course of the plea negotiations and for failing to file a
motion to suppress evidence. Appellant, however, neither argues his plea was not
knowingly and voluntarily entered, nor contends counsel’s alleged deficiencies caused
his plea to be so entered.
{¶21} At the plea hearing, the following exchange took place between appellant
and the trial judge:
{¶22} THE COURT: Nobody has to plead to any charge. You have the
right to a trial and have the State of Ohio prove its case by proof
beyond a reasonable doubt. Do you understand that?
{¶23} THE DEFENDANT: Yes, sir.
{¶24} THE COURT: At that trial, you have the right to have an attorney
represent you. And if you couldn’t afford one, one would be
appointed at State’s expense. Do you understand that?
{¶25} THE DEFENDANT: Yes, sir.
{¶26} THE COURT: Also at that trial, you have the right to cross examine
any witnesses that testify against you. Do you understand that?
{¶27} THE DEFENDANT: Yes, sir.
{¶28} THE COURT: You would also have the right to subpoena
witnesses to testify on your own behalf. Do you understand that?
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{¶29} THE DEFENDANT: Yes, sir.
{¶30} THE COURT: You have a fifth amendment right under the
constitution, and for trial purposes that means you don’t have to
take the stand if you don’t want to, nobody could force you to
testify. If you chose not to testify, nobody could comment about it.
Do you understand that?
{¶31} THE DEFENDANT: Yes, sir.
{¶32} THE COURT: If you did go forward with a trial and were convicted,
you would have an automatic right to appeal that conviction to the
Court of Appeals. If you couldn’t afford an attorney to do that
appeal, one would be appointed for you at State’s expense. Do
you understand that?
{¶33} THE DEFENDANT: Yes, sir.
{¶34} All right. I am holding in front of me a document that’s captioned as
a Finding Guilty Plea to the Indictment. I’m going to ask you if
you’ve gone over this form with your attorney?
{¶35} THE DEFENDANT: Yes, sir.
{¶36} THE COURT: Do you understand it?
{¶37} THE DEFENDANT: Yes, sir.
{¶38} THE COURT: Do you have any questions about it?
{¶39} THE DEFENDANT: No, sir.
{¶40} THE COURT: There’s a place here for your signature. I’m going to
ask you if that’s your signature?
{¶41} THE DEFENDANT: Yes, sir.
{¶42} THE COURT: Did you sign that freely and voluntarily?
{¶43} THE DEFENDANT: Yes, sir.
{¶44} THE COURT: Any threats or promises made to you to cause you
to sign this document?
{¶45} THE DEFENDANT: No, sir.
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{¶46} THE COURT: Are you satisfied your attorney has done what he
can for you in this matter?
{¶47} * * *
{¶48} THE DEFENDANT: Yes, sir.
{¶49} The court subsequently requested a factual basis from the state, allowed
appellant to speak on his own behalf, and accepted appellant’s plea. There is nothing to
suggest appellant’s plea was not entered knowingly and voluntarily or that counsel’s
acts or omissions caused appellant to so enter the plea. Further, appellant’s argument
that counsel was ineffective due to his failure to file a motion to suppress is unavailing.
Appellant’s plea of guilty did not result from unsuppressed evidence, but from
appellant’s admission to the facts in the indictment. Hence, appellant cannot establish
prejudice under Strickland. State v. Bregitzer, 11th Dist. Portage No. 2012-P-0033,
2012-Ohio-5586, ¶17, citing State v. Fitzgerald, 2nd Dist. Greene No. 2001-CA-124,
2002-Ohio-3914, ¶44.
{¶50} Appellant’s proposed assignment of error is without merit.
{¶51} After an independent review of the record, we perceive no errors and
conclude the instant appeal is wholly frivolous. The judgment of the Trumbull County
Court of Common Pleas is affirmed and counsel's motion to withdraw is granted.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concurs.
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