State v. O'Grady , 2017 Ohio 4473 ( 2017 )

[Cite as State v. O'Grady, 2017-Ohio-4473.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-16-029
Appellee Trial Court No. 2014CR0983
v.
Jason M. O’Grady DECISION AND JUDGMENT
Appellant Decided: June 23, 2017
*****
Timothy F. Braun, Sandusky County Prosecuting Attorney, for appellee.
Christopher M. Marcinko, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Jason O’Grady, appeals from the June 9, 2016 judgment of the
Sandusky County Court of Common Pleas convicting him of aggravated vehicular
homicide, a violation of R.C. 2903.06(A)(1) and a felony of the second degree, following
acceptance of his guilty plea, and sentencing him to a mandatory eight-year term of
imprisonment and a mandatory Class 1 Ohio driver’s license suspension for life.
{¶ 2} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant’s court-appointed counsel has filed an
appellate brief and motion to withdraw as counsel. He mailed a copy of the brief and
motion to appellant and informed him that he had a right to file his own brief, but he did
not do so.
{¶ 3} Appellant’s counsel states in his motion that he thoroughly reviewed the
record in this case and concluded that the trial court did not commit any error prejudicial
to appellant. However, in compliance with the requirements of Anders, appellant’s
counsel has submitted a brief setting forth two potential assignments of error:
POTENTIAL ASSIGNMENT OF ERROR ONE
Whether the trial court’s sentence of the defendant was an abuse of
the Court’s sentencing discretion.
POTENTIAL ASSIGNMENT OF ERROR TWO
Whether the trial court erred by accepting appellant’s plea despite
several responses from the Defendant during the hearing which may lead to
questions about Defendant’s intentions in entering his plea.
{¶ 4} Appellant’s appointed counsel has included arguments which support these
assignments of error, but concludes that they are unsupported by the record and/or by the
law. Therefore, he concludes that an appeal would be frivolous. We have reviewed the
entire lower court’s proceedings and have determined that there is no merit to the errors
alleged by appellant’s appointed counsel.
2.
{¶ 5} Our standard of review of a sentencing judgment is whether there is clear
and convincing evidence in the record to support the findings of the court made under
R.C. 2929.13(B)(2)(e), 2929.14(C)(14), or 2929.20(I) and whether the sentence is
contrary to law. R.C. 2953.08(G)(2).
{¶ 6} Courts have broad discretion to impose any sentence that falls within the
statutory guidelines. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 13, citing State v. Foster, 109 Ohio St.3d 1, 100, 2006-Ohio-856, 845 N.E.2d
470. In this case, the trial court was required by law to sentence appellant for a violation
of R.C. 2908.06(A), a second-degree felony, to a mandatory prison term (R.C.
2908.06(B)(2)(a)) of two-to-eight years (R.C. 2929.14(A)(2)) and a lifetime driver’s
license suspension (R.C. 2908.06(B)(2)(d)).
{¶ 7} At the plea hearing, the state asserted it was prepared to present the
following evidence at trial. Appellant was operating a motorcycle on October 24, 2014,
in Fremont, Ohio, at 11:39 p.m., when he lost control of his motorcycle. A passenger on
the motorcycle was injured in the accident and later died from her injuries. While
appellant told the police the accident was caused by a car veering into his lane, a witness
stated the accident was not caused by another car. The officers on the scene smelled a
strong odor of alcohol coming from appellant and observed that he was unsteady on his
feet and his movements were slow and methodical. Appellant admitted to drinking a few
beers, with the last drink being consumed half an hour prior to the accident. Appellant
refused to cooperate with field sobriety testing or to take a breath test. After a warrant
3.
was issued for a blood alcohol test, the police learned appellant had a blood alcohol
content of .166 grams, which is above the limit for operating a motor vehicle. The court
also reviewed a presentence investigation report and appellant’s several adult offenses,
including three offenses of driving while under the influence in 2001, 2002, and 2012 and
multiple suspensions for driving while under suspension.
{¶ 8} At the sentencing hearing, the trial court judge stated she considered the
principles and purposes of felony sentencing and the seriousness and recidivism factors
set forth in R.C. 2929.11 and 2929.12, even though she did not recite the statutory
sections. The court found there was no mitigating evidence in this case. The court noted
that appellant’s extensive record was primarily due to driving and alcohol and concluded
the maximum sentence was necessary to keep appellant from driving as well as to punish
him for the current offense.
{¶ 9} Upon a review of the sentencing hearing and judgment, we find there was
clear and convincing evidence to support the trial court’s imposition of the maximum
sentence in this case and the sentence was not contrary to law. Appellant’s first potential
assignment of error is not well-taken.
{¶ 10} In his second potential assignment of error, appellant argues that the trial
court erred by accepting appellant’s plea when portions of appellant’s responses during
the plea hearing were inaudible. The first question was whether appellant understood he
could stop the proceedings at any time to consult with his attorney. The second question
was whether appellant wanted to enter a plea. In that situation, the court indicated that
4.
appellant had to audibly respond and appellant did so by stating “yes.” Therefore, the
second issue was resolved during the hearing.
{¶ 11} Crim.R. 11(C) requires that the trial court convey specific information to
the defendant and engage in a dialogue with the defendant to ensure that he is entering a
voluntary and intelligent plea. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 25-26.
{¶ 12} The issue in this case is not the court’s statements, but whether the trial
court determined appellant understood the statement that he was free to consult with his
attorney at any time. When we consider the entire plea hearing as a whole, it is clear in
this case that appellant understood his right and ability to consult with his attorney and
that the trial court understood appellant’s response despite the fact that the court reporter
was unable to hear appellant’s response to the court’s inquiry. Appellant’s counsel
indicated that he had discussed the plea with appellant. Appellant clearly responded to
all other questions and did not enter any objections or indicate that he was confused. We
also note that this was the second plea hearing in which appellant participated because his
first guilty plea was vacated because the trial court failed to notify appellant his
conviction would require a mandatory lifetime driver’s license suspension and a
mandatory term of imprisonment. State v. O’Grady, 2016-Ohio-1275, 62 N.E.3d 668,
¶ 13 (6th Dist.). Therefore, we find the second potential assignment of error is not well-
taken.
5.
{¶ 13} Finally, this court has the obligation to fully examine the record in this case
to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct.
1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the trial
court which would justify a reversal of the judgment. Therefore, we find this appeal to be
wholly frivolous. Counsel’s request to withdraw as appellate counsel is found well-taken
and is hereby granted.
{¶ 14} Having found that the trial court did not commit error prejudicial to
appellant, the judgment of the Sandusky County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on
appeal. The clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
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
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
6.