State v. Kaufman , 2014 Ohio 1575 ( 2014 )


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  • [Cite as State v. Kaufman, 
    2014-Ohio-1575
    .]
    COURT OF APPEALS
    ASHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                 :     JUDGES:
    :     Hon. W. Scott Gwin, P.J.
    Plaintiff-Appellee                    :     Hon. Sheila G. Farmer, J.
    :     Hon. Patricia A. Delaney, J.
    -vs-                                          :
    :
    KRISTOPHER KAUFMAN                            :     Case No. 13-COA-026
    :
    Defendant-Appellant                   :     OPINION
    CHARACTER OF PROCEEDING:                            Appeal from The Court of Common
    Pleas, Case No. 13-CRI-031
    JUDGMENT:                                           Affirmed
    DATE OF JUDGMENT:                                   April 11, 2014
    APPEARANCES:
    For Plaintiff-Appellee                              For Defendant-Appellant
    JOSHUA T. ASPIN                                     MATTHEW J. MALONE
    Assistant Prosecuting Attorney                      11 ½ East 2nd Street
    110 Cottage Street, 3rd Floor                       Ashland, OH 44808
    Ashland, OH 44805
    Ashland County, Case No.13-COA-026                                                          2
    Farmer, J.
    {¶1}    Appellant, Kristopher Kaufman, was charged with one count of
    Aggravated Arson in violation of R.C. 2909.02(A)(2), a felony of the second degree by
    way of a bill of information.    Appellant entered a guilty plea to the charge and was
    sentenced to a prison term of seven years and ordered to pay restitution.
    {¶2}    The charge arose from Appellant setting his apartment on fire. There was
    a second apartment in the same building as Appellant. No one was harmed in the fire
    because the tenants in the second apartment were able to escape.             This was not
    Appellant’s first arson conviction. Appellant stated he set the fire because he wanted to
    kill himself after a fight with his girlfriend.   Appellant admitted to police he has a
    fascination with fire.
    {¶3}    Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
    to Anders v. California (1967), 
    386 U.S. 738
    , rehearing den. (1967), 
    388 U.S. 924
    ,
    indicating that the within appeal was wholly frivolous and setting forth two proposed
    Assignments of Error.     Appellant did not file a pro se brief alleging any additional
    Assignments of Error.
    {¶4}    Counsel for Appellant raises the following potential assignments of error:
    I.
    {¶5}    “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11
    BEFORE ACCEPTING DEFENDANT-APPELLANT’S GUILTY PLEA.”
    Ashland County, Case No.13-COA-026                                                       3
    II
    {¶6}   “WHETHER        THE    TRIAL     COURT’S    SENTENCE        IMPOSED      ON
    DEFENDANT-APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO
    LAW AND/OR AN ABUSE OF DISCRETION.”
    {¶7}   In Anders, the United States Supreme Court held if, after a conscientious
    examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
    then he should so advise the court and request permission to withdraw. Id. at 744.
    Counsel must accompany his request with a brief identifying anything in the record that
    could arguably support his client’s 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 defendant’s counsel satisfies
    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.
    I.
    {¶8}   In his first assignment of error, Appellant suggests the trial court did not
    comply with Crim.R. 11 in accepting Appellant’s plea.
    {¶9}   Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
    address the defendant personally and to convey certain information to such defendant,
    and makes clear that the trial court shall not accept a guilty plea or no contest without
    Ashland County, Case No.13-COA-026                                                        4
    performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶
    10. Crim.R. 11(C)(2)(a) states the trial court must determine,
    {¶10} * * * that the defendant is making the plea voluntarily, with the
    understanding of the nature of the charges and of the maximum penalty involved, and if
    applicable, that the defendant is not eligible for probation or for the imposition of
    community control sanctions at the sentencing hearing.
    {¶11} “Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
    voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
    only “substantially comply” with the rule when dealing with the non-constitutional
    elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–
    2957, ¶ 11 citing State v. Ballard, 
    66 Ohio St.2d 473
    , 475, 
    423 N.E.2d 115
     (1981), citing
    State v. Stewart, 
    51 Ohio St.2d 86
    , 
    364 N.E.2d 1163
    (1977). In State v. Griggs, 
    103 Ohio St.3d 85
    , 2004–Ohio–4415, 
    814 N.E.2d 51
    , ¶ 12, the Ohio Supreme Court noted the
    following test for determining substantial compliance with Crim.R. 11:
    {¶12} Though failure to adequately inform a defendant of his constitutional rights
    would invalidate a guilty plea under a presumption that it was entered involuntarily and
    unknowingly, failure to comply with non constitutional rights will not invalidate a plea
    unless the defendant thereby suffered prejudice. [ State v.. Nero (1990), 
    56 Ohio St.3d 106
    ,] 108, 
    564 N.E.2d 474
    . The test for prejudice is ‘whether the plea would have
    otherwise been made.’ 
    Id.
     Under the substantial-compliance standard, we review the
    totality of circumstances surrounding [the defendant's] plea and determine whether he
    subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d
    Ashland County, Case No.13-COA-026                                                         5
    86, 2008–Ohio–509, 
    881 N.E.2d 1224
     at ¶ 19–20.” State v. Alexander, 
    2012-Ohio-4843
    appeal not allowed, 
    2013-Ohio-902
    , 
    134 Ohio St. 3d 1485
    , 
    984 N.E.2d 29
    .
    {¶13} A review of the plea hearing reveals the trial court advised Appellant of his
    constitutional rights, the potential penalties for the offense, and the possibility of post
    release control. Further, the trial court inquired as to the voluntariness of Appellant’s
    plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential
    assignment of error is found to be without merit.
    II.
    {¶14} In his second assignment of error, Appellant challenges the sentence
    imposed by the trial court.
    {¶15} The Ohio Supreme Court has established a two-step analysis for
    reviewing a felony sentence. State v. Kalish, 
    120 Ohio St.3d 23
    , 2008–Ohio–4912. The
    first step is to “examine the sentencing court's compliance with all applicable rules and
    statutes in imposing the sentence to determine whether the sentence is clearly and
    convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's
    decision to be reviewed under an abuse-of-discretion standard. Id.
    {¶16} We find the sentence was not clearly and convincingly contrary to law.
    The sentence in this case was imposed within the statutory range provided in R.C.
    2929.14. Having reviewed the sentence, sentencing factors found in R.C. 2929.12, the
    facts surrounding the crime, and Appellant’s criminal history, we also find the trial court
    did not abuse its discretion in imposing the sentence in this case.
    {¶17} The second potential assignment of error is overruled.
    Ashland County, Case No.13-COA-026                                                  6
    {¶18} After independently reviewing the record, we agree with counsel's
    conclusion that no arguably meritorious claims exist upon which to base an appeal.
    Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request
    to withdraw, and affirm the judgment of the Ashland County Court of Common Pleas.
    By Farmer, J.
    Gwin, P.J. and
    Delaney, J. concur.
    SGF/as 328
    

Document Info

Docket Number: 13-COA-026

Citation Numbers: 2014 Ohio 1575

Judges: Farmer

Filed Date: 4/11/2014

Precedential Status: Precedential

Modified Date: 2/19/2016