State v. Contento , 2018 Ohio 111 ( 2018 )

[Cite as State v. Contento, 2018-Ohio-111.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-1
:
v. : Trial Court Case Nos. 2016-CR-35
: and 2016-CR-288
THOMAS A. CONTENTO :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 12th day of January, 2018.
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ANTHONY KENDELL, Atty. Reg. No. 0067242, Miami County Prosecutor’s Office, 201
West Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Thomas A. Contento, appeals from his conviction in the
Miami County Court of Common Pleas after he pled guilty to two counts of rape of a
person less than 13 years of age. On August 30, 2017, Contento’s assigned counsel
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 that there are no issues with arguable merit to present on
appeal. On September 8, 2017, we notified Contento that his counsel found no
meritorious claim for review and granted Contento 60 days to file a pro se brief assigning
any errors. Contento did not file a pro se brief. After conducting a review of the record
as prescribed by Anders, we find no issues with arguable merit for appeal.
Facts and Course of Proceedings
{¶ 2} In 2016, the Miami County Grand Jury returned indictments in three separate
cases charging Contento with a total of eight counts of rape of a person less than 13
years of age in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The
alleged rape offenses occurred between 1995 and 2005, and involved three victims, K.C.,
S.C., and H.K.
{¶ 3} Pursuant to a plea agreement, Contento agreed to plead guilty to two of the
eight counts of rape, one from Case No. 2016-CR-35, which involved K.C., and the other
from Case No. 2016-CR-288, which involved S.C. In exchange for Contento’s guilty
pleas, the State agreed to dismiss the remaining six counts of rape. In doing so,
Contento’s third case, Case No. 2016-CR-289, which involved H.K., was dismissed in its
entirety.
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{¶ 4} In addition to dismissing the remaining six counts of rape, the State agreed
not to file any new sexual abuse charges against Contento with respect to K.C., S.C., and
H.K. The parties also agreed to a jointly-recommended sentence of 9 years in prison for
each of Contento’s two rape offenses, to be served consecutively for a total prison term
of 18 years. The parties also stipulated that 188 days of jail time credit would be applied
to the rape offense in Case No. 2016-CR-35.
{¶ 5} On June 23, 2016, Contento entered his guilty pleas in Case Nos. 2016-CR-
35 and 2016-CR-288. At the plea hearing, the trial court conducted a Crim.R. 11 plea
colloquy and notified Contento that he would be required to register as a “sexually
oriented offender” under Megan’s Law, the sex offender registration and classification
system that was applicable when Contento committed the two rape offenses at issue.
The trial court also went over the specific registration requirements, all of which Contento
claimed he understood.
{¶ 6} After accepting Contento’s guilty pleas, the trial court ordered a presentence
investigation report and scheduled the matter for sentencing on August 1, 2016. At
sentencing, the trial court indicated that it had considered all the statements and letters
submitted on behalf of Contento and the victims, the presentence investigation report,
and the parties’ jointly-recommended sentence. The trial court further indicated that it
had considered the purposes and principles of sentencing in R.C. 2929.11 and weighed
the relevant seriousness and recidivism factors in R.C. 2929.12.
{¶ 7} In weighing the recidivism factors, the trial court found that Contento’s lack
of remorse was a factor indicating that recidivism was likely, while his lack of a criminal
record indicated that recidivism was less likely. In weighing the seriousness factors, the
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trial court found that Contento’s rape offenses were rendered more serious due to the
age of the victims and his relationship with the victims, as Contento was the victims’
biological father and stepfather. The trial court further found that Contento’s offenses
were more serious due to the serious physical and psychological harm inflicted on the
victims. The trial court found no factors making Contento’s offenses less serious.
{¶ 8} Following these considerations, the trial court accepted the parties’ jointly-
recommended sentence and imposed a 9-year mandatory prison term for each count of
rape to be served consecutively. While the trial court was not required to make any
consecutive-sentence findings due to the sentence being jointly recommended by the
parties, see State v. Sergent, 148 Ohio St. 3d 94, 2016-Ohio-2696, 69 N.E.2d 627, ¶ 43-
44, out of precaution, the trial court made consecutive-sentence findings on the record at
the sentencing hearing.1
{¶ 9} Per the parties’ stipulation, the trial court applied 188 days of jail time credit
to the sentence in Case No. 2016-CR-35. The trial court also imposed five years of
mandatory post-release control pursuant to R.C. 2967.28(B)(1). Thereafter, the trial
court classified Contento as a sexually oriented offender under Megan’s Law and
explained the applicable registration and verification requirements, noting that Contento
was required to register for a period of 10 years.
{¶ 10} Following his conviction and sentence, Contento filed the instant appeal and
his appellate counsel submitted an Anders brief for our review.
1 Since Contento’s sentence was jointly recommended, the trial court was also not
required to incorporate its consecutive-sentence findings in the corresponding sentencing
entries. See State v. Marcum, 2d Dist. Montgomery No. 26255, 2015-Ohio-549, ¶ 7,
fn.1.
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Law and Analysis
{¶ 11} Pursuant to Anders, this court must conduct an independent review of the
record to determine if the appeal at issue is wholly frivolous. Anders, 386 U.S. at 744,
87 S. Ct. 1396, 18 L. Ed. 2d 493. “Anders equates a frivolous appeal with one that
presents issues lacking in arguable merit. An issue does not lack arguable merit merely
because the prosecution can be expected to present a strong argument in reply, or
because it is uncertain whether a defendant will ultimately prevail on that issue on appeal.”
State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n
issue lacks arguable merit if, on the facts and law involved, no responsible contention can
be made that it offers a basis for reversal.” Id., citing State v. Pullen, 2d Dist.
Montgomery No. 19232, 2002-Ohio-6788, ¶ 4.
{¶ 12} If we determine the appeal is frivolous, we may grant counsel’s request to
withdraw and then dismiss the appeal without violating any constitutional requirements,
or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,
2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.
However, “[i]f we find that any issue presented or which an independent analysis reveals
is not wholly frivolous, we must appoint different appellate counsel to represent the
defendant.” Marbury at ¶ 7, citing Pullen at ¶ 2.
{¶ 13} As a potential assignment of error, Contento’s appellate counsel suggests
that Contento’s guilty plea was not knowingly, intelligently, and voluntarily entered. It is
well established that a guilty plea is constitutionally valid only if it is entered knowingly,
intelligently, and voluntarily. State v. Bateman, 2d Dist. Champaign No. 2010CA15,
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2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d
274 (1969).
{¶ 14} “In order for a plea to be knowing, intelligent, and voluntary, the trial court
must comply with Crim.R. 11(C).” (Citation omitted.) State v. Russell, 2d Dist. Clark
No. 10-CA-54, 2011-Ohio-1738, ¶ 6. Unlike the advisements required in Crim.R.
11(C)(2)(c), which involve constitutional rights and necessitate strict compliance by the
trial court, the non-constitutional advisements in Crim.R. 11(C)(2)(a) only require
substantial compliance. Id. at ¶ 7-8, citing State v. Clark, 119 Ohio St. 3d 239, 2008-
Ohio-3748, 893 N.E.2d 462, ¶ 31 and State v. Nero, 56 Ohio St. 3d 106, 108, 564 N.E.2d
474 (1990). Under the substantial compliance standard, “a slight deviation from the text
of the rule is permissible; so long as the totality of the circumstances indicates that ‘the
defendant subjectively understands the implications of his plea and the rights he is
waiving,’ the plea may be upheld.” Clark at ¶ 31, quoting Nero at 108.
{¶ 15} If there is no substantial compliance with regard to a non-constitutional right,
the reviewing court is to ascertain whether there was partial compliance or a total failure
to comply with the rule. Id. at ¶ 32. If there is partial compliance, the plea cannot be
vacated unless the defendant shows that he was prejudiced. Id. “The test for prejudice
is ‘whether the plea would have otherwise been made.’ ” Id., quoting Nero at 108.
(Other citation omitted.) “If the trial judge completely failed to comply with the rule, e.g.,
by not informing the defendant of a mandatory period of postrelease control, the plea
must be vacated.” Id., citing State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509, 881
N.E.2d 1224, paragraph two of the syllabus. “ ‘A complete failure to comply with the rule
does not implicate an analysis of prejudice.’ ” Id., quoting Sarkozy at ¶ 22.
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{¶ 16} In this case, the record reveals that the trial court made all the necessary
advisements in Crim.R. 11 at the plea hearing, including that Contento would be required
to serve a mandatory prison term for his offenses and that he was ineligible for community
control sanctions. The plea forms signed by Contento in both Case Nos. 2016-CR-35
and 2016-CR-288 also indicate that he was subject to a mandatory prison term; however,
the plea forms incorrectly advised Contento that he was eligible for community control
sanctions.
{¶ 17} “When a defendant on whom a mandatory prison sentence must be
imposed enters a plea of guilty or no contest, the court must, before accepting the plea,
determine the defendant’s understanding that the defendant is subject to a mandatory
sentence and that the mandatory sentence renders the defendant ineligible for probation
or community control sanctions.” State v. Balidbid, 2d Dist. Montgomery No. 24511,
2012-Ohio-1406, ¶ 10, citing Crim.R. 11(C)(2)(a). (Other citations omitted.) “Because
the prospect of community control * * * would be a factor weighing heavily in favor of a
plea, the fact that such is statutorily precluded can affect a defendant’s decision to enter
a guilty plea.” (Citation omitted.) State v. Hendrix, 12th Dist. Butler No. CA2012-12-
265, 2013-Ohio-4978, ¶ 27.
{¶ 18} In State v. Silvers, 181 Ohio App. 3d 26, 2009-Ohio-687, 907 N.E.2d 805
(2d Dist.), we held that the trial court did not substantially comply with Crim.R. 11 under
circumstances where the trial court correctly advised Silvers at the plea hearing that he
faced a mandatory prison term and was not eligible for community control, but the plea
form incorrectly stated that a prison term was not mandatory and that Silvers was eligible
for community control. We found that given the conflicting information between the
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colloquy and the plea form, “Silvers was unable to subjectively understand the implication
of his plea and the rights he was waiving.” Id. at ¶ 13. As a result, we concluded that
“Silvers’s guilty pleas were not knowingly, intelligently, nor voluntarily made.” Id. at ¶ 15.
{¶ 19} The present case, however, is distinguishable from Silvers. While the plea
forms incorrectly indicate that Contento was eligible for community control sanctions, the
forms nevertheless correctly indicate that Contento would be required to serve a
mandatory prison term, which was consistent with what the trial court stated at the plea
hearing. Furthermore, at the plea hearing, Contento specifically indicated that he
understood he was not eligible for community control sanctions:
THE COURT: Okay. I also have to advise you that on each of these
counts, it’s a mandatory term – a sentencing term. Is
that your understanding?
MR. CONTENTO: Yes ma’am.
THE COURT: That means you’re not eligible for Community Control
or Judicial Release or Earned Good Time credit.
MR. CONTENTO: Okay.
THE COURT: Is that your understanding?
MR. CONTENTO: Yes ma’am.
Plea Hearing Trans. (June 23, 2016), p. 11-12.
{¶ 20} Under these circumstances, the trial court, at the very least, partially
complied with Crim.R. 11, which requires a showing of prejudice to vacate a guilty plea.
Contento, however, cannot demonstrate any prejudice arising from the clerical error in
the plea form indicating that he was eligible for community control, as Contento
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specifically stated on the record that he understood he was not eligible for community
control and was advised at the plea hearing and in the plea forms that his prison term
would be mandatory.
{¶ 21} Because the totality of the circumstances indicates that Contento
subjectively understood the rights he was waiving and the implications of his plea,
particularly that a prison term was mandatory for his offenses and that he was ineligible
for community control, we find that the argument that his plea was not knowingly,
intelligently, and voluntarily entered lacks arguable merit for appeal, as there is no basis
for vacating his plea. Accordingly, Contento’s first potential assignment of error is
overruled.
{¶ 22} As a second potential assignment of error, Contento’s appellate counsel
suggests that the trial court erred in sentencing Contento to an aggregate 18-year prison
term. However, as previously noted, the sentence imposed by the trial court was jointly
recommended by the parties.
{¶ 23} R.C. 2953.08(D)(1) provides that “[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.” See also State v. Essinger, 2d Dist. Montgomery No. 26593,
2016-Ohio-4977, ¶ 8 (“A jointly-recommended sentence is not subject to appellate
review”), citing State v. Sergent, 148 Ohio St. 3d 94, 2016-Ohio-2696, 69 N.E.2d 627.
(Other citation omitted.) In other words, “under [R.C. 2953.08](D)(1), if a jointly
recommended sentence imposed by a court is ‘authorized by law,’ then the sentence ‘is
not subject to review.’ ” Sergent at ¶ 15. “A sentence is ‘authorized by law’ and is not
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appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory
sentencing provisions.” State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922
N.E.2d 923, paragraph two of the syllabus.
{¶ 24} In this case, Contento’s jointly-recommended sentence comports with all
mandatory sentencing provisions and was accepted by the trial court. Therefore,
Contento’s sentence is not appealable pursuant to R.C. 2953.08(D)(1). Accordingly,
Contento’s second potential assignment of error challenging his sentence also lacks
arguable merit for appeal and is overruled.
{¶ 25} In addition to considering the potential assignments of error raised by
appellate counsel, we have performed our duty under Anders to conduct an independent
review of the record. Having conducted our independent review, we find no issues with
arguable merit for Contento to advance on appeal. Accordingly, we conclude that
Contento’s appeal is wholly frivolous and affirm the judgment of the trial court.
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FROELICH, J. and HALL, J., concur.
Copies mailed to:
Anthony Kendell
April F. Campbell
Thomas A. Contento
Hon. Jeannine N. Pratt