State v. Cody , 2016 Ohio 7785 ( 2016 )

[Cite as State v. Cody, 2016-Ohio-7785.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104315
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MATTHEW T. CODY
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-593574-J, CR-15-594470-A, CR-15-594674-A,
and CR-15-596477-A
BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 17, 2016
ATTORNEY FOR APPELLANT
Steve W. Canfil
55 Public Square
Suite 2100
Cleveland, Ohio 44113
Also listed:
Matthew Cody
Inmate No. 682-034
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEY FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Matthew T. Cody (“Cody”), appeals from his
convictions and sentence following a guilty plea. After an examination of the case,
Cody’s appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1997), and now seeks leave to withdraw as counsel. Cody
has not filed a brief setting forth any assignments of error. After a thorough review of the
record, we affirm the trial court’s judgment and grant counsel’s request to withdraw.
I. Procedural History
{¶2} In Cuyahoga C.P. No. CR-15-593574-J, Cody pleaded guilty to drug
trafficking in violation of R.C. 2925.03(A)(2), a felony of the second degree , with a
one-year firearm specification; tampering with records in violation of R.C.
2913.42(A)(1), a felony of the third degree; possession of criminal tools in violation of
R.C. 2923.24, a felony of the fifth degree; and two counts of drug trafficking in violation
of R.C. 2925.03(A)(1), felonies of the fourth degree.
{¶3} In Cuyahoga C.P. No. CR-15-594470-A, Cody pleaded guilty to burglary in
violation of R.C. 2911.12(A)(3), a felony of the third degree; and vandalism in violation
of R.C. 2909.05, a felony of the fifth degree.
{¶4} In Cuyahoga C.P. No. CR-15-594674-A, Cody pleaded guilty to having
weapons while under disability in violation of R.C. 2923.13(A)(1), a felony of the third
degree; escape in violation of R.C. 2921.34(A)(1), a felony of the third degree; improper
handling of a firearm in a motor vehicle in violation of R.C. 2923.16, a felony of the
fourth degree; identity fraud in violation of R.C. 2913.49(B)(2), a felony of the fifth
degree; and drug possession in violation of R.C. 2925.11, a felony of the fifth degree.
{¶5} In Cuyahoga C.P. No. CR-15-596477-A, Cody pleaded guilty to two counts
of drug trafficking in violation of R.C. 2925.03(A)(1) and (2), felonies of the fourth
degree; and a single count of drug possession in violation of R.C. 2925.11, a felony of the
fifth degree.
{¶6} After fully complying with Crim.R. 11 and advising Cody of his statutory and
constitutional rights, the trial court accepted Cody’s guilty pleas in each case, finding that
they were knowingly, intelligently, and voluntarily made.
{¶7} In March 2016, the trial court held a joint sentencing hearing. In Case No.
CR-15-593574-J, the trial court sentenced Cody to three years in prison on the
second-degree felony drug trafficking charge, to run consecutive to the one-year firearm
specification. Cody was further sentenced to concurrent prison terms of 18 months each
on the tampering with records and remaining drug trafficking convictions, and 12 months
on the possession of criminal tools conviction.
{¶8} In Case No. CR-15-594470-A, Cody was sentenced to 18 months on the
burglary conviction and 12 months on the vandalism conviction, to be served
concurrently.
{¶9} In Case No. CR-15-594674-A, Cody was sentenced to 18 months each on the
weapons, escape, and improper handling of a firearm convictions. Cody was also
sentenced to 12 months each on the identity fraud and drug possession convictions. The
trial court ordered that the sentences be served concurrently.
{¶10} In Case No. CR-15-596477-A, Cody was sentenced to 18 months for each
drug trafficking conviction, and 12 months on the drug possession conviction, to be
served concurrently.
{¶11} The prison terms imposed in each case were ordered to run concurrently to
each other, for a total four-year term of imprisonment.
{¶12} Following his convictions, the trial court appointed counsel to represent
Cody on appeal. Based on the belief that no prejudicial error occurred below and that
any grounds for appeal would be frivolous, Cody’s counsel filed a motion to withdraw
pursuant to Anders.
II. Law and Analysis
{¶13} Anders, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th
Dist.1978), outline the procedure counsel must follow to withdraw as counsel due to the
lack of any meritorious grounds for appeal. In Anders, the United States Supreme Court
held that if counsel thoroughly studies the case and conscientiously concludes that an
appeal is frivolous, he may advise the court of that fact and request permission to
withdraw from the case. Anders at 744. However, counsel’s request to withdraw must
“be accompanied by a brief referring to anything in the record that might arguably support
the [a]ppeal.” Id. Counsel must also furnish a copy of the brief to his client with
sufficient time to allow the appellant to file his own brief, pro se. Id.{¶14} Once these requirements have been satisfied, the appellate court must
complete an independent examination of the trial court proceedings to decide whether the
appeal is “wholly frivolous.” Id. If the appellate court determines the appeal is
frivolous, it may grant counsel’s request to withdraw and address the merits of the case
without affording the appellant the assistance of counsel. Duncan, 57 Ohio App.2d 93,
385 N.E.2d 323 (8th Dist.1978); State v. Kendall, 4th Dist. Ross No. 06CA2919,
2007-Ohio-2743, ¶ 7. If, however, the court finds the existence of meritorious issues, it
must afford the appellant assistance of counsel before deciding the merits of the case. Id.{¶15} Counsel presents several potential issues for review pursuant to Anders.
First, counsel advises that because Cody was convicted by virtue of his guilty pleas, the
plea hearing should be reviewed for any errors. A defendant’s guilty plea must be made
knowingly, intelligently, and voluntarily, and “[f]ailure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
To ensure that a plea is entered knowingly, intelligently, and voluntarily, Crim.R. 11(C)
requires the trial judge to determine whether the criminal defendant is fully informed of
his or her rights, both constitutional and nonconstitutional. The court must also confirm
that the defendant understands the consequences of his plea before accepting a guilty
plea. Id.{¶16} Counsel asserts that the trial court complied with the requirements of
Crim.R. 11(C) and that Cody knowingly, intelligently, and voluntarily entered his guilty
pleas. We have conducted an independent examination of the record and also find that
the trial court strictly complied with the dictates of Crim.R. 11(C) in accepting Cody’s
plea. The trial court advised Cody of his constitutional rights and the potential penalties
he could receive, including postrelease control. In addition, the record reflects that the
trial court complied with the statutory forfeiture provisions set forth in R.C. Chapter
2981.01 et seq. and sufficiently advised Cody of the property he would be forfeiting as
part of each plea. Therefore, any argument that the pleas were not entered knowingly,
intelligently, and voluntarily would be frivolous.
{¶17} We further find no merit to counsel’s suggestion that the trial court
potentially erred by permitting Cody to waive a re-reading of certain Crim.R. 11 rights for
each case during the joint plea hearing. The record reflects that after fully informing
Cody of his constitutional and nonconstitutional rights pursuant to Crim.R. 11 and
accepting his pleas in Case Nos. CR-15-596477-A and CR-15-594470-A, the trial court
proceeded to Cody’s remaining cases. At that time, the trial court asked Cody if it
needed to re-read the “lead-in questions about your age, how far you went to school, all of
the rights that I read to you, up to discussing the nature of the charges in this case.”
Cody responded, “No, Your Honor,” and the trial court proceeded to explain the nature of
the charges and the effect of Cody’s guilty pleas in Case Nos. CR-15-593574-J and
CR-15-594674-A. Under these circumstances, we are unable to conclude that the trial
court erred by failing to inform Cody of his constitutional rights in a separate colloquy for
each case. See State v. Galloway, 11th Dist. Lake No. 2000-L-080, 2002-Ohio-4359.
As stated, the trial court thoroughly informed Cody of his constitutional and
nonconstitutional rights at the onset of the plea hearing, and Cody indicated that he
understood that those rights applied to each case. Accordingly, we find Cody
subjectively understood the rights he was waiving by entering guilty pleas in Case Nos.
CR-15-593574-J and CR-15-594674-A.
{¶18} Next, counsel advises us that any other potential error that could have
occurred in the proceedings would have occurred during sentencing, but there was no
error. We agree.
{¶19} After careful review, we find the trial court properly sentenced Cody within
the applicable statutory guidelines for each felony conviction. The record reflects that
the trial court considered the purposes and principles of sentencing set forth in R.C.
2929.11 and the sentencing factors set forth in R.C. 2929.12. Indeed, the court stated in
the sentencing entries in both cases that it considered “all required factors of the law.”
This court has held that a trial court’s statement in the sentencing entry that it considered
the required statutory factors sufficient to fulfill the trial court’s obligations under R.C.
2929.11 and 2929.12, even if the court did not explicitly mention the factors at the
sentencing hearing. State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶
9.
{¶20} In addition, the sentencing transcript demonstrates that the trial court
properly advised Cody of his mandatory postrelease control obligations, as well as the
consequences for failing to comply with the requirements of postrelease control.
Moreover, as noted by counsel, the trial court did not error in imposing community work
service in lieu of court costs and fees. See State v. Coe, 8th Dist. Cuyahoga No. 95068
2011-Ohio-1561, ¶ 8. We therefore find no errors with respect to Cody’s sentence.
{¶21} Lastly, we agree with counsel’s position that there is nothing in the record to
suggest that the trial court violated the Ohio Supreme Court’s decision in State v.
Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, which holds that a trial
court may not impose a no-contact order while sentencing a defendant to a prison term.
In this case, it is evident that while the prosecutor stated at the plea hearing that Cody
“agreed to have no contact with the victim” in Case No. 15-CR-594470-A, the trial court
did not issue a no-contact order at the time of sentencing and did not place a no-contact
order in the sentencing journal entry. Accordingly, an appeal on this aspect of Cody’s
sentence would be frivolous.
III. Conclusion
{¶22} We therefore conclude that Cody’s appeal is wholly frivolous pursuant to
Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. There is nothing in the record that
might arguably support an appeal. Counsel’s request to withdraw is granted, and the
appeal is dismissed.
It is ordered that appellee recover of appellant its costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR