State v. Harris , 2023 Ohio 729 ( 2023 )

[Cite as State v. Harris, 2023-Ohio-729.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-47
:
v. : Trial Court Case Nos. 21-CR-0146; 21-
: CR-0822
CHASE EMORY HARRIS :
: (Criminal Appeal from Common Pleas
Appellant : Court)
:
...........
OPINION
Rendered on March 10, 2023
...........
IAN A. RICHARDSON, Attorney for Appellee
GLENDA A. SMITH, Attorney for Appellant
.............
TUCKER, J.
{¶ 1} Appellant Chase Emory Harris pleaded guilty to two felony offenses under
separate indictments, and the trial court imposed an agreed-upon sentence. Appointed
appellate counsel has filed a brief under the authority of Anders v. California, 289 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that she could not find any arguably
-2-
meritorious issues for appellate review. We agree with counsel’s assessment. As such,
the trial court’s judgments will be affirmed.
Facts and Procedural History
{¶ 2} Harris had four pending indictments. But, as part of a plea agreement, two
indictments were dismissed, leaving Clark C.P. Nos. 21-CR-146 and 21-CR-822. In Case
No. 21-CR-146, Harris pleaded guilty to improper handling of a firearm in a motor vehicle,
a fourth-degree felony, and in Case No. 21-CR-822, he pleaded guilty to having weapons
under disability, a third-degree felony. The remaining counts in both indictments were
dismissed. Finally, the parties entered into a joint sentencing recommendation under
which it was recommended that Harris be sentenced to an 18-month prison term in Case
No. 21-CR-146, to a 36-month prison term in Case No. 21-CR-822, and that the
sentences be served consecutively to each other and consecutively to a prison term
Harris was already serving.
{¶ 3} Upon acceptance of Harris’s guilty pleas, the trial court imposed the
recommended sentence. This appeal followed.
{¶ 4} As noted, Harris’s appointed appellate counsel has filed an Anders brief,
which includes counsel’s request to withdraw as Harris’s attorney. Harris was informed of
his right to file a pro se brief, but such a brief has not been filed.
Anders Standard
{¶ 5} Upon the filing of an Anders brief, an appellate court has a duty to determine,
-3-
“after a full examination of the proceedings,” whether the appeal is “wholly frivolous.”
Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75,
80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based upon a
conclusion that the State has a strong responsive argument. State v. Pullen, 2d Dist.
Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one about
which, “on the facts and law involved, no responsible contention can be made that offers
a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-
3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders
brief and appoint new counsel to represent the appellant.
Anders Analysis
{¶ 6} Consistent with her duties under Anders, counsel has raised as a potential
assignment of error the trial court’s “fail[ure] to comply with Crim.R. 11 [when] accepting
[Harris’s] plea.”
{¶ 7} On the issue of gauging whether a guilty plea has been entered in a knowing,
intelligent, and voluntary fashion, we have stated the following:
Due process requires that a defendant’s guilty plea be knowing,
intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969); see also State v. Inskeep, 2d Dist. Champaign No.
2016-CA-2, 2016-Ohio-7098, ¶ 12. A trial court’s compliance with Crim.R.
11(C) ensures that a plea comports with due process. State v. McElroy,
2d Dist. Montgomery No. 28974, 2021-Ohio-4026, ¶ 14; State v. Russell,
-4-
2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6.
Crim.R. 11(C)(2)(c) requires the trial court to inform the defendant of
the constitutional rights he is waiving by entering a plea. These rights are
the right to a jury trial, the right to confront witnesses, the right to compulsory
process, the right against self-incrimination, and the right to require the
State to establish guilt beyond a reasonable doubt. Since constitutional
rights are involved, strict compliance with this portion of the rule is required.
State v. Jones, 2d Dist. Greene No. 2019-CA-811, 2020-Ohio-4667, ¶ 10,
citing State v. Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211,
¶ 5. A failure of strict compliance requires a finding that the plea is not
consistent with due process; prejudice, under this circumstance, is
presumed, and the plea must be invalidated. Id., citing State v. Miller, 159
Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 16, State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31-32.
Crim.R. 11(C)(2)(a) requires the trial court to determine that the plea
is being made voluntarily, that the defendant understands the nature of the
charge, the maximum penalty involved, and, if applicable, that the
defendant is not eligible to be sentenced to a term of community control
sanctions. Crim.R. 11(C)(2)(b) requires the trial court to determine that the
defendant understands the effect of the plea and that the trial court, upon
acceptance of the plea, may proceed to sentencing. Since Crim.R.
11(C)(2)(a) and (b) do not implicate constitutional rights, a trial court’s partial
-5-
compliance with these portions of the rule, as opposed to strict compliance,
does not necessarily require that the plea be vacated. Instead, the
defendant must establish that the failure of strict compliance has caused
prejudice. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164
N.E.3d 286, ¶ 16. In this context, prejudice is measured by whether the
defendant would have entered the plea if there had been full compliance
with, as applicable, Crim.R. 11(C)(2)(a) or (b). Id. at ¶ 23. But, a trial
court’s complete failure to comply with either Crim.R. 11(C)(2)(a) or (b)
eliminates the defendant’s burden to establish prejudice.
State v. Perdue, 2022-Ohio-722, 185 N.E.3d 683, ¶ 10-12 (2d Dist.).
{¶ 8} Based upon our independent examination of the plea colloquy, it would be
frivolous to assert that the trial court did not strictly comply with all Crim.R. 11
requirements. And the record does not otherwise suggest that Harris’s plea was less than
knowing, intelligent, and voluntary. As such, it would be frivolous to argue that Harris’s
plea violated due process.
{¶ 9} We also note that under R.C. 2953.08(D)(1) a sentence is not subject to
appellate review “ * * * if the sentence is authorized by law, has been recommended jointly
by the defendant and the prosecution, and [the recommended sentence] is imposed by
[the] sentencing judge. * * * If all three conditions are met, the defendant may not appeal
the sentence.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
¶ 15-16. Since the three conditions are met in this case, any argument attacking Harris’s
sentence would lack any appellate merit.
-6-
{¶ 10} We have, in addition, reviewed the entire record. This review has not
revealed any issue with potential appellate merit.
Conclusion
{¶ 11} For the stated reasons, counsel is granted leave to withdraw as Harris’s
attorney, and the judgments of the Clark County Common Pleas Court are affirmed.
.............
WELBAUM, P.J. and LEWIS, J., concur.