State v. Thompson , 2015 Ohio 4334 ( 2015 )

[Cite as State v. Thompson, 2015-Ohio-4334.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15 COA 8MEGAN N. THOMPSON
Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 14 CRI 163
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 19, 2015
APPEARANCES:
For Appellee For Appellant
GARY BISHOP MATTHEW J. MALONE
ASSISTANT PROSECUTOR LAW OFFICES of MATTHEW J. MALONE
110 Cottage Street 10 East Main Street
Ashland, Ohio 44805 Ashland, Ohio 44805
Ashland County, Case No. 15 COA 8 2
Wise, P. J.
{¶1}. Appellant, Megan N. Thompson was indicted on seven counts: (1)
Complicity (Trafficking in Marihuana), a felony of the fourth degree; (2) Possession of
Marihuana, a felony of the fifth degree; (3) Complicity (Possessing Criminal Tools), a
felony of the fifth degree; (4) Possessing Drug Abuse Instruments, a misdemeanor of
the second degree; (5) Illegal Use or Possession of Drug Paraphernalia, a
misdemeanor of the fourth degree; (6) Illegal Use of Possession of Marihuana Drug
Paraphernalia, a minor misdemeanor; and (7) Endangering Children, a misdemeanor
of the first degree.
{¶2}. Pursuant to a plea agreement, Appellant plead guilty to counts one, four
and seven. The state agreed to dismiss the remainder of the counts. Appellant
received a sentence of 120 days of local incarceration on the Complicity (Trafficking in
Marihuana) count, 30 days local incarceration on the Possessing Criminal Abuse
Instruments, and 180 days of local incarceration on the Endangering Children count.
All sentences were ordered served consecutive to one another for a total sentence of
330 days of jail. Further, Appellant was placed on supervised probation for a period of
three years and fined $750.00.
{¶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 has not raised any additional assignments of error pro
se.
Ashland County, Case No. 15 COA 8 3
{¶4}. 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.
{¶5}. Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738.
POTENTIAL ASSIGNMENTS OF ERROR
{¶6}. “I. WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE
11 BEFORE ACCEPTING APPELLANT’S GUILTY PLEA.
{¶7}. “II. WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON
APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR
AN ABUSE OF ITS DISCRETION.”
{¶8}. We now will address the merits of Appellant’s potential Assignments of
Error.
Ashland County, Case No. 15 COA 8 4
I.
{¶9}. In her first potential Assignment of Error, Appellant suggests the trial court
did not comply with Crim.R. 11 in accepting Appellant’s plea.
{¶10}. Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally, to convey certain information to such defendant, and
prohibits acceptance of a guilty plea or no contest plea without performing these duties.
State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶ 10.
{¶11}. Crim.R. 11(C)(2)(a) states the trial court must determine: *** 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.
{¶12}. “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:
{¶13}. 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
Ashland County, Case No. 15 COA 8 5
unless the defendant thereby suffered prejudice.” State v. Alexander, 2012-Ohio-4843appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.
{¶14}. A review of the plea hearing reveals the trial court advised Appellant of her
constitutional rights, the potential penalties for each 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.
{¶15}. Appellant’s first Assignment of Error is overruled.
II.
{¶16}. In her second potential Assignment of Error, Appellant challenges the
sentence imposed by the trial court.
{¶17}. 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.
{¶18}. We find the sentences imposed were not clearly and convincingly contrary
to law. The sentences in this case were imposed within the statutory range provided in
R.C. 2929.14.
{¶19}. Likewise, having reviewed the sentence, the presentence investigation
report, and the sentencing factors found in R.C. 2929.12, we do not find the trial court
abused its discretion in imposing the sentence in this case.
Ashland County, Case No. 15 COA 8 6
{¶20}. Appellant’s second proposed Assignment of Error is overruled.
{¶21}. For these reasons, 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: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 0909