State v. Goode , 2013 Ohio 2119 ( 2013 )

[Cite as State v. Goode, 2013-Ohio-2119.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25340
v. : T.C. NO. 12CR157
SAMUEL E. GOODE : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of May , 2013.
..........
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the court on the Notice of Appeal of Samuel E. Goode,
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filed August 24, 2012. Mr. Goode was originally charged by indictment with one count of
having a weapon while under disability, a felony of the third degree, in violation of R.C.
2923.13(A)(3), and one count of improper handling of a firearm in a motor vehicle, a felony
of the fourth degree, in violation of R.C. 2923.16(B). Mr. Goode filed a motion to
suppress on April 2, 2012, and an evidentiary hearing was set for June 29, 2012. Prior to
the hearing, the parties informed the trial court that they wished to enter into a plea
agreement. Pursuant to that agreement, Mr. Goode plead guilty to one count of having a
weapon while under disability, a felony of the third degree, in violation of R.C.
2923.13(A)(3). In exchange for the guilty plea, the State agreed to dismiss count two of the
indictment for improper handling of a firearm in a motor vehicle. The trial court sentenced
Mr. Goode to community controlled sanctions for a period not to exceed five years.
{¶ 2} On January 29, 2013, appointed counsel filed an Anders brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that no
arguably meritorious issues exist for appeal. By magistrate’s order of February 1, 2013, we
informed Mr. Goode that his counsel filed an Anders brief and informed him of the
significance of an Anders brief. We invited Mr. Goode to file a pro se brief assigning any
error for our review within sixty days of February 1, 2013. Mr. Goode has yet to file
anything with this court.
{¶ 3} Although appointed counsel raised no meritorious claims on behalf of Mr.
Goode, he identified two potential assignments of error: 1) the trial court erred by accepting
an involuntary plea of guilty; and 2) the trial court erred in amending the indictment. Upon
review, we agree with counsel that the potential assignments of error have no arguable merit.
[Cite as State v. Goode, 2013-Ohio-2119.]
{¶ 4} Although counsel for Mr. Goode commented on the record that the plea
offer took Mr. Goode by surprise and that she thought Mr. Goode was at first reluctant to
accept the plea deal (see Tr., p. 4), the court took considerable time and effort to ensure that
Mr. Goode was fully aware of the plea offer and its consequence, as well as the alternative
available to him to stand on his not guilty plea and proceed to trial on both counts. Id. The
trial court conducted a thorough and complete Crim. R. 11 dialogue with Mr. Goode, and his
plea was ultimately entered in a knowing and voluntary fashion free of any hesitation or
objection.
{¶ 5} The second potential assignment of error stems from the trial court
amending the indictment during the course of the plea hearing. The plea transcript reflects
the prosecutor’s reading of the indictment and Mr. Goode’s acknowledgment and
understanding of the charges against him. During the initial reading of the indictment, the
prosecuting attorney expressed concern as to the inclusion of certain language in count one
of the indictment, whereupon three lines of the indictment were stricken by oral amendment
with the consent of the court and without objection from defense counsel. Count one is a
violation of R.C. 2923.13(A)(3), which states in relevant part, “(A) Unless relieved from
disability * * * no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply: * * * (3) The person is under indictment
for or has been convicted of any felony offense involving the illegal possession, use, sale,
administration, or trafficking in any drug of abuse * * * ”. The deleted language read, “That
within five years of the date the said Defendant was released from imprisonment or from
post release control imposed for a previous conviction in the State of Georgia for a felony
drug abuse offense of the first or second degree.” Tr., p. 18. After this deletion, count one
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in the indictment reads:
The GRAND JURORS of the County of Montgomery, in the name,
and by the authority of the State of Ohio, upon their oaths do find and present
that: SAMUEL E. GOODE, on or about DECEMBER 11, 2011 in the
County of Montgomery, aforesaid, and State of Ohio, did knowingly acquire,
have, carry or use any firearm, to-wit: HANDGUN, said defendant having
been previously convicted in the State of Georgia of any offense involving the
illegal possession, use, sale, administration, distribution or trafficking in any
drug of abuse, to-wit: SIMPLE POSSESSION (COCAINE), on FEBRUARY
8, 1993, in the case of State of Georgia versus SAMUEL E. GOODE, being
Case Number Z 49524, in the FULTON COUNTY, GEORGIA SUPERIOR
COURT; contrary to the form of the statute (in violation of Section
2923.13(A)(3) and (B) of the Ohio Revised Code) in such case made and
provided, and against the peace and dignity of the State of Ohio.
{¶ 6} Crim. R. 7 allows the court to amend the indictment with respect to any
defect or imperfection, provided there is no change in the identity or name of the crime
charged. Here, the court granted a motion to remove the aforementioned superfluous
language from the indictment, which made no change to the name or identity of the crime
charged.
{¶ 7} In the performance of our duty, under Anders v. California, to conduct an
independent review of the record, we have found no potential assignments of error having
arguable merit. We therefore conclude that this appeal is wholly frivolous and the judgment
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of the trial court is Affirmed.
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FAIN, P.J. and HALL, J., concur.
Copies mailed to:
Carley J. Ingram
Lucas W. Wilder
Samuel E. Goode
Hon. Frances E. McGee