State v. Smith , 2015 Ohio 4809 ( 2015 )

[Cite as State v. Smith, 2015-Ohio-4809.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 14 MA 65
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
SANJUAN SMITH )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 11 CR 647
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Donna McCollum
3685 Stutz Dr., Suite 100
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: November 17, 2015
[Cite as State v. Smith, 2015-Ohio-4809.]
WAITE, J.
{¶1} On August 30, 3012, Appellant Sanjuan Smith was sentenced in the
Mahoning County Court of Common Pleas following a Crim.R. 11 guilty plea
agreement on attempted rape, kidnapping, and felonious assault. Appellant was
sentenced to three prisons terms of six, two and two years, to be served
consecutively, for a total prison term of ten years. He appealed the sentence, and
was partially successful on appeal. The case was remanded for resentencing so that
the trial court could make the proper findings regarding consecutive sentences. State
v. Smith, 7th Dist. No. 12 MA 168, 2014-Ohio-1398 (Smith I). At the resentencing
hearing on May 2, 2014, Appellant asked to withdraw his plea. The court denied the
request because the case had already been before the court of appeals and was
remanded only for resentencing regarding the consecutive nature of his sentences.
The trial court concluded that it did not have authority to consider the oral motion to
withdraw the plea. The trial court then reimposed the ten-year sentence, making the
appropriate findings. This appeal followed.
{¶2} Appellant's counsel has filed a no merit brief and a motion to withdraw
pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 N.Ed.2d 419 (7th
Dist.1970) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967). The only possible issue raised is whether the trial court correctly ruled on
Appellant’s oral motion to withdraw his plea.
{¶3} “ ‘It is well settled that an attorney appointed to represent an indigent
criminal defendant on his or her first appeal as of right may seek permission to
withdraw upon a showing that the appellant's claims have no merit. To support such
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a request, appellate counsel must undertake a conscientious examination of the case
and accompany his or her request for withdrawal with a brief referring to anything in
the record that might arguably support the appeal. The reviewing court must then
decide, after a full examination of the proceedings, whether the case is wholly
frivolous.’ ” (Citations omitted.) State v. Odorizzi, 126 Ohio App.3d 512, 515, 710
N.E.2d 1142 (7th Dist.1998).
{¶4} In Toney, we set forth the procedure to be used when counsel of record
determines that an indigent's appeal is frivolous:
3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is
frivolous and that there is no assignment of error which could be
arguably supported on appeal, he should so advise the appointing court
by brief and request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
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6. Where the Court of Appeals makes such an examination and
concludes that the appeal is wholly frivolous, the motion of an indigent
appellant for the appointment of new counsel for the purposes of appeal
should be denied.
7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as
counsel of record should be allowed, and the judgment of the trial court
should be affirmed.
Toney at syllabus.
{¶5} The only issue discussed by counsel relates to an oral motion to
withdraw a plea. Counsel questions whether such a motion can be raised after the
direct appeal has affirmed the conviction, but there is a limited remand to the trial
court solely for resentencing due to an error in imposing consecutive sentences
under R.C. 2929.14(C). A motion to withdraw a plea cannot be sustained by the trial
court after the case has been appealed and the conviction affirmed. State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶61; State ex rel. Special Prosecutors
v. Judges, 55 Ohio St.2d 94, 97-98, 378 N.E.2d 162 (1978); State v. Robertson, 9th
Dist. No. 12CA0094-M, 2013-Ohio-4556, ¶8-9; State v. Parks, 7th Dist. No. 08 CA
857, 2009-Ohio-4817, ¶8. Even if the appeal deals only with sentencing matters and
the conviction itself is not directly challenged, all matters concerning the conviction
(including the plea) that could have been raised on appeal become res judicata once
the appeal has concluded. State ex rel. Special Prosecutors at 97. If the case is
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reviewed and partially remanded for some aspect of resentencing, the appellate court
has nevertheless affirmed the underlying conviction and the lower court no longer
has jurisdiction to reconsider matters dealing with that conviction, such as whether
the plea should be vacated. State v. Triplett, 4th Dist. No. 11CA24, 2012-Ohio-4529;
State ex rel. Prosecutors at 97-98. The trial court in this case correctly interpreted
the law regarding the scope of the remand and its lack of authority to grant a Crim.R.
32.1 motion to withdraw a plea, and any challenge to the trial court's determination
would be frivolous.
{¶6} Counsel has alleged that there are no other appealable issues, and the
record confirms that any possible issues would be frivolous. As a result of the earlier
appeal, the case was remanded solely for resentencing due to an error regarding
consecutive sentences. Smith I at ¶24. The resentencing occurred and the ten-year
prison term was reimposed. The consecutive sentencing error has been corrected, in
that the court made the three findings required by R.C. 2929.14(C)(4): (1) that
consecutive sentences were needed to protect the public from future crime; (2) that
consecutive sentences were not disproportionate to the seriousness of the offender's
conduct and to the danger the offender posed to the public; and (3) that two of the
offenses were committed as part of one or more courses of conduct, and the harm
caused by two or more of these offenses was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses of
conduct adequately reflects the seriousness of the offender's conduct. The findings
were made both at the sentencing hearing and in the May 6, 2014, resentencing
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judgment entry, as required by State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, syllabus. Because there are no non-frivolous issues for appeal, counsel's
motion to withdraw is granted the judgment of the trial court is affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.