State v. Mamone , 2023 Ohio 1167 ( 2023 )

[Cite as State v. Mamone, 2023-Ohio-1167.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Andrew J. King, J.
-vs-
Case No. 22 CAC 06 0042
JOHN MAMONE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 22 CRB 00209
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 7, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMELIA BEAN-DeFLUMER TODD A. WORKMAN
CITY PROSECUTOR WORKMAN LAW FIRM
70 North Union Street P. O. Box 687
Delaware, Ohio 43015 Delaware, Ohio 43015
Delaware County, Case No. 22 CAC 06 0042 2
Wise, J.
{¶1} Defendant-Appellant John Mamone appeals his conviction and sentence on
one count of aggravated menacing following a jury trial in the Delaware County Municipal
Court.
Facts and Procedural History
{¶2} On March 4, 2022, Appellant John Mamone was indicted on one count of
Domestic Violence, in violation of R.C. §2919.25(C), a fourth-degree misdemeanor, and
one count of Aggravated Menacing, in violation of R.C. §2903.21, a first-degree
misdemeanor.
{¶3} The charges arise from an incident which occurred on February 1, 2022,
when Appellant sent his brother-in-law Michael, a message stating:
Tell Stephanie I said fuck you cunt. As for everyone, stay fucking
tuned because I about to eulogize all those mother fucking family members.
If any of them see me, they should drop everything and run for their fucking
lives. Notice the nuance. If I don’t see them, they are safe. If they fuck with
me more, it’s trouble but they all earned their public eulogizing. You can
warn them, but I have many accounts; they can’t keep it off their walls.
{¶4} On April 27, 2022, Appellant entered a not guilty plea to both counts with no
counsel present.
{¶5} On April 29, 2022, an attorney was appointed to represent Appellant.
{¶6} On May 19, 2022, a jury trial commenced in this matter. Prior to opening
statements, the state of Ohio dismissed the domestic violence charge.
Delaware County, Case No. 22 CAC 06 0042 3
{¶7} At trial, the jury heard testimony from Appellant’s half-sister Stephanie
Mamone-Kolcun and her husband Michael Kolcun, as well as Deputy Andrew Ritter from
the Delaware County Sheriff’s Office. The jury also heard testimony from Appellant who
testified in his own defense.
{¶8} At the conclusion of the trial, the jury found Appellant guilty on the sole count
of aggravated menacing.
{¶9} The trial court sentenced Appellant to 180 days in jail, with 120 days
suspended, a $200.00 fine, and two (2) years of intensive supervision with community
control.
{¶10} Appellant was also ordered to continue with OSU mental health, comply
with a post-conviction no-contact order, and to have GPS monitoring in place prior to
release from jail. GPS was ordered to be paid by the court.
{¶11} Appellant now appeals.
Assignments of Error
{¶12} Counsel for Appellant Mamone has filed a Motion to Withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)
asserting three potential assignments of error:
{¶13} “I. THE APPELLANT’S RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL GUARANTEED UNDER THE SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION WAS NOT VIOLATED BY TRIAL COUNSEL BASED UPON
THE RECORD BEFORE THIS COURT.
Delaware County, Case No. 22 CAC 06 0042 4
{¶14} “II. APPELLANT’S PLEA OF GUILTY WAS VOLUNTARILY GIVEN BASED
UPON THE RECORD BEFORE THIS COURT.
{¶15} “III. APPELLANT’S AGGREGATED SENTENCE IS NOT
DISPROPORTIONATE TO THE CRIMES COMMITTED.
Law and Analysis
{¶16} 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. 386 U.S. 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.{¶17} By Judgment Entry filed October 25, 2022, this Court noted that counsel
had filed an Anders brief and had indicated to the Court that he had served Appellant with
the brief. Accordingly, this Court notified Appellant via Certified U.S. Mail that he “may
file a pro se brief in support of the appeal within 60 days from the date of this entry.”
{¶18} Appellant has not filed a pro se brief
Delaware County, Case No. 22 CAC 06 0042 5
{¶19} We find Appellant’s counsel in this matter has adequately followed the
procedures required by Anders.
{¶20} As Appellant did not submit a pro se brief and the state of Ohio did not file
a response brief, this Court will review the proposed potential assignments of error and
will undertake, pursuant to Anders, to fully examine the proceedings to decide if this
appeal is indeed wholly frivolous.
I.
Ineffective Assistance of counsel
{¶21} Was Appellant denied the effective assistance of counsel?
{¶22} A claim for ineffective assistance of counsel requires a two-prong analysis.
The first prong entails a review regarding whether counsel's performance fell below an
objective standard of reasonable representation involving a substantial violation of any of
defense counsel's essential duties to Appellant. The second prong entails a review
regarding whether Appellant was prejudiced by counsel's ineffectiveness. Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley
(1989), 42 Ohio St.3d 136, 538 N.E.2d 373. "Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel." State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (citing Lockhart
v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180). The United States
Supreme Court and the Ohio Supreme Court have both held that a reviewing court "need
not determine whether counsel's performance was deficient before examining the
Delaware County, Case No. 22 CAC 06 0042 6
prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley, 42
Ohio St.3d at 143 (citing Strickland, 466 U.S. at 697).
{¶23} Appellant herein claims that his trial counsel failed to properly inform him of
the effects of pleading guilty as opposed to going to trial, and the possible sentences that
could result from either course of action.
{¶24} Upon review of the record, we find that trial counsel stated on the record
that he informed Appellant that the court was likely to sentence him to jail time if he
proceeded to trial. (T. at 190). Appellant raised no concerns or objections to the trial court.
{¶25} Upon review, we do not find that Appellant’s counsel was ineffective.
II.
Guilty Plea
{¶26} Was Appellant’s guilty plea voluntarily given?
{¶27} Counsel herein argues that Appellant was not properly instructed by the trial
court as to the possibility of incarceration at the time of the change of plea in this matter.
{¶28} Upon review, we find this argument misplaced as Appellant herein did not
enter a guilty plea but rather proceeded to trial by jury. As such, we find said assignment
and counsel’s argument not well-taken and overrule same.
III.
Sentencing
{¶29} Did the trial court err in sentencing?
{¶30} More specifically, was Appellant’s sentence commensurate with his
conduct?
Delaware County, Case No. 22 CAC 06 0042 7
{¶31} R.C. §2929.22, the misdemeanor sentencing statute, lists factors a trial
court must consider in determining the appropriate sentence to impose:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of persistent
criminal activity and that the offender's character and condition reveal a
substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender's history, character, and
condition reveal a substantial risk that the offender will be a danger to others
and that the offender's conduct has been characterized by a pattern of
repetitive, compulsive, or aggressive behavior with heedless indifference to
the consequences;
(d) Whether the victim's youth, age, disability, or other factors made
the victim particularly vulnerable to the offense or made the impact of the
offense more serious;
(e) Whether the offender is likely to commit future crimes in general,
in addition to the circumstances described in divisions (B)(1)(b) and (c) of
this section.
R.C. §2929.22(B)(1).
{¶32} Misdemeanor sentences are reviewed for an abuse of discretion. R.C.
§2929.22; State v. Frazier, 158 Ohio App.3d 407, 2004–Ohio–4506, 815 N.E.2d 1155, at
¶ 15. An abuse of discretion means more than an error of judgment; it implies that the
Delaware County, Case No. 22 CAC 06 0042 8
trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Adams
(1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.
{¶33} Appellant herein was charged with Aggravated Menacing, in violation of
R.C. §2903.21, a first degree misdemeanor. A first-degree misdemeanor is punishable
by a sentence of up to 180 days in jail and a $1,000.00 fine. Here, the trial court imposed
a sentence of 180 days in jail, with 120 days suspended, a $200 fine, and two (2) years
of community control. As such, the trial court's sentence was well within the statutory
range and is not contrary to law.
{¶34} Additionally, prior to imposing sentence, the trial court considered the nature
of the crime, the seriousness of the offense, the victims’ testimony at trial and their
statements. The trial court also took into consideration Appellant's lack of a criminal
history.
{¶35} Prior to imposing sentence, the trial court stated on the record:
So I have concerns. So as far as an aggravated menacing goes, I
will tell you that this is perhaps one of the worst forms of an aggravated
menacing. You’re threatening to kill people, that’s as bad as it gets in your
putting it in writing and your sending it out. That’s as bad as it gets
You don’t have a record. I do give way to that, but I give weight to
what I saw here in the courtroom over the course of this day, that there were
two people who were afraid of you who should not have been afraid of you.
Your half-sister and her husband had to come to court and testify that they
were afraid, that they were on alert; they’re watching where they’re going
because they don’t quite frankly trust that nothing’s going to happen
Delaware County, Case No. 22 CAC 06 0042 9
So I’m going to order the following. I do consider the purposes – –
the primary purposes of misdemeanor sentencing. I do consider the factors
outlined in the statute. I will – – I accepted the verdict. You have been found
guilty of aggravated menacing. I will order the following, a $200 fine and
court costs. I will give you 90 days to pay that and the ability to work it off
with community service.
I am ordering all 180 days in jail, 120 of them will be suspended. You
will serve 60 days jail with credit for two and you will go forth with.
Now when you get out of jail, you will be on a period of intensive
supervision with the community control office for two years. You must report
to the community control office once you’re out of jail. I do want you to do a
mental health evaluation and I hope we can start that while you are in jail.
If you’ve done one recently with your doctor, sign a release and we’ll take a
look at it.
***
(T. at 194-196).
{¶36} Upon review of the trial transcript, we find the sentence imposed by the trial
court was supported by the record and was not an abuse of discretion.
Delaware County, Case No. 22 CAC 06 0042 10
Conclusion
{¶37} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal. We
therefore find the appeal to be wholly frivolous under Anders, grant counsel's request to
withdraw, and affirm the judgment of the Delaware County Municipal Court.
By: Wise, J.
Gwin, P. J., and
King, J., concur.
JWW/kw 0404