State v. Anderson , 2016 Ohio 3323 ( 2016 )

[Cite as State v. Anderson, 2016-Ohio-3323.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103490
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
AARON A. ANDERSON
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-14-589633-A and CR-14-590789-A
BEFORE: Stewart, P.J., Boyle, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 9, 2016
ATTORNEY FOR APPELLANT
Edward F. Borkowski, Jr.
P.O. Box 609151
Cleveland, OH 44109
Also Listed:
Aaron A. Anderson, pro se
Inmate No. 673134
Marion Correctional Institution
940 Marion-Williamsport Road
Mansfield, OH 43302
ATTORNEY FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Aaron A. Anderson pleaded guilty in two cases: in
Cuyahoga C.P. No. CR-14-589633-A, he pleaded guilty to failing to verify a current
address; in Cuyahoga C.P. No. CR-14-590789-A, he pleaded guilty to robbery. The
court ordered Anderson to serve 18 months in prison on the failure to verify count and a
prison term of eight years on the robbery count. The sentences are to be served
concurrently. Appellate counsel seeks permission to withdraw from the case pursuant to
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), because
appellate counsel believes that Anderson has no nonfrivolous issues to raise on appeal.
We offered Anderson the opportunity to file a merit brief, but he did not do so.
Consistent with Anders and Loc.App.R. 16(C) of the Eighth District Court of Appeals,
counsel filed a no-merit brief in conjunction with his motion to withdraw as counsel.
The no-merit brief considered four possible issues that could be raised on appeal and
explained why it would be frivolous for counsel to raise those issues. We examine those
arguments in light of the record and legal precedent. State v. Taylor, 8th Dist. Cuyahoga
No. 101368, 2015-Ohio-420, ¶ 20.
{¶2} At the heart of any motion to withdraw as appellate counsel on grounds that
there are no nonfrivolous issues to be raised on appeal is the distinction between a losing
argument and an argument that is frivolous. Prof.Cond.R. 3.1. states that “[a] lawyer
shall not bring or defend a proceeding, or assert or controvert an issue in a proceeding,
unless there is a basis in law and fact for doing so that is not frivolous, which includes a
good faith argument for an extension, modification, or reversal of existing law.” The
“good faith” component of the rule is partially subjective, and because we assume that
lawyers are both competent and ethical, State v. Collier, 8th Dist. Cuyahoga No. 95572,
2011-Ohio-2791, ¶ 3, counsel’s representation to the court of appeals that an argument
cannot be made in good faith is entitled to deference, subject to our independent review
of the record and determination that an appeal would not be submitted in good faith.
McCoy v. Court of Appeals, 486 U.S. 429, 447, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).
{¶3} That one attorney might consider an argument frivolous under the facts of a
particular case does not mean that the same argument would be frivolous if raised in a
different case. To be sure, when issues on appeal involve the pure application of law,
there is generally no basis for disagreement unless an attorney can make a good faith
argument for the extension, modification, or reversal of existing law. It is inconceivable,
for example, that an attorney could make a good faith argument that there is a five-year
statute of limitations for the crime of murder when R.C. 2901.13(A)(2) very plainly states
that there is no period of limitation for that offense.
{¶4} But when an issue involves the application of disputable facts to settled
principles of law, we recognize that different attorneys could disagree about what may or
may not be subject to good faith argument in a particular case. It is one thing to say as a
matter of law that Crim.R. 11(C)(1)(c) requires the court to advise the defendant that a
guilty plea waives the right to a jury trial; it is another thing to determine under the facts
of a particular case whether the court complied with that rule. For this reason, fact-based
issues raised in Anders cases are typically nonbinding in regular merit appeals.
{¶5} Turning to the merits of counsel’s motion to withdraw, counsel suggests that
Anderson might complain that the court failed to comply with Crim.R. 11 when accepting
his guilty plea, but that the record shows full compliance. We agree with counsel — the
record shows that the court scrupulously adhered to Crim.R. 11 before accepting
Anderson’s plea. Any argument to the contrary would be frivolous.
{¶6} We likewise agree with counsel that any argument Anderson might raise that
his maximum sentences on both counts are contrary to law would be frivolous because a
sentence is only considered contrary to law if it falls outside the statutory range for the
applicable degree of felony. State v. Hairston, 118 Ohio St. 3d 289, 2008-Ohio-2338,
888 N.E.2d 1073, ¶ 21; State v. Powell, 8th Dist. Cuyahoga No. 99386, 2014-Ohio-2048,
¶ 115. The sentences imposed were within the applicable statutory range, so they were
not contrary to law.
{¶7} Counsel raises the possibility that Anderson might argue that the court erred
by failing to hold a competency hearing after referring him for a competency evaluation
as required by R.C. 2945.37(B), but asserts that the argument could not be made in good
faith because the court’s psychiatric clinic concluded that Anderson was competent to
stand trial and that trial counsel stipulated to Anderson’s competency to stand trial. We
agree — the stipulation waived the statutory requirement for a hearing. State v. O’Neill,
7th Dist. Mahoning No. 03 MA 188, 2004-Ohio-6805, ¶ 21 (“Where the parties stipulate
to the contents of the competency reports which opine that the defendant is competent, the
parties stipulate to competency and waive the competency hearing.”); State v. Dowdy, 8th
Dist. Cuyahoga No. 96642, 2012-Ohio-2382, ¶ 14.
{¶8} The final potential issue raised by counsel — that the court failed to consider
the sentencing factors of R.C. 2929.11 and 2929.12 — would be frivolous. Precedent
from this appellate district holds that a sentencing court complies with its mandatory duty
to consider the sentencing factors of R.C. 2929.11 and 2929.12 if its sentencing entry
states that it has considered those factors. See State v. Szakacs, 8th Dist. Cuyahoga No.
101787, 2015-Ohio-1382, ¶ 4; State v. Evans, 8th Dist. Cuyahoga No. 101485,
2015-Ohio-1022, ¶ 35. The court’s sentencing entry not only indicates that it considered
the sentencing factors, the sentencing judge stated as much during sentencing and
determined that “a prison sanction needs to be imposed to actually protect the public and
to punish the defendant.”
{¶9} We would add that an assignment of error relating to the weight the court
gave to the R.C. 2929.11 and 2929.12 factors would likewise be frivolous because this
court has no authority to consider this issue on appeal. R.C. 2953.08(A) defines five
grounds for appealing a criminal sentence. The only applicable ground for a claim that
the court failed to consider the sentencing factors of R.C. 2929.11 and 2929.12 would be
that the sentence is contrary to law under R.C. 2953.08(A)(4). State v. Carrington, 8th
Dist. Cuyahoga No. 100918, 2014-Ohio-4575, ¶ 22. The weight that the sentencing
judge gives to those sentencing factors is an exercise of its discretion, not an application
of the law. R.C. 2953.08(G)(2) expressly states that an appellate court’s standard of
review is not whether the sentencing court abused its discretion. So a complaint about
the manner in which the court applied the factors would be unreviewable. See State v.
Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023, ¶ 18; State v. Switzer, 8th Dist.
Cuyahoga No. 102175, 2015-Ohio-2954, ¶ 12.
{¶10} The recent Supreme Court decision in State v. Marcum, Slip Opinion No.
2016-Ohio-1002, does not change this conclusion. Even though appellate courts can
vacate or modify sentences if they find by clear and convincing evidence that the record
does not support the sentence, id. at ¶ 23, Marcum did not consider whether the right to
appeal the sentencing court’s weighing of sentencing factors is barred as a matter of law
by R.C. 2953.08(A). Nothing said in that decision would indicate that Akins is no longer
viable precedent.
{¶11} We grant appellate counsel’s motion to withdraw as counsel. Anderson did
not file a pro se brief when informed of appellate counsel’s desire to withdraw from
representation because counsel could not ethically find nonfrivolous issues to raise in this
appeal. The failure to file a brief is the functional equivalent of abandoning the appeal.
We therefore dismiss this appeal for nonprosecution.
{¶12} Appeal dismissed.
It is ordered that appellee recover of said appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION)
MARY J. BOYLE, J., CONCURRING IN JUDGMENT ONLY:
{¶13} I write separately to express my view that State v. Taylor, 8th Dist.
Cuyahoga No. 101368, 2015-Ohio-420, expressly contradicts our role as a reviewing
court set forth in Loc.R. 16(C), as well as reviewing courts’ role under Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Under Loc.R. 16(C)
and Anders, this court has an obligation to independently review the record to determine
whether the appellant has an issue of arguable merit. Anders at 744. Thus, I
respectfully concur in judgment only with the lead opinion.