2021 Ohio 15
Ohio Ct. App.2021Background
- Michael Green was indicted after two separate OVI incidents within seven weeks (Aug. 3 and Sept. 17, 2019): the first at a fairground (refused testing; admitted drinking) and the second a crash that injured three people (including a 12‑year‑old); he had multiple open cans and refused testing both times.
- Grand jury returned 13 charges across the two incidents: multiple OVIs with repeat‑offender specifications, aggravated vehicular assault counts, and vehicular assault counts; municipal charges from the second crash were bound over and consolidated.
- Green pleaded guilty pursuant to a plea agreement to one OVI with a repeat‑offender specification, one aggravated vehicular assault, and two vehicular assault counts; the State dismissed the remaining counts and recommended a PSI and a 19‑year total term if no new history was revealed.
- After a Crim.R. 11 colloquy, the trial court accepted the pleas, ordered a PSI, and later imposed maximum sentences: statutory terms for each offense, consecutive service, and an aggregate indeterminate term of 19–23 years (including a mandatory 5 years for the repeat specification).
- Appellate counsel filed an Anders brief asserting no meritorious issues, identifying only a possible Crim.R. 11 challenge; Green filed a pro se brief contesting the sentence and arguing the indictment was excessive. The appellate court conducted an Anders independent review and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plea colloquy complied with Crim.R. 11 | State: court properly advised Green of rights, consequences, penalties, and voluntariness | Green: (via Anders potential claim) contends plea may be invalid | Court: Crim.R. 11 fully complied; plea knowing, intelligent, voluntary; no arguable merit |
| Whether maximum, consecutive sentences were improper | State: sentencing findings under R.C. 2929.14(C)(4) supported by record (criminal history, harm, course of conduct) | Green: trial court should not have considered his criminal history; sentence excessive | Court: consecutive findings were made and supported; criminal history properly considered; sentence not contrary to law; no arguable merit |
| Whether the 13‑count indictment was excessive | State: plea waived nonjurisdictional defects in indictment | Green: indictment overcharged / unfair | Court: guilty plea waived such challenges; claim lacks arguable merit |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (appointed counsel may file a brief stating appeal is frivolous and appellate court must independently review the record)
- State v. Clark, 119 Ohio St.3d 239 (Ohio 2008) (trial courts should strictly comply with Crim.R. 11 and ensure defendant understands constitutional rights waived)
- State v. Nero, 56 Ohio St.3d 106 (Ohio 1990) (defendant must show prejudice from Crim.R. 11 noncompliance unless strict compliance required for constitutional waivers)
- State v. Sarkozy, 117 Ohio St.3d 86 (Ohio 2008) (complete failure to comply with Crim.R. 11 can eliminate defendant's burden to show prejudice)
- State v. Bonnell, 140 Ohio St.3d 209 (Ohio 2014) (trial court must make the R.C. 2929.14(C)(4) consecutive‑sentence findings on the record and in the judgment entry)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (appellate review of felony sentences under R.C. 2953.08(G)(2))
- State v. Bishop, 156 Ohio St.3d 156 (Ohio 2018) (partial Crim.R. 11 compliance as to nonconstitutional rights still requires a showing of prejudice)