State v. AdamsState v. Adams
For Plaintiff-Appellee Attorney Paul Gains Mahoning County Prosecutor Attorney Ralph Rivera Assistant Prosecutor 21 West Bоardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant Attorney Andrew Zellers 3810 Starrs Centre Drive Canfield, Ohio 44406
{¶1} Defendant-Appellant Raudeed Adams appeals the judgment of the Mahoning County Court of Common Pleas convicting him of one count of felonious assault and sentencing him accordingly. Appointed appellate counsel for Adams filed a no-merit brief and a request to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967) and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th.Dist.1970). Adams filed a brief thereafter asserting four assignments of error. For the following reasons, this court sustains counsel‘s motion to withdraw and affirms the judgment of the trial court as there are no meritorious arguments on appeal.
Facts and Procedural History
{¶2} Adams was indicted on one count of felonious assault,
{¶3} Adams entered into a
{¶4} An attorney appointed to represent an indigent criminаl defendant may seek permission to withdraw if the attorney can show that there is no merit to the appeal. See generally Anders, supra. To support such a request, appellate counsel is required to undertake a conscientious examination of the casе and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support an appeal. Toney at 207. Counsel‘s motion must then be
{¶5} Counsel filed a no-merit brief and Adams filed a brief asserting four assignments of error which we will address. State v. Moore, 7th Dist. No. 08 MA 20, 2009-Ohio-1505, ¶ 13. In the typical Anders/Toney case involving a guilty plea, the only issues that can be reviewed on appeal relate to the plea and the sentence. State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, ¶ 11.
Plea
{¶6} A guilty plea must be made knowingly, voluntarily and intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7. If it is not, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness of a plea, this court must consider all of the rеlevant circumstances surrounding it. State v. Johnson, 7th Dist. No. 07 MA 8, 2008-Ohio-1065, ¶ 8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
{¶7} The trial court must engage in a
{¶8} The constitutional rights the defendant must be notified of are the right against self-incrimination, to a jury trial, to confront one‘s accusers, to compel witnesses to testify by compulsory process, and to have the state prove guilt beyond a reasonable doubt.
{¶9} The nonconstitutional rights the defendant must be informed of are the effect of his plea, the nature of the charges, and the maximum penalty, which includes an advisement on post-release control if applicable. Further, a defendant must be notified, if apрlicable, that he is not eligible for probation or the imposition of community control sanctions. Finally, this encompasses notifying the defendant that the court may proceed to judgment and sentence after accepting the guilty plea.
{¶10} The trial court‘s advisement of Adams’ constitutional rights strictly complied with
{¶11} The trial court substantially complied with
{¶12} As the trial court‘s colloquy complied with
Sentencing
{¶13} This Court is currently split as to the standard of review to apply in felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014-Ohio-919, which applied the two-part test set forth in the plurality oрinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, and State v. Wellington, 7th Dist. No. 14 MA 115, 2015-Ohio-1359, which applied
{¶14} Adams was afforded his allocution rights pursuant to
{¶15} The record demonstrates that the trial court considered the purposes of felony sentencing and the sentencing factors of
{¶16} The trial court‘s sentence was within the appropriate statutory range and consistent with the law and purposes of Ohio‘s felony sentencing, however, the court did not expressly state that a minimum sentence would demean the seriousness of this оffense and would not adequately protect the public. Although the trial court did not specifically reference
“The trial court has full discretion to impose аny sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” (Citation omitted.) State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). “However, the trial court must comply with all applicable rules and statutes, including
R.C. 2929.11 andR.C. 2929.12 .” Id. (Citation omitted.) Although therе is a mandatory duty to consider the relevant statutory factors underR.C. 2929.11 andR.C. 2929.12 , these statutes do not require the court to explicitly state any findings about these factors. State v. Thomas, 2d Dist. Montgomery No. 26123, 2014-Ohio-5262, ¶ 22; State v. Graham, 2d Dist. Montgomery Nos. 26205, 26206, 2015-Ohio-896, ¶ 18-19.
State v. Walden, 2d Dist. No. 2014-CA-84, 2016-Ohio-47, ¶ 8.
{¶17} Here the trial judge stated he considered the “principles and purposes of sentеncing” which aligns with
{¶18} The remaining potential assignment of error suggested by appellate counsel, but deemеd not to be error, involves the prosecuting attorney failing to remain silent during sentencing as was part of the Rule 11 agreement. The prosecutor initially did not make any recommendation regarding a sentence and expressly stated: “I certainly would stand silent and give nо opinion whatsoever about the sentence this court may impose.” However, the prosecutor did respond to statements made by Adams about the victim not actually being injured and to support the calculation of jail time credit. Specifically, the prosecutor refuted Adams’ contention that he did not receive the victim‘s medical records and noted that the records verified the victim‘s testimony regarding his injuries. The prosecutor also rebutted Adams’ claim that he had never been in trouble by reminding the trial court that the PSI disclosed multiple juvenile adjudications. As such, appellate counsel‘s ultimate conclusion is correct and this potential assignment of error is meritless.
Pro Se Representation
{¶19} In his first of four assignments of error, Adams asserts:
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE DEFENDANT-APPELLANT TO REPRESENT HIS SELF WITHOUT PROPERLY ADVISING HIM OF THE CONSEQUENCES OF HIS WAIVER OF COUNSEL IN OPEN COURT. (sic) VIOLATING HIS RIGHTS PURSUANT TO OHIO CONSTITUTION ARTICLE I, SECTION 10; UNITED STATES CONSTITUTION SIXTH AMENDMENT.
{¶20} A defendant‘s right to self-representation has long been recognized. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). When a defendant requests to proceed pro se, the trial court must consider whether the
{¶21} Adams argues that the trial court failed to conduct an adequate colloquy contending that the trial court was required to ask questions about his educational background. However, а review of the transcript demonstrates that Adams waiver of counsel was timely as well as knowingly, voluntarily and intelligently made. Adams confirmed that he wanted to waive counsel, that he read the waiver form, and that he understood what he was doing. Adams reviewed the waiver of counsel form with the advisory lawyer he was appointed, and he signed the form in open court. Accordingly, this assignment of error is meritless.
Biased Statements
{¶22} In his second of four assignments of error, Adams asserts:
THE TRIAL COURT COMMITTED REVERSABLE ERROR DURING SENTENCING BY MAKING BIASED STATEMENTS, PUNISHING THE APPELLANT FOR INVOKING HIS CONSTITUTIONAL RIGHTS TO COUNSEL. OHIO CONSTITUTION ARTICLE I, SECTION 10; UNITED STATES CONSTITUTION AMENDMENT[S] 14.
{¶23} Adams takes issue with the trial court acknowledging that he had “gone through” three lawyers and “ended up with a stand-by lawyer who was excellent.” Adams believes that he received his three year sentence based on the fact that he had multiple attorneys. The record does not support this contention. These statements by the trial court establish that Adams had the bеnefit of legal counsel throughout the proceedings. The trial court clearly based its sentence on Adams’ prior record, the seriousness of the offense, the injury to the victim while being guided
Self-Defense & Access to PSI
{¶24} In his third of four assignments of error, Adams asserts:
THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING APPELLANT TO PRISON BASED OFF OF FACTS THAT WERE NOT TRUE OR CORRECT. IN VIOLATION OF OHIO CONSTITUTION ARTICLE I, SECTION 10; UNITED STATES CONSTITUTION AMENDMENT[S] 5 AND 14.
{¶25} Adams contests factual determinations and appears to proffer a theory of self-defense. Because
Ineffective Assistance of Standby Counsel
{¶26} In his fourth and final assignment of error, Adams asserts:
APPOINTED STAND-BY TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE APPELLANT THAT HE COULD BRING WITNESSES TO TESTIFY IN MITIGATION OF SENTENCING AND FOR FAILING TO APPEAR AT THE [HEARING] IN VIOLATION OF OHIO CONSTITUTION ARTICLE I, SECTION 10; UNITED STATES CONSTITUTION AMENDMENT[S] 5 AND 14.
{¶27} First, at no point during the sentencing hearing did Adams bring to the court‘s attention that he wished to have standby counsel present. Errors not brought to the trial court‘s attention by objection or otherwise are waived for purposes of
{¶28} Lastly, in Ohio a defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel, but has no right to hybrid representation. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, syllabus. As such, when a defendant waives his right to counsel he waives his right to claim ineffective assistance of counsel. State v. Turner, 8th Dist. No. 88958, 2007-Ohio-5732, ¶ 40. As Adams validly waived his right to counsel he is precluded from asserting this claim. Further, he alleges that standby counsel should have advised him that he could present witnesses to testify at sentencing. However, Adams did bring his wife as a witness to testify but due to hеr being “emotional” he did not have her testify. Accordingly, this assignment of error is meritless.
{¶29} In sum, based upon our independent review of the record, we sustain counsel‘s motion to withdraw as there are no meritorious arguments on appeal, and Adams’ four pro se assignments of error are meritless. Accordingly the judgment of the trial court is affirmed.
Donofrio, P. J., concurs.
Waite, J., concurs.