STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO v. DEVON ANDERSON
CASE NO. 11 MA 125
SEVENTH DISTRICT
June 13, 2012
[Cite as State v. Anderson, 2012-Ohio-2759.]
Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite
O P I N I O N
JUDGMENT: Affirmed and Modified.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney; Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Edward Czopur, 42 North Phelps Street, Youngstown, Ohio 44503
{¶1} Defendant-appellant Devon Anderson appeals from his conviction and sentence entered in the Mahoning County Common Pleas Court for domestic violence. Appointed counsel filed a no merit brief and requested leave to withdraw. A review of the case file and brief reveals that there is one potential issuе regarding the postrelease control sentence; the trial court indicated that there was a mandatory three year term of postrelease control, when the statute actually indicates that it is discretionary and up to three years. Finding no other errors, we grant appointed counsel’s motion to withdraw. The cоnviction is affirmed. However, the sentence is affirmed in part in all respects except for the post release control sentence. The post release control sentence is modified to indicate that Anderson could be subject to up to three years of postrelease control.
STATEMENT OF CASE
{¶2} On March 24, 2011, Anderson was indicted for domestic violence in violation of
ANALYSIS
{¶3} When appellate counsel seeks to withdraw and discloses that there are no meritorious arguments for appeal, the filing is known as a no merit or an Anders brief. Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
{¶4} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent’s appeal is frivolous:
“3. Where 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 requеst 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 proсeedings 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.
“* * *
“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 reсord should be allowed, and the judgment of the trial court should be affirmed.” Id. at syllabus.
{¶10} The no merit brief was filed by counsel on January 17, 2012. On January 24, 2012, this court informed Anderson of counsel’s no merit brief and granted him 30 days to file his own written brief. 01/24/12 J.E. Anderson has not filed a pro se brief. Thus, the analysis will proceed with an independent examination of the record to determine if the appeal is frivolous.
{¶11} The no merit brief review identifies one potential issue for appeal: the refusal of the trial court to follow the state’s recommendation to run the six month sentence concurrent with the sentence issued in Case No. 09CR565. In reviewing this possible appellate argument, counsel concludes thаt it has no merit and the appeal is frivolous.
{¶12} In addition to reviewing the issue identified by counsel, this court’s independent review of the file permits us to review whether the plea was entered knowingly, intelligently and voluntarily. It also permits us to review the entire sentence to determine whether it complies with the law. Each issue will be reviewed in turn.
Plea
{¶13}
{¶14} The nonconstitutionаl rights that the defendant must be informed of are: 1) the nature of the charges; 2) the maximum penalty involved, which includes, if applicable, an advisement on postrelease control; 3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions, and 4) that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing.
{¶15} The trial court’s advisement on the constitutional rights strictly complied with
{¶16} As to the
{¶17} The trial court did not advise Anderson on his eligibility for probation or a community control sanction. However, it was not required to.
{¶18} The trial court also did not advise Anderson pursuant to
{¶19} Therefore, considering all the above, we find that the trial court’s advisement as to the nonconstitutional rights substantially complied with
Sentencing
{¶20} We review felony sentences using both the clearly and convincingly contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist. No. 08MA101, 2009–Ohio–695, ¶ 8; State v. Gray, 7th Dist. No. 07MA156, 2008–Ohio–6591, ¶ 17. We first determine whether thе sentencing court complied with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. Gratz at ¶ 8, citing State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, ¶ 13–14. Then, if it is not clearly and convincingly contrary to law, we must determine whether the sentencing court abused its discretion in applying the factors in
{¶21} Anderson pled guilty to domestic violence, a fourth-degree felony, and the trial court sentenced him to a six month term of incarceration. 08/02/11 Tr. 13-14; 08/08/11 J.E. This sentence is within the sentencing range of 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 months that is permitted by
{¶22} “The Court considered the record, oral statement, as well as the principles and purpose of sentencing under ORC § 2929.11 and balances the seriousness and recidivism factors under ORC § 2929.12. The Court finds that Defendant is not amenable to a community control sanction.” 08/08/11 J.E.
{¶23} At the sentencing hearing, the trial сourt made the following statement:
{¶24} “Okay. Well, the Court has taken into consideration the past record of the defendant, including prior domestic violence and all the defenses and the fact that he’s currently completing a term under another case, under Judge Krichbaum, 09 CR 565. Further, the Court has reviewed the purposes and principles of sentencing and the chance of recidivism, and it will be the order of the Court that the defendant will be sentenced to a six-month stay at Lorain Correctional Facility in this matter and that the sentence is to be served consecutively to the sentence impose in 09 CR 565. There will be no fine imposed. The court costs will be imposed.” 08/02/11 Tr. 13-14.
{¶25} Thus, the trial court did consider the purposes and principles of sentencing in
{¶26} Admittedly, there was a plea agreement between the state and Anderson that the state would recommend a six month term of incarceration that was to run concurrent with the sentence imposed in 09CR565. The trial court did not follow that recommendatiоn. However, that does not render the sentence clearly and convincingly contrary to law or show that the trial court abused its discretion. As appellate counsel points outs, trial courts generally are not a party to the plea negotiations and the contract itself. State v. Vari, 7th Dist. No. 07MA142, 2010-Ohio-1300, ¶ 24. Thus, “the court is free to impose a sentence greater than that forming the inducement for the defendant to plead guilty so long as the court forewarns the defendant of the applicable penalties, including the possibility of imposing a greater sentence than that recommended by the prosecutor.” Id., citing State v. Martinez, 7th Dist. No. 03MA196, 2004-Ohio-6806, ¶ 8. That said, we have explained that once
{¶27} The record in this case shows that Anderson was advised and understood that the trial court was not bound by the plea agreement of six months to run concurrently with the sentence in case number 09CR565. In explaining the rights he was waiving by entering a guilty plea, the trial сourt advised Anderson it was not bound by the plea agreement:
{¶28} “THE COURT: Okay. The sentencing is always up to the Court. It is not up to your lawyer or up to the prosecutor. * * *
{¶29} “THE DEFENDANT: Yes.
{¶30} “THE COURT: All right. Now, you want to – you understand that the Court in sentencing you can give you up to 18 months in the penitentiary and a $5,000 fine? You understand that?
{¶31} “THE DEFENDANT: Yes.
{¶32} “THE COURT: And any sentence imposed by this Court can be what’s cаlled consecutive to any sentence impose in that 09 565 case; do you understand that?
{¶33} “THE DEFENDANT: Yes.” 08/02/11 Tr. 5-6.
{¶34} Furthermore, Anderson’s counsel indicated that he spoke to Anderson about the possibility of the trial court imposing the sentence consecutively to Case No. 09CR565:
{¶35} “MR. DIXON [counsel for Anderson]: * * *I did talk to Mr. Anderson prior to the sentencing and told him that, in my opinion, that there would be a likelihood that the sentence could be imposed consecutively. So he is – he’s understanding and mindful of that fact.” 08/02/11 Tr. 12.
{¶36} Thus, Anderson was aware that the sentence could be run consecutively to the sentence in 09CR565. Furthermore, the record is devoid of any indication that the trial court became a pаrt of the plea negotiations. In fact the above quoted statements by the trial court imply that it had no interaction in the plea agreement that was reached between the state and Anderson. Consequently, given
{¶37} That said, there is one error that we find with the sentencing. The trial court informed Anderson that following his release from confinеment he “will” be subject to three years postrelease control pursuant to
{¶38} “Any sentence to a prison term for a felony of the third, fourth, or fifth degree that is not subject to division (B)(1) or (3) of this section shall include a requirement that the offender be subject to a period of post-release control of up to three years after the offender’s release from imprisonment, if the parole board, in accordance with division (D) of this section, determines that a period of post-release control is necessary for that offender.”
{¶39} Anderson is not subject to (B)(1) – (3) since those divisions apply to first, second, and third-degree felonies. Thus, by statute, Anderson can only be subject to a discretionary period of postrelease control that could be up to three years. The court’s judgment stated that “he will be subject to three (3) years post release control pursuant to ORC § 2967.28.” The use of the word “will” suggests it is mandatory, not discretionary. Furthermore, the trial court does not indicate that it is up to three years.
{¶40} The Ninth Appellate District in 2009 found that a sentence was void because the trial court incorrectly stated that the postrelease control for the fourth degree felony domestic violence was mandatory. State v. Bedford, 184 Ohio App.3d 588, 2009-Ohio-3972, 921 N.E.2d 1085, ¶ 5-8 (9th Dist.). The Ohio Supreme Court has indicated that when a “judge fails to impose statutorily mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. Thus, if the sentence as to postrelease control was not accurate that part
{¶41} In this instance, as there are no other errors in the sentencing, we choose to modify the sentence. The portion of Anderson’s sentence that indicates that he is subject to a three year term of post release control is modified to indicate that Anderson’s sentence includes a discrеtionary term of post release control of up to three years. The trial court’s sentencing of Anderson to 6 months for the domestic violence conviction to run consecutive with the 15 month sentence he received in case number 09CR565 remains intact and undisturbed.
{¶42} For the foregoing reasons, the conviction is affirmed and the sentence is affirmed in part and modified in part. Counsel’s motion to withdraw is granted.
Donofrio, J., concurs.
Waite, P.J., concurs.