2007 Ohio 5638 | Ohio Ct. App. | 2007
{¶ 2} A timely Notice of Appeal was filed on March 1, 2007. On May 1, 2007, counsel for Appellant filed a brief pursuant to Anders v.California (1967),
{¶ 5} Appellant also filed a pro se brief raising one Assignment of Error as follows: *3
{¶ 7} In Anders, the United States Supreme Court held that if, after a conscientious examination of the record, a defendant's counsel concludes that the case is wholly frivolous, then he should so advise the court and request permission to withdraw. Id. 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 his 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 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.
{¶ 8} Counsel for Appellant filed a Notice and Certification of Compliance with Court Order verifying he served Appellant with a copy of the proposed Assignments of Error and notice of his right to file his own brief. Appellant was sent this notice on May 17, 2007, however, he has filed a pro se brief raising an additional assignment of error. *4
{¶ 9} Appellant was originally indicted with a life specification accompanying the rape count. He also was indicted on one count of Gross Sexual Imposition, one count of Tampering with Evidence, and one count of Child Endangering. As a result of plea negotiations, the life specification was dismissed as was the count of gross sexual imposition. The tampering with evidence charge was reduced to an attempted tampering with evidence charge.
{¶ 10} The State charged Appellant with Rape for the digital penetration of the five-year-old daughter of his live-in girlfriend. Additionally, one count of child endangering stemmed from the same facts as the rape charge. When Appellant was confronted with the rape allegations, he was advised his girlfriend was going to take her daughter to the hospital for an examination. Appellant, knowing authorities would be investigating the allegations, planted a vibrator in the child's bed, thereby providing an explanation for her injuries which was intended to exonerate him. Unbeknownst to Appellant, the child's bed had already been examined by authorities with no vibrator being found. These facts formed the basis of the attempted tampering with evidence charge.
{¶ 11} We now turn to Appellant's potential Assignments of Error.
*5{¶ 13} "In felony cases, the court may refuse to accept a plea of guilty * * * and shall not accept such plea without first addressing the defendant personally and:
{¶ 14} "(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.
{¶ 15} "(b) Informing him of and determining that he understands the effect of his plea of guilty * * * and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶ 16} "(c) Informing him and determining that he understands that, by his plea, he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the State to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself."
{¶ 17} If the record indicates that the trial court substantially complied with the above requirements of Crim.R. 11, the plea will not be set aside. State v. Ballard (1981),
{¶ 18} At the conclusion of the hearing, the trial court made a finding Appellant had entered his plea knowingly, intelligently, and voluntarily with the advice of counsel. Appellant avoided a life sentence by entering this plea, and it appears from the record, Appellant fully understood the ramifications of entering his plea. Additionally, this is also evidenced by Appellant's execution of a written plea form.
{¶ 19} Accordingly, Appellant's proposed first Assignment of Error is hereby overruled.
{¶ 21} An individual has no substantive right to a particular sentence within the range authorized by statute. Gardner v. Florida (1977),
{¶ 22} We will not reverse the trial court's sentencing decisions absent an abuse of discretion. State v. Kandel, 5th Dist. No. 04COA011,
{¶ 23} The rape count, which was a felony of the first degree, carried a possibility of three to ten years in prison. R.C.
{¶ 24} We find the trial court selected sentences within the range provided by statute and followed the negotiated plea agreement. *7
{¶ 25} Accordingly, Appellant's proposed second Assignment of Error is hereby overruled. We now turn to Appellant's pro se Assignment of Error
{¶ 27} Appellant argues that a retroactive application of State v.Foster (2006),
{¶ 28} In State v. Foster,
{¶ 29} The Supreme Court restricted retroactive application of its holding to cases on direct review. State v. Gopp, Wayne App. No. 06CA0034,
{¶ 30} Retroactive changes in the measure of punishment are impermissibly ex post facto if they subject a defendant to a more severe sentence than was available at the time of the offense. See Lindsey v.Washington (1937),
{¶ 31} After Foster, a trial court is permitted to impose a sentence within the range provided by statute without making any special findings. As discussed in the second Assignment of Error, the trial court did in fact impose a sentence within the applicable sentencing range.
{¶ 32} Appellant's sole pro se Assignment of Error is, therefore, overruled.
{¶ 33} For these reasons, after independently reviewing the record, we agree with counsel's conclusion that no arguably meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the trial court.
{¶ 34} The judgment of the Licking County Court of Common Pleas, General Division, is affirmed.
*9Gwin, P.J. Hoffman, J. and Wise, J. concur.
Attorney Devon C. Harmon's motion to withdraw as counsel for Appellant is hereby denied.
*1COSTS TAXED TO APPELLANT.