State v. D.M.J.State v. D.M.J.
Rendered on March 31, 2014
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Blaise Baker, for appellant.
APPEAL from the Franklin County Court of Common Pleas
T. BRYANT, J.
{¶1} Defendant-appellant, D.M.J., appeals from a judgment from the Franklin County Court of Common Pleas finding him guilty of five counts of gross sexual imposition, violations of
I. BACKGROUND
{¶2} Appellant was indicted on 12 counts; two of those counts were rape, in violation of
{¶3} At the sentencing hearing, appellant‘s counsel argued that the sentence the trial court would impose did not require mandatory imprisonment time because the mandatory sentencing provision violates the United States Supreme Court‘s holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Counsel argued that the corroborating evidence must be adduced at trial, not through a change of plea hearing, and the existence of corroborating evidence is a question of fact that must be proven beyond a reasonable doubt before a mandatory sentence can be imposed.
{¶4} The trial court sentenced appellant to a mandatory sentence of five years of incarceration as to Counts 1, 2, 4, and 5 to be served consecutively and five years of incarceration on Counts 6 and 7 to be served concurrently with each other and the other counts, for a total of 20 years of incarceration. The trial court entered a nolle prosequi for Counts 3, 8, 9, 10, 11, and 12 of the indictment.
{¶5} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738 (1967), appellant‘s counsel filed an appellate brief and motion to withdraw as counsel. Counsel certified that he had mailed a copy of the brief and motion to appellant with instructions that he may file his own brief. Appellant did not do so.
II. ASSIGNMENT OF ERROR
{¶6} Appellant‘s counsel states that he thoroughly reviewed the original court file, as well as the transcript of proceedings, and concluded that the trial court did not commit any error prejudicial to appellant. However, in compliance with the requirements of Anders, appellant‘s counsel submitted a brief setting forth the following possible assignment of error:
Whether the sentence imposed by the Court is mandatory under
O.R.C. 2907.05 .
A. Counsel‘s Possible Assignment of Error
{¶7} Appellant entered an Alford plea. There is no significant difference between an Alford plea and a guilty plea, other than the defendant continues to claim innocence in the Alford plea. Id. at 37-38. Therefore, an Alford plea is procedurally the same as a guilty plea because it limits the ability of a defendant to appeal from his sentence. State v. Maples, 6th Dist. No. L-93-009 (Mar. 11, 1994). When a defendant enters a guilty plea as part of a plea bargain, he “waives all appealable errors ‘* * * unless such errors are shown to have precluded the defendant from voluntarily entering into his or her plea pursuant to the dictates of Crim.R. 11(C).‘” State v. Witcher, 6th Dist. No. L-92-354 (Dec. 30, 1993), quoting State v. Kelley, 57 Ohio St.3d 127 (1991), paragraph two of the syllabus.
{¶8} “When appointed appellate counsel files a motion to withdraw, this court must ensure that counsel has: (1) conducted a thorough review of the record on appeal before deciding that the appeal is frivolous; (2) filed a motion to withdraw explaining counsel‘s belief that the appeal is frivolous; (3) filed a brief raising any possible assignments of error; (4) provided a copy of the brief to appellant; and (5) provided appellant with adequate opportunity to inform this court of any additional potential assignments of error which appellant believes should be addressed on appeal.” State v. Love, 6th Dist. No. L-96-156 (Mar. 21, 1997), citing Anders at 744.
{¶9} By his possible assignment of error, appellant‘s counsel raises the issue that the trial court erred by imposing a mandatory sentence.
{¶11} Further, this court determined in North, that, in enacting
{¶12} In F.R., this court held that State v. Bevly, 10th Dist. No. 12AP-471, 2013-Ohio-1352, and North previously determined that
{¶13} In this case, corroborating evidence also exists. The prosecuting attorney provided a summary of the facts including that two of the sisters had been interviewed and disclosed that their brother had assaulted them. When the police detective interviewed appellant, he initially denied the allegations, but then admitted the allegations and reported that he had committed other similar incidents with his third sister. The police detective testified that the girls reported sexual assaults that took place over a long period of time by appellant. A recording of appellant‘s interview was also admitted into evidence.
B. Court‘s Review of Record
{¶15} Pursuant to Anders, this court is required to review the proceedings to determine if the appeal is frivolous as appellant‘s counsel claims. We have reviewed the entire trial court‘s proceedings and have determined that there is no merit to the error alleged by appellant‘s counsel. However, our review of the record reveals that the trial court erred in imposing consecutive sentences without making the statutory findings required by
{¶16} We note that appellant failed to object to the imposition of consecutive sentences at the sentencing hearing and has forfeited all but plain error. State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 8. Under
{¶17} Generally, we review felony sentences to determine ” ‘whether clear and convincing evidence establishes that a felony sentence is contrary to law.’ ” State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 8, quoting State v. Allen, 10th Dist. No. 10AP-487, 2011-Ohio-1757, ¶ 19. ” ‘A sentence is contrary to law when the trial court failed to apply the appropriate statutory guidelines.’ ” Id., quoting Allen at ¶ 19, citing State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19.
{¶18}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶19} Thus, ”
{¶20} In this case, the trial court did not specify the necessary findings. This court has previously found that, when the record demonstrates that the trial court failed to make the findings required by
{¶21} Since the trial court imposed consecutive sentences without specifying the necessary findings, “appellant‘s sentence is contrary to law and constitutes plain error.” Wilson at ¶ 18. As such, we must vacate appellant‘s sentence and remand this cause for resentencing.
IV. CONCLUSION
{¶22} Although we overruled appellant‘s possible assignment of error, finding it has no merit, we do not find the appeal to be frivolous. Having found that the trial court did commit error which is prejudicial to appellant, the judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded for resentencing. Appellant‘s counsel‘s request to withdraw as appellate counsel is granted.
{¶23} On remand, the trial court must appoint new counsel for appellant and determine whether consecutive sentences are appropriate under
Motion to withdraw granted; judgment reversed and cause remanded for appointment of counsel and resentencing.
TYACK and KLATT, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).