State v. DotsonState v. Dotson
Rendered on the 24th day of May, 2019.
PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, Appellate Division, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, P.O. Box 20368, Dayton, Ohio 45420 Attorney for Defendant-Appellant
- whether the trial court erred by failing to comply with
Crim.R. 11 in accepting Dotson’s plea, and - whether Dotson’s guilty plea was entered knowingly, intelligently, and voluntarily.
{¶ 2} We informed Dotson that his attorney had filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se brief. To date, no pro se brief has been filed.
{¶ 3} Pursuant to Anders, we must determine, “after a full examination of all the proceedings,” whether the appeal is “wholly frivolous.” Id. at 744; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous merely because the prosecution can be expected to present a strong argument in response. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that presents issues lacking arguable merit, which means that, “on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing Pullen at ¶ 4. If we find that any issue – whether presented by appellate counsel, presented by the defendant, or found through an independent analysis – is not wholly frivolous, we must
Factual and Procedural Background
{¶ 4} Dotson was indicted for a single count of felonious assault in violation of
{¶ 5} During the plea hearing, the State did not present the facts underlying the offense or set forth the elements of the amended charge. In response to questioning by the trial court, Dotson stated that he was a 35-year-old high school graduate and a U.S. citizen. He denied being under the influence of medications, drugs, or alcohol, or ever having suffered from any mental illness or disease. Dotson had no pending criminal charges and was not on community control, parole, or post-release control.
{¶ 6} Dotson confirmed his understanding that he would be pleading guilty to attempted felonious assault, a third-degree felony. He said that he had read, understood, and voluntarily signed the written plea agreement. Dotson’s attorney also confirmed that counsel had reviewed that document with Dotson and believed that Dotson understood its contents; Dotson indicated that he was satisfied with his attorney’s representation. Dotson then affirmed that he understood the allegations set forth in the indictment and what the State would be required to prove in order for the court to find Dotson guilty of attempted felonious assault. He also indicated his understanding that a guilty plea was a complete admission of guilt that would result in a guilty judgment against him.
{¶ 7} The court then informed Dotson that the potential penalty for attempted
{¶ 8} Continuing, the trial court advised Dotson that, by pleading guilty, he would be waiving his constitutional rights to a jury trial, to require the State to prove his guilt beyond a reasonable doubt as to each and every element of the offense, to confront and cross-examine the witnesses against him, to compel witnesses to appear on his behalf, and to remain silent at trial. The court also informed Dotson of his right to appeal and his right to counsel. Again, Dotson affirmed his understanding of each of the trial court’s statements.
{¶ 9} On the record, the State then moved to amend the indictment to reflect a charge of attempted felonious assault in violation of
{¶ 10} At the sentencing hearing, Dotson’s attorney provided an explanation of the circumstances underlying Dotson’s offense, purportedly acquired through conversation
{¶ 11} While acknowledging that there was “not any justification whatsoever” for Dotson’s conduct (id.), defense counsel urged that Dotson had suffered “a lot of negative consequences already,” had found employment and was avoiding alcohol use, was participating in individual counseling, and was attending AA. (Id., pp. 6-10). Dotson’s counsel urged the trial court to sentence Dotson to probation. (Id., p. 11).
{¶ 12} The trial court summarized Dotson’s prior criminal history as detailed in the PSI, including two traffic citations as a juvenile and, as an adult, one conviction for forgery, two for theft (one from an elderly or disabled person), two for disorderly conduct (one reduced from domestic violence), and one for use or possession of marijuana and drug paraphernalia. His record also included dismissed charges, the most recent being a telephone harassment charge dismissed on November 28, 2017.
{¶ 14} The PSI stated that the police officers who took Julie’s assault report indicated that Julie’s “eye ball was blood red with no white showing, and blood [was] running down her face * * * from her left eye.” In relating his version of events to the presentence investigator, Dotson said that “the events of the evening [we]re not as clear to [him] from being sever[e]ly intoxicated.” However, Dotson echoed his brother’s impression that Dotson believed he was defending his daughter. Dotson admitted to “excessive” use of alcohol, monthly use of marijuana, and “[r]are” use of Vicodin and Percocet, and said that he had been under the influence of alcohol and opiates at the time of the assault.
{¶ 15} Weighing the recidivism and seriousness factors set forth in
{¶ 16} Terming the act of “cold-cocking a fifty-five year old woman” in front of his children (id., p. 19) “flat out reprehensible” (id., p. 18), the trial court sentenced Dotson to 30 months in prison, with four days of jail time credit. The court did not impose a fine or direct Dotson to make restitution, but did order him to pay court costs. The court further advised Dotson that he was subject to three years of PRC upon his release from prison, explained the possible consequences of PRC violations, and advised Dotson of his right to appeal and his right to appellate counsel.
{¶ 17} Defense counsel objected to the trial court’s finding that Dotson lacked remorse and its suggestion that Dotson was not amenable to treatment; the court overruled those objections.
Anders Review
a. Pretrial Matters
{¶ 18} As an initial matter, we find no non-frivolous issues implicated by the events that preceded Dotson’s guilty plea. A plea of guilty is a complete admission of guilt. E.g., State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3;
{¶ 19} Prior to Dotson’s plea, the parties exchanged discovery and filed their respective witness lists. The only other motion filed sought a continuance of the trial date due to the absence of a witness for the State (Doc. #12); that motion was granted. (Doc. #13). Our review of the record reveals nothing that occurred prior to the plea hearing that suggests a viable, non-frivolous issue for appeal.
b. Dotson’s Plea
{¶ 20}
{¶ 22} Furthermore, when non-constitutional rights are at issue, a defendant who challenges his or her guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17.
{¶ 23} But “[w]hen the trial judge does not substantially comply with
{¶ 25} The trial court confirmed with the parties that Dotson was pleading guilty to a reduced charge of attempted felonious assault, and that, in exchange, the State would not pursue the original felonious assault charge or make a sentencing recommendation. Although no statement of facts was offered and the indictment was not read into the hearing record, Dotson said he understood the allegations set forth in the indictment, and also indicated he understood what the State would have to prove in order for Dotson to be found guilty of attempted felonious assault.
{¶ 26} The State is not required to articulate at the plea hearing the factual basis for a felony guilty plea. State v. Riddle, 2017-Ohio-1199, 88 N.E.3d 475, ¶ 39 (2d Dist.). As a general rule, “[a] guilty plea admits the facts set forth in the indictment, not the
{¶ 27} We recently held that a guilty plea may be rendered less than knowing, intelligent, and voluntary where incomplete and inconsistent statements made by the prosecutor and the trial court during the plea hearing may have created confusion about the elements necessary to prove a defendant guilty of the relevant offense, thus undermining confidence that the defendant fully understood the nature of the charges against him and what the State would be required to prove in order to establish his guilt. See State v. Davis, 2d Dist. Clark No. 2018-CA-0049, 2019 Ohio 1904, ¶ 31-33. While the prosecutor in Dotson’s case also failed to read the indictment into the record, here no inconsistent descriptions of the offense’s elements were set forth during the plea hearing. As a result, there is no reason to assume that the actions of the prosecutor or the trial court may have confused Dotson as to the elements needed to prove his guilt, especially given Dotson’s affirmation that he had read and understood the indictment, understood that the State would have to prove all elements of the charged offense, and had received satisfactory explanations from his trial counsel about the plea agreement. While the
{¶ 28} The record reveals no basis to conclude that the trial court failed to substantially comply with
c. Dotson’s Sentence
{¶ 29} In reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 30} “The trial court has full discretion to impose any 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.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
{¶ 31} Dotson’s appellate counsel has identified no potential assignments of error arising from Dotson’s sentence, and our review of the record also has disclosed none. Pursuant to
{¶ 32} As prescribed by
{¶ 33} Having examined the entire record and conducted our independent review in accordance with Penson, we agree with appellate counsel that no non-frivolous issues exist for review. Accordingly, the trial court’s judgment will be affirmed.
DONOVAN, J., concurs.
WELBAUM, P.J., concurs in judgment only.
Copies sent to:
Paul M. Watkins
James S. Armstrong
Nathan Dotson
Hon. Jeannine N. Pratt