State of Ohio v. Charles Goldsmith
Court of Appeals No. L-16-1126
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: February 10, 2017
2017-Ohio-484
Trial Court No. CR0201601625
Steven T. Casiere, for appellant.
DECISION AND JUDGMENT
SINGER, J.
{¶ 1} Appellant, Charles Goldsmith, appeals the May 31, 2016 judgment of the Lucas County Court of Common Pleas sentencing him following his conviction of one count of possessing criminal tools. For the reasons that follow, we affirm.
{¶ 3} On May 9, 2016, appellant withdrew his not guilty plea and entered a no contest plea to one count of possessing criminal tools, a felony of the fifth degree. On May 31, 2016, a sentencing hearing was held and appellant was sentenced tо 11 months in prison. A nolle prosequi was entered as to the two other counts of the indictment. This appeal ensued.
{¶ 4} On August 8, 2016, appellant‘s appointed counsel filed a request to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel asserted that after thoroughly reviewing the transcript of proceedings in the trial court and the applicable case law, no meritorious assignments of error could be presented. Counsel did, however, submit three potential assignments of error:
- The trial court committed reversible error by sеntencing appellant to prison for a 5th degree felony.
- The trial court committed reversible error by accepting appellant‘s no contest plea.
- The trial court committed reversible error by ordering appellant to pаy costs of confinement and assigned counsel.
{¶ 6} The proсedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the United States Supreme Court found if counsel, after a conscientious examination of the case, determines that the appeal is wholly frivolous, counsel should so advise the court and request permission to withdraw. Anders at 744. This request must be accompanied by a brief identifying anything in the record which could arguably support the appeal. Id. In addition, counsel must furnish the client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters the client so chooses. Id. Once these requirements have been fulfilled, the appellate court must conduct a full examination of the рroceedings held below to decide if the appeal is indeed frivolous. Id. If the appellate court determines the appeal is frivolous, it may grant counsel‘s request to withdraw and dismiss the appeal without violating constitutional requirements, оr it may proceed to a decision on the merits if required by state law. Id.
{¶ 7} Here, appellant‘s counsel has satisfied the requirements set forth in Anders. We observe appellant has not filed a pro se brief or otherwise responded to counsel‘s rеquest to withdraw. Accordingly, we shall proceed with an examination of the potential
First Potential Assignment of Error
{¶ 8} Appellant contends the trial court erred by sentencing him to prison since there is a presumption against imposition of a prison sentence for a fifth-degree felony.
{¶ 9}
{¶ 10} Here, appellant was convicted of a nonviolent fifth-degree felony. In addition, none of the criteria in
{¶ 12} The appellate standard of review for felony sentences is set forth in
Significantly, Kalish determined that a sentence was nоt clearly and convincingly contrary to law in a scenario in which it found that the trial court had considered the
R.C. 2929.11 purposes and principles of sentencing, had considered theR.C. 2929.12 seriousness and recidivism factors, had properly applied post release control, and had imposed a sentence within thе statutory range. Id.
{¶ 13} Here, the record shows at the sentencing hearing the trial court indicated it had considered the record, the oral statements made at the hearing and the presentence report. The court stated appellant‘s crime was “far greater, far more serious * * * and
{¶ 14} We find the record supports the triаl court‘s finding that appellant was involved in a coordinated calculated theft ring. We further find the trial court properly considered the purposes and principles of sentencing, as stated in
{¶ 15} Based on the foregoing, we conclude the trial court properly sentenced appellant to a term of imprisonment, and the еleven-month sentence is not contrary to law. The first potential assignment of error is not well-taken.
Second Potential Assignment of Error
{¶ 16} Appellant argues the trial court erred by accepting his no contest plea without complying with
{¶ 17} The trial court must substantially comply with
{¶ 19} The court explained to appellant the penalty for a fifth-degree felony was a minimum of six months in prison and a maximum of 12 months in prison, if a prison sentence was imposed, a possible three-year term of postrelease control, and a potential fine of “between zero, no fine, and the maximum fine of $2,500.” The court informed appellant that, by entering a plea, he was waiving his right to a jury trial, to have the elements of the charged offenses proved beyond a reasonable doubt, to cross-examine witnesses at trial, to subpoena witnesses, and tо refuse to testify on his own behalf. The court also apprised appellant of the consequences of a felony conviction as well as the limited rights to appeal his plea and sentence. The court confirmed that appеllant had consulted with his attorney and appellant was satisfied with counsel‘s advice and competence.
{¶ 20} Following the above exchange, the court found appellant was adequately informed of his constitutional rights and knowingly, intelligently and voluntarily waived those rights. The court further found appellant‘s plea was knowingly and voluntarily made, appellant understood the nature of the charge, the effect of the plea as well as the penalties involved. The court also found aрpellant was advised of his right of appeal.
{¶ 22} Based upon the foregoing, we find the trial court substantially complied with
Third Potential Assignment of Error
{¶ 23} Appellant argues the trial court committed plain error by ordering him to pay the costs of confinement and assigned counsel fees.
{¶ 24} The reсord reveals appellant did not object, at the time of sentencing, to the imposition of costs. An appellate court need not consider an error which was not called to the trial court‘s attention when the error could have been avoided or corrected by the trial court. State v. Carter, 89 Ohio St.3d 593, 598, 734 N.E.2d 345 (2000). Thus, the error is waived absent plain error. Id. “Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.” State v. Wogenstahl, 75 Ohio St.3d 344, 357, 662 N.E.2d 311 (1996).
{¶ 25}
{¶ 26} Clear and convincing evidence is that degree of proof which is more than a mere “preponderance of the evidence,” but not of such certainty that is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief as to the facts sought to be established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 27} Here, the trial court found appellant had or reasonably would be expected to have the ability to pay all or a part of the costs of confinement and assigned counsel as well as supervision and prosecution. The record contains evidence that appellant was 22 years old at the time of sentencing, he could rеad and write English and he had graduated from high school. The record further reveals appellant was single with no dependents, he had no previous criminal record and he had been employed as a real estate agent in Kentucky making $500 a weеk.
{¶ 28} We conclude the trial court‘s finding that appellant had or may be expected to have the means to pay the costs of confinement and appointed counsel is supported by clear and convincing evidence in the record. Given the circumstances that appellant was sentenced to less than one year in prison and he is a high school graduate with prior work experience, it was not plain error for the trial court to order appellant to pay the costs of confinement and appointed counsel. Accordingly, the third potential assignment of error is not well-taken.
{¶ 30} The judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
Thomas J. Osowik, J.
James D. Jensen, P.J.
CONCUR.
JUDGE
JUDGE
JUDGE