State v. GreenState v. Green
OPINION
Rendered on the 8th day of January, 2021.
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SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Assistant Prosecuting Attorney, Champaign County Prosecutor‘s Office, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
ANTOINETTE DILLARD, Atty. Reg. No. 0083191, 117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
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WELBAUM, J.
{¶ 2} After reviewing Green‘s pro se arguments and his counsel‘s potential assignment of error, we find that they all lack arguable merit. Furthermore, after conducting an independent review of the record as required by Anders, we find that there are no issues with arguable merit for Green to advance on appeal. Therefore, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 3} On September 9, 2019, a Champaign County grand jury indicted Green on two third-degree-felony counts of OVI—one count in violation of
{¶ 4} The charges arose from an incident at the Champaign County Fairgrounds on August 3, 2019. Bystanders at the fairgrounds reported a black Chevy Silverado striking another vehicle in the parking lot and then driving away to a camping area at the fairgrounds, where the vehicle continued to drive recklessly. When law enforcement officers arrived at the scene, the driver of the Chevy, Green, refused to submit to any testing for intoxication. Green, however, admitted that he had consumed four or five beers. Thereafter, the investigating officers observed a cooler inside of Green‘s vehicle that contained several cans of Bud Light and a Styrofoam cup that smelled of beer. Green was then taken into custody and charged with the aforementioned OVI offenses and repeat offender specifications.
{¶ 5} Following his indictment, Green was released on bond. While awaiting his arraignment hearing, Green was taken back into custody after he caused a traffic accident on September 17, 2019. It was reported that Green collided with an oncoming vehicle after he ran a stop sign at the intersection of Three Mile Road and East State Route 29 in Champaign County. The oncoming vehicle contained three occupants who were physically injured as a result of the collision. When law enforcement arrived at the scene, the investigating officers detected a strong odor of an alcoholic beverage on Green‘s person. Green refused any testing for intoxication, but admitted that he had consumed five beers. Thereafter, the officers discovered several opened cans of Bud Light in the front-passenger compartment of Green‘s vehicle.
{¶ 6} After the traffic accident, Green was charged with several offenses in the Champaign County Municipal Court, including OVI in violation of
{¶ 7} On December 20, 2019, Green entered into a plea agreement with the State whereby he agreed to plead guilty to one of the OVI counts with a repeat offender specification; one of the aggravated vehicular assault counts, and two of the vehicular assault counts. In exchange for his guilty plea, the State agreed to dismiss the remaining charges and specifications and to recommend a presentence investigation (“PSI“). The State also agreed to recommend a total term of 19 years in prison if the PSI did not reveal any unknown information regarding Green‘s criminal history. The State further agreed to remove language from the vehicular assault charges stating that he was driving under suspension during the offenses, which ultimately amended the vehicular assault counts from third- to fourth-degree felonies. See
{¶ 8} After a
{¶ 9} Greene now appeals from his conviction. As previously noted, Green‘s appellate counsel filed an Anders brief that raised one potential assignment of error challenging the validity of Green‘s guilty plea. Green also filed a pro se brief that challenged his sentence and the indicted charges. We will address each of these claims separately.
Standard of Review
{¶ 10} In Anders cases, we are charged with conducting an independent review of the record “to determine whether any issues involving potentially reversible error that are raised by appellate counsel or by a defendant in his pro se brief are ‘wholly frivolous.’ ” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7, quoting Anders, 386 U.S. at 744. An issue is wholly frivolous if it lacks arguable merit, meaning that “on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.” Id. at ¶ 8, citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. If we find that any issue—whether presented by appellate counsel, presented by the appellant, or found through an independent analysis—is not wholly frivolous, we must appoint different appellate counsel to represent the appellant. Id. at ¶ 7, citing Pullen.
Counsel‘s Potential Assignment of Error
{¶ 11} As a potential assignment of error, Green‘s appellate counsel suggested that this court review whether the trial court failed to comply with
{¶ 12} “Ohio‘s
{¶ 13} Pursuant to
- Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
- Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
- Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶ 14} Generally speaking, “a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of
{¶ 15} The first exception is that the trial court must comply strictly with
{¶ 16} The second exception is that “a trial court‘s complete failure to comply with a portion of
{¶ 17} We have reviewed the transcript of the plea hearing in this case and find that the trial court fully complied with
{¶ 18} With regard to the penalty, the trial court advised Green that, upon pleading guilty, he would be receiving a prison term for his offenses. The trial court ensured that Green understood that the prison terms for aggravated vehicular assault and the repeat OVI offender specification were mandatory. The trial court then correctly advised Green that if maximum, consecutive prison sentences were imposed, he would be required to serve 5 years in prison for the repeat OVI offender specification plus an aggregate term of 14 to 18 years in prison for his offenses, meaning that he would be required to serve at least 19 years in prison.
{¶ 19} The trial court also explained that once Green served the five-year prison term for the specification and the aggregate 14-year minimum prison term for the offenses, there was a presumption that he would be released from prison. However, the trial court advised that the presumption for release could be rebutted by the prison system. The trial court explained that if the presumption for release were successfully rebutted, Green could be retained in prison up to the aggregate 18-year maximum prison term.
{¶ 20} The trial court further advised Green that he was not eligible for judicial release or earned reduction of the minimum prison term, and that post-release control was mandatory for three years. The trial court then advised Green that a license suspension was mandatory for all of his offenses and that the maximum suspension he could receive would be for his lifetime. The trial court additionally explained to Green that he faced a mandatory fine of $1,350 to $10,500 for his OVI offense, and that the total, maximum fine he could receive for all of his offenses amounted to $35,500. Green was
{¶ 21} For the foregoing reasons, we find that the trial court complied with all the requirements under
{¶ 22} Therefore, because the record establishes that the trial court complied with all the requirements for accepting guilty pleas under
Green‘s Pro Se Arguments
{¶ 23} In his pro se brief, Green challenges the trial court‘s decision to impose maximum, consecutive sentences. According to Green, the trial court should not have been permitted to consider his criminal history when sentencing him. Green also claims that his 13-count indictment was excessive and unfair. For the following reasons, we find that both of Green‘s claims lack arguable merit.
Maximum Consecutive Sentences
{¶ 24} When reviewing felony sentences, this court must apply the standard of review set forth in
{¶ 25} With regard to consecutive sentences, “a trial court is required to make the findings mandated by
- 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. - 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. - The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 26} “[W]here a trial court properly makes the findings mandated by
{¶ 27} After reviewing the record, we find that the trial court made all the required consecutive-sentence findings under
{¶ 28} We do not clearly and convincingly find that the record fails to support the aforementioned consecutive-sentence findings. First and foremost, the record establishes that Green had an extensive criminal history. Green argues that the trial court should not have been able to consider his criminal history when sentencing him, but Green is wrong. Pursuant to
{¶ 29} Here, Green‘s PSI report established that, between 1987 and 2009, Green acquired ten OVI convictions in six different counties. The information pertaining to each of those convictions is set forth in the following table:
| Year | Offense | County | Sentence |
|---|---|---|---|
| 1987 | OVI – M1 | Champaign County | 3-day jail term1 |
| 1988 | OVI – M1 | Champaign County | 3-day jail term2 |
| 1994 | OVI – M1 | Champaign County | 10-day jail term |
| 1994 | OVI – M1 | Clark County | Unknown |
| 1998 | OVI – M1 | Champaign County | Fines, costs, and substance abuse treatment |
| 1999 | OVI – F4 | Preble County | 4 years community control (community control revoked in 2002) |
| 2002 | OVI – M1 | Delaware County | 30-day jail term and 5 years community control (community control revoked in 2005) |
| 2004 | OVI – F4 | Clinton County | 12-month prison term |
| 2007 | OVI – F4 | Fayette County | 6-month prison term |
| 2009 | OVI – F3 | Clark County | 4-year prison term |
{¶ 30} In addition to his ten prior OVI convictions, Green had a 2001 felony conviction for assault on a peace officer for which he served 16 months in prison. Green also had a 1997 felony conviction for disrupting public service for which he was sentenced to 3 years of community control. Green‘s community control, however, was revoked in 2000, and Green was required to serve 10 months in prison. Over the years, Green also acquired multiple misdemeanor convictions for domestic violence and disorderly conduct.
{¶ 31} The record also established that Green did not take his alcoholism seriously and was a danger to society. Green advised the trial court that he first recognized his substance abuse problem in 2000, yet he continued to acquire several OVIs between 2000 and 2009. Moreover, despite being imprisoned and having his driver‘s license suspended multiple times, Green continued his conduct of driving while intoxicated when he should not have been driving at all. The record also indicated that Green had sought minimal treatment for his substance abuse problem. Prior to the incidents in question, other than prison programming, Green only attended outpatient treatment between May
{¶ 32} We also find it significant that the two OVI incidents for which Green was charged in this case happened within a mere seven weeks of each other, with the second incident happening while Green was out on bond. During the second incident—the traffic accident—Green‘s intoxicated driving injured multiple people. One of the victims was a 12-year-old boy who, in addition to other injuries, suffered a broken nose and received a permanent scar below his lip. The boy‘s mother, who was also in the vehicle, suffered bruised ribs, tissue damage, and a broken thumb. Because the mother could not work as a result of her injuries, she lost her job and then suffered from depression and mental anguish. The mother‘s boyfriend, who was also injured, advised the trial court that as a result of the accident he had to miss work to take care of the mother and her son, which resulted in him being unable to pay his rent and losing his apartment.
{¶ 33} For all the foregoing reasons, any contention that the record failed to support the trial court‘s consecutive-sentence findings under
{¶ 34} We also do not clearly and convincingly find that the trial court‘s sentencing decision was otherwise contrary to law. “A sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{¶ 35} In this case, the record of the sentencing hearing and the sentencing entry indicate that prior to issuing its sentencing decision, the trial court considered the purposes and principles of felony sentencing in
{¶ 36} For the foregoing reasons, Green‘s argument challenging the trial court‘s decision to impose maximum, consecutive sentences lacks arguable merit.
Indicted Charges
{¶ 37} Green also claims that the 13 charges in his indictment were excessive and unfair. However, “by entering a voluntary guilty plea while represented by competent counsel, [Green] waived his right to appeal all non[-]jurisdictional defects in prior stages of the proceedings.” (Citations omitted.) State v. Guerra, 2d Dist. Miami No. 2015-CA-28, 2016-Ohio-5647, ¶ 9. Therefore, Green has waived the right to appeal any alleged defects in his indictment, including that the charges in the indictment were excessive. See State v. Black, 8th Dist. Cuyahoga No. 102586, 2017-Ohio-953, ¶ 9 (a guilty plea
Conclusion
{¶ 38} For the foregoing reasons, counsel‘s potential assignment of error and Green‘s pro se arguments lack arguable merit. Furthermore, after conducting an independent review of the record as required by Anders, we find that there are no issues with arguable merit for Green to advance on appeal. Therefore, the judgment of the trial court is affirmed.
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TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Samantha B. Whetherholt
Antoinette Dillard
Michael Raymond Green
Hon. Nick A. Selvaggio