STATE OF OHIO v. RICHARD JEFFREY HART
CASE NO. 14 BE 0025
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 14, 2016
2016-Ohio-1008
Hоn. Mary DeGenaro, Hon. Cheryl L. Waite, Hon. Carol Ann Robb
Criminal Appeal from Court of Common Pleas of Belmont County, Ohio, Case No. 12 CR 209; CHARACTER OF PROCEEDINGS: Criminal Appeal; JUDGMENT: Motion sustained. Judgment Affirmed.
For Plaintiff-Appellee Attorney Daniel P. Fry, Belmont County Prosecutor, Attorney Helen Yonak, Assistant Prosecutor, 147 West Main Street, St. Clairsville, Ohio 43950
For Defendant-Appellant Attorney Desirae DePiero, 7330 Market Street, Youngstown, Ohio 44512
{¶1} Defendant-Appellant, Richard Jeffrey Hart, appeals the judgment of the Belmont County Court of Common Pleas convicting him of two counts of rape and one count of sexual battery and sentencing him accordingly. Appointed appellate counsel for Hart has filed a no-merit brief and a request to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970). For the following reasons, this court sustains counsel‘s motion to withdraw and affirms the judgment of the trial court.
{¶2} Hart was accused of raping his step-daughter over a period of years. As a result, he was indicted on one count of rape of a victim under 13 years old,
{¶3} Hart later entered into a
{¶4} During sentencing, the State recommended maximum consecutive sentences. The trial court addressed Hart and gave him the opportunity to make a statement in mitigation of punishment. Hart stated that he believed he was innocent but had entered the guilty plea because he believed accepting the plea bargain was in his best interests. The trial court confirmed Hart‘s understanding that it had found him guilty of the charges.
{¶5} The trial court read part of the victim impact statement into the record:
And I‘m quoting. Quote: “I just wanted to thank you for ruining my childhood and most of my teenage years. Thank you for showing me how messed up and sick a so-called human being can be. Thank you for giving me such an awful and dreadful life, so now that I can truly understand what being а normal teenage girl is really like. And once again, thank you for keeping me away from my loving family, because now I have them, and I know what it is like to have a loving and supportive family that you never wanted me to have. I hope you get it through your sick twisted mind that I never loved you. It was аll lie [sic].”
{¶6} After considering, among other things, the record, victim impact letters, statements made at sentencing, the purposes and principles of sentencing under
{¶7} An attorney appointed to represent an indigent criminal defendant may
{¶8} Counsel filed a no-merit brief and we granted Hart 30 days to file a pro se brief, which to date, he has failed to file. In the typical Anders case involving a guilty plea, the only issues that can be reviewed relate to the plea or the sentence. See, e.g., State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, ¶ 11.
{¶9} A guilty plea must be made knowingly, voluntarily and intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7. If it is not, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntarinеss of a plea, this court must consider all of the relevant circumstances surrounding it. State v. Johnson, 7th Dist. No. 07 MA 8, 2008-Ohio-1065, ¶ 8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
{¶10} The trial court must engage in a
{¶11} The constitutional rights the defendant must be notified of are the right
{¶12} The nonconstitutional rights the defendant must be informed of are the effect of his plea, the nature of the charges, and the maximum penalty, which includes an advisement on post-release control if applicable. Further, a defendant must be notified, if applicable, that he is not eligible for probation or the imposition of community control sanctions. Finally, this encompasses notifying the defendant that the court may proceed to judgment and sentence after accеpting the guilty plea.
{¶13} The trial court‘s advisement of Hart‘s constitutional rights strictly complied with
{¶14} The unique aspect of the plea hearing was that Hart entered a plea in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), where the defendant asserts he did not commit the crime but pleаds guilty.
An Alford plea is “merely a species of guilty plea” and is “procedurally indistinguishable” from a guilty plea. State v. Carter, 124 Ohio App.3d 423, 429, 706 N.E.2d 409 (2d Dist.1997); State v. Nguyen, 6th Dist. No. L-05-1369, 2007-Ohio-2034, ¶ 18. “The defendant‘s purpose for entering an Alford plea is to avoid the risk of a longer sentence by agreeing to plead guilty to a lesser offense or for fear of the consequences of a jury trial, or both.” State v. Bailey, 1st Dist. No. C-030916, 2004-Ohio-6427, ¶ 7. A trial cоurt may accept a guilty plea containing a protestation of innocence when “a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” Alford at 37.
By entering an Alford plea the defendаnt waives review of all alleged errors, except those errors that may have affected the entry of the plea pursuant to
Crim.R. 11 . Nguyen, supra, at ¶ 18; State v. Lewis, 7th Dist. No. 97-CA-161 (July 30, 1999).
State v. Baker, 7th Dist. No. 12 MA 32, 2013-Ohio-862, ¶ 8-9.
{¶15} The colloquy here began with the trial court asking Hart if he was making the plea because he believed the consequences of going to trial were too great compared with the consequences of pleading. Hart acknowledged that these were the reasons he was making the Alford plea and that he understood that by entering the plea he would be treated as guilty in all respects. The prosecutor made a brief factual explanation to substantiate the proof of guilt. Finally, the trial court made findings on the record that the Alford plea was not a result of coercion, deception or intimidation; that counsel was present at the time of the plea; that counsel‘s advice
{¶16} This Court is currently split as to the standard of review to apply in felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014-Ohio-919, which applied the two-part test set forth in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, and State v. Wellington, 7th Dist. No. 14 MA 115, 2015-Ohio-1359, which applied
{¶17} Hart was afforded his allocution rights pursuant to
{¶18} The 25 year prison sentence Hart received is within the 10 to 25 year range for the charges. See former
{¶19} With regard to consecutive sentences, the provisions of H.B. 86, codified as
{¶20} Based on
{¶21} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. However, a trial court need not state reasons to support its findings nor is it required to use any “magic” or “talismanic” words, so long as it is apparent that the court conducted the proper analysis. State v. Jones, 7th Dist. No. 13 MA 101, 2014-Ohio-2248, ¶ 6; see also Bonnell, at ¶ 37. Post-Bonnell, we may liberally review the entirety of the sentencing transcript to discern whether the trial court made the requisite findings. Bonnell at ¶ 29. However, as demonstrated by the outcome in Bonnell—the Supreme Court reversed and remanded Bonnell‘s sentence because the trial court failed to make a proportionality finding—there are limits to that deference. Bonnell at ¶ 33-34. After a reviewing court determines the findings have been made, the court “must also determine whether the record contains evidence in support of the trial court‘s findings.” State v. Correa, 7th Dist. 13 MA 23, 2015-Ohio-3955, ¶ 76, citing Bonnell at ¶ 29.
{¶22} Here, the trial court made the following findings with regard to the imposition of consecutive sentences during the hearing:
This Court has reviewed the statutes on this matter. And specifically,
2929.41(A) and2929.14(C)(4) .This Court believes, pursuant to those statutes, that the harm is so great and unusual, that a single term does not reflect adequately the seriousness of the conduct. And two, the сriminal - - the offender‘s criminal history shows that consecutive terms are needed to protect the public.
I accordingly order that those terms be served consecutively and not concurrently, for a total of 25 years.
Quite bluntly, if the law permitted it, I would be sentencing you to more than 25 years, but that is the maximum permitted under the law.
{¶23} The sentencing entry reiterated the statutory findings.
{¶24} The trial court made findings sufficient to support the imposition of consecutive sentences pursuant to
{¶25} In sum, because the record contains no apparent errors, counsel is permitted to withdraw and the judgment of the trial court is affirmed.
Waite, J., concurs.
Robb, J., concurs.