State v. KeinathState v. Keinath
Decided: October 26, 2012
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Nancy L. Jennings, for appellant.
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YARBROUGH, J.
Introduction
{¶1} This is an Anders appeal. Appellant, Jason M. Keinath, appeals from a judgment of the Ottawa County Court of Common Pleas. Appellant pleaded guilty to operating a motor vehicle while intoxicated (“OMVI“), a first degree misdemeanor in
Facts and Procedural Background
{¶2} On February 19, 2009, appellant drove a vehicle into a canal in Nugent‘s Canal, Ottawa County, Ohio. The Ottawa County Sherriff‘s Department responded to the scene, and appellant admitted that he had consumed alcohol at the Lagoon Saloon. Appellant and his female passenger were transported to the Ottawa County Detention Facility where appellant submitted to a breath test which indicated his blood alcohol content was .092. Appellant was indicted on two felony counts of aggravated vehicular assault, felonies of the second and third degree, in violation of
Anders Appeal
{¶3} Anders, supra and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978), set forth the procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines it to be wholly frivolous he should so advise the court and request permission to withdraw. Anders at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish his client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that he chooses. Id. Once these requirements have been satisfied, the appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is frivolous, it may grant counsel‘s request to withdraw and dismiss the appeal without violating constitutional requirements or may proceed to a decision on the merits if state law so requires. Id.
{¶4} In this case, appointed counsel for appellant has satisfied the requirements set forth in Anders, supra. This court further notes that appellant has not filed a pro se brief or otherwise responded to counsel‘s request to withdraw. Accordingly, this court shall proceed with an examination of the potential assignments of error set forth by counsel for
Assignments of Error
{¶5} In his Anders brief, appellant‘s counsel raises the following potential assignments of error:
- THE TRIAL COURT ERRED IN ACCEPTING APPELLANT‘S PLEA.
- THE TRIAL COURT ABUSED ITS DISCRETION WHEN SENTENCING APPELLANT.
Appellant‘s Plea
{¶6} In his first potential assignment of error, appellant argues that his plea was not knowingly, intelligently, or voluntarily entered. We disagree, but for different reasons than those addressed by counsel. Appellant‘s counsel argues that
{¶7}
In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas
without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty. (Emphasis added.)
{¶8}
(C) “Serious offense” means any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months.
(D) “Petty offense” means a misdemeanor other than serious offense.
{¶9} Appellant in this case faced a maximum of six months in jail, thus,
{¶10} To satisfy the requirement of informing a defendant of the effect of a plea, pursuant to
With reference to the offense or offenses to which the plea is entered:
(1) The plea of guilty is a complete admission of the defendant‘s guilt.
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(3) When a plea of guilty or no contest is accepted pursuant to this rule, the court, except as provided in divisions (C)(3) and (4) of this rule, shall proceed with sentencing under
Crim.R. 32 .
{¶11} In accepting the guilty pleas to the OMVI and criminal damaging offenses, the trial judge addressed appellant personally and stated: “I have the right to sentence you immediately today, but I don‘t intend to do that.” A few moments later, the trial court stated to appellant, “Do you understand if you plead guilty to this offense, you are making a complete admission that you did what the information says you did?”
{¶12} Finding that the trial court complied with
Appellant‘s Sentence
{¶13} Appellant‘s second proposed assignment of error asserts that his sentence is contrary to law.1 We apply an abuse of discretion standard of review to a suggestion that misdemeanor sentences are excessive. State v. Ostrander, 6th Dist. No. F-10-011, 2011-Ohio-3495, ¶ 28, citing State v. Cossack, 7th Dist. No. 08 MA 161, 2009-Ohio-3327, ¶ 20.
{¶14} In imposing a sentence for a misdemeanor offense, a trial court must consider the purposes and principles of misdemeanor sentencing as set forth in
{¶15} The purposes and principles of misdemeanor sentencing are to protect the public from future crime by the offender and others and to punish the offender.
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender has a history of persistent criminal activity and that the offender‘s character and condition reveal a substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender‘s history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender‘s conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;
(d) Whether the victim‘s youth, age, disability, or other factor made the victim particularly vulnerable to the offense or made the impact of the offense more serious;
(e) Whether the offender is likely to commit future crimes in general, in addition to the circumstances described in divisions (B)(1)(b) and (c) of this section.
{¶17} Appellant‘s driving record reveals that he had a prior conviction for an OMVI at the end of 2008. Accordingly, the trial court sentenced appellant pursuant to
(i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory jail term of ten consecutive days. * * *. The cumulative jail term imposed for the offense shall not exceed six months.
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(iii) In all cases, notwithstanding the fines set forth in Chapter 2929 of the Revised Code, a fine of not less than five hundred twenty-five and not more than one thousand six hundred twenty-five dollars;
(iv) In all cases, a class four license suspension of the offender‘s driver‘s license, commercial driver‘s license, temporary instruction permit,
probationary license, or nonresident operating privilege from the range specified in division (A)(4) of section 4510.02 of the Revised Code.2 * * *. (v) In all cases, if the vehicle is registered in the offender‘s name, immobilization of the vehicle involved in the offense for ninety days in accordance with section 4503.233 of the Revised Code and impoundment of the license plates of that vehicle for ninety days.
{¶18} In relation to the sentence imposed for appellant‘s criminal damaging conviction, the statutory guidelines for a second degree misdemeanor offense allow a trial court to sentence the offender to a maximum jail term of 90 days and to a maximum fine of $750.
{¶19} As to the OMVI, the trial court imposed 180 days in jail, and a fine of $525. A three years’ driver‘s license suspension was also imposed. For the criminal damaging offense, appellant was sentenced to 90 days in jail, to be served concurrently to the 180 days. Appellant was also given credit for 27 days previously served in custody.
{¶20} The trial court also stated that it had reviewed appellant‘s court history and criminal record which were contained in the pre-sentence investigation report. The trial
{¶21} Because appellant was sentenced within the applicable statutory guidelines and it is evident from the record that the trial court considered
{¶22} On consideration of the foregoing, we find that the trial court did not abuse its discretion by sentencing appellant. Accordingly, appellant‘s second proposed assignment of error is not well-taken.
Statute of Limitations
{¶23} Our independent review of the record reveals an issue that must be briefly addressed. The pre-sentence investigation report used by the trial court at sentencing contains a copy of a traffic citation dated February 19, 2009. The citation, along with an officer narrative, indicates that appellant was cited for OMVI in violation of
{¶24} For misdemeanor offenses, other than minor misdemeanors, a prosecution is barred unless it is commenced within two years from the date of the offense.
{¶25} Here, appellant pleaded guilty to the charges of OMVI and criminal damaging. A guilty plea entered pursuant to
CONCLUSION
{¶26} This court, as required under Anders, has undertaken our own examination of the record to determine whether any issue of arguable merit is presented for appeal. We have found none. Accordingly, we grant the motion of counsel to withdraw.
{¶27} The judgment of the Ottawa County Court of Common Pleas is affirmed. Costs are assessed to appellant pursuant to App.R. 24. The clerk is ordered to serve all parties, including the appellant if he has filed a brief, with notice of this decision.
Judgment Affirmed.
Arlene Singer, P.J. ____________________________
JUDGE
Thomas J. Osowik, J.
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Stephen A. Yarbrough, J. JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.