State v. MackState v. Mack
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney; Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Megan Graff, 100 Federal Plaza East, Suite 926, Youngstown, Ohio 44503
{¶ 1} Defendant-appellant Kimberly Mack appeals from her conviction and sentence entered in the Mahoning County Common Pleas Court for two counts of aggravated vehicular homicide. Appointed appellate counsel filed a no merit brief and requested leave to withdraw. A review of the case file and brief reveals that there are no appealable issues. Thus, the conviction and sentence are hereby affirmed and counsel’s motion to withdraw is granted.
STATEMENT OF CASE
{¶ 2} On August 26, 2010, Mack was indicted on two counts of vehicular homicide in violation of
ANALYSIS
{¶ 3} When appellate counsel seeks to withdraw and discloses that there are no meritorious arguments for appeal, the filing is known as a no merit or an Anders brief. Anders v. California (1967), 386 U.S. 738. In this district, it has also been called a Toney brief. State v. Toney (1970), 23 Ohio App.2d 203.
{¶ 4} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent’s appeal is frivolous:
{¶ 5} “3. Where court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent’s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.
{¶ 7} “5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶ 8} “* * *
{¶ 9} “7. Where the Court of Appeals determines that an indigent’s appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.” Id. at syllabus.
{¶ 10} The no merit brief was filed by counsel on June 17, 2011. On June 24, 2011, this court informed Mack of counsel’s no merit brief and granted her 30 days to file her own written brief. 06/24/11 J.E. Mack has not filed a pro se brief. Thus, the analysis will proceed with an independent examination of the record to determine if the appeal is frivolous.
{¶ 11} The no merit brief reviews the suppression ruling, the guilty plea, counsel’s performance, and the sentence issued by the court. In reviewing each of these areas, counsel concludes that the appeal is frivolous.
{¶ 12} This court’s independent review of the file reveals that these are the only possible arguments that could be made in this appeal. As such, each will be reviewed in turn.
Suppression Ruling
{¶ 13} Since a guilty plea waives any alleged error that occurred in the suppression ruling, Mack waived the right to appeal the suppression ruling. State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶13. Thus, there is no appealable issue regarding the suppression ruling.
Plea
{¶ 14}
{¶ 15} The nonconstitutional rights that the defendant must be informed of are: 1) the nature of the charges; 2) the maximum penalty involved, which includes, if applicable, an advisement on postrelease control; 3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions, and 4) that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing.
{¶ 16} The trial court’s advisement on the constitutional rights strictly complied with
{¶ 17} As to the
{¶ 18} As to the last
{¶ 19} Therefore, considering all the above, we find that the plea colloquy complied with
Counsel’s Performance
{¶ 20} A guilty plea waives ineffective assistance of counsel claims for defects that occur prior to the guilty plea. State v. Maguire, 7th Dist. No. 08MA188, 2009-Ohio-4393, ¶18. However, it does not waive any defects that occur after the guilty plea. Therefore, only counsel’s performance following the guilty plea is reviewed.
{¶ 21} To prove an allegation of ineffective assistance of counsel, the two-prong Strickland test must be met. Strickland v. Washington (1984), 466 U.S. 668. First,
{¶ 22} A review of the record reveals that following her plea there are no plausible arguments that counsel provided ineffective representation. Furthermore, as is discussed below, the sentence was within the permissible range and Mack did not receive the maximum penalty allowable by law. Thus, we cannot find that either counsel’s performance was deficient or prejudiced Mack. There are no appealable issues regarding counsel’s performance.
Sentencing
{¶ 23} We review felony sentences using both the clearly and convincingly contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. We first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. Gratz, supra, at ¶8, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶13-14. Then, if it is not clearly and convincingly contrary to law, we must determine whether the sentencing court abused its discretion in applying the factors in
{¶ 24} Here, Mack pled guilty to two counts of second-degree felony vehicular homicide. For purposes of sentencing, the trial court recognized that the two counts merged. 02/24/11 Sentencing Tr. 17. The trial court sentenced Mack to a six year term of incarceration. 02/24/11 Sentencing Tr. 17; 03/02/11 J.E. This sentence is within the sentencing range of one, two, three, four, five, six, seven or eights years for a second-degree felony permitted by
{¶ 26} “The Court considered the record, presentence investigation report, oral statements, as well as the principles and purpose of sentencing under
{¶ 27} At the sentencing hearing, the trial court made the following statement:
{¶ 28} “All right. Miss Mack, as I indicated to you, we ordered a background done on you, okay, and I have the background here, and your lawyer has reviewed it as had the prosecutor, and going back as far as 1991, you had a felony on your record for forgery and for theft, and after that, subsequent to that you were found guilty of a probation violation on that case, you had disorderly conduct, drug abuse, marijuana, falsification, unauthorized use of a motor vehicle, theft, and then this case, and at the time of this incident, the Youngstown Police Department took you down and they gave you the test, and you took the test for alcohol and you blew a .202. That’s almost three times the limit, and yet you got behind the wheel of a car. And you didn’t knock him [the victim, James Jackson] down. You went over him.
{¶ 29} “Taking everything into consideration – and I am in receipt of the – Minister Marcia Walker’s letter. It arrived today prior to sentencing, and I’ve reviewed that also along with the correspondence that you have sent in. But taking it all into consideration, it is going to be the order of the court – and recognizing that the sentencing on the two counts merge for purposes of sentencing, so it will be the order of the court the defendant will be sentenced a six-year stay in Lorain – or Marysville Correction Facility for Women.” 02/24/11 Sentencing Tr. 16-17.
{¶ 30} This statement demonstrates the trial court’s consideration of the purposes and principles of sentencing in
CONCLUSION
{¶ 32} For the foregoing reasons, the judgment of the trial court is hereby affirmed and counsel’s motion to withdraw is granted.
Donofrio, J.,
Waite, P.J.,