STATE OF OHIO, Plаintiff-Appellee, v. JOHN A. MANYO, SR., Defendant-Appellant.
CASE NO. 2022-A-0058
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
January 30, 2023
[Cite as State v. Manyo, 2023-Ohio-267.]
Criminal Appeal from the Court of Common Pleas, Trial Court No. 2018 CR 00811. Judgment: Affirmed.
Michael J. Ledenko, Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).
OPINION
MATT LYNCH, J.
{1} Defendant-appellаnt, John A. Manyo, Sr., appeals his convictions and/or sentences for Abduction and Domestic Violence, in the Ashtabula County Court of Common Pleas. For the following reasons, the judgment of the lower court is affirmed.
{2} On May 31, 2022, Manyo entered a plea of guilty, by way of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.E.2d 162 (1970), to Abduction, a felony of the third degree in violation of
{3} At the plea colloquy, the trial court advised Manyo that “it‘s usually necessary for the person to admit that they have committed the crime,” but “a limited exception exists under the Alford doctrine where the defendant does not have to admit guilt * * * but enters a plea of guilty and will be found guilty.” The court determined that Manyo wished to enter a plea of guilty by way of Alford in order to avoid the consequences of trial and the potential penalties.
{4} The trial court advised Manyo that postrelease control was discretionary for a period of up to two years.
{5} The State provided the following factual basis for the plea:
This is from а statement that the victim * * * gave to the Ashtabula Police. This was December 15th, 2018, in the City of Ashtabula, County of Ashtabula, State of Ohio. “John came over at 10 p.m. with lots of anger and energy and started saying that another guy was in my house. There was not. He said you better tell me or I‘ll cut your pinkie off. He repeatedly poked my leg with his knife. Held the knife to my temple, and sаid he was going to slide it into my neck. All the while I was holding our two-year-old daughter and my six-year-old sleeping right next to me on the couch. He took the clock off the wall, because he said I kept looking at it and hit me in the head with it at least” - I thought I had the rest of that page, which I apologize - but he proceeded then to hold [the victim] and the children fоr several hours. Then afterwards, she went to Ashtabula hospital where then the defendant was apprehended by police there, based on things that [the victim] had said to them and also admissions he made to the police, regarding domestic violence and abduction.
{6} The State acknowledged that the victim did not wish the prosecution of Manyo to go forward.
{8} The State recommended that Manyo receive a community control sanction that included “some type of sentence at NEOCAP.”
{9} Before imposing sentence, the trial court addressed Manyo:
The Court notes that you do have a prior criminal record at the adult level * * *. However, this is the first felony conviction here, * * * and you have not been to prison in the past. You have a moderate ORAS [Ohio Risk Assessment System] score, as mentioned by your counsel. Now, you didn‘t show up here in this case, it looks like on June 26th, 20191. At that time the Court issued a warrant for your arrest, based upon a State motion and you were picked up on that warrant [on] May 6th of 2022. So about two and a half years there was a warrant that existеd for you. * * * And the concern here, Mr. Manyo, that the Court has is [that you are] not responding favorably to sanctions that were previously imposed and then you continue to commit crime. * * * The Court also understands that per the plea agreement and as stated here, the victim in this matter did want this case to be dismissed, but the State chose to move forward and the Court further notes that there was a prior Domestic Violence conviction with the same victim and [a] no contact order was previously imposed with the same victim. These are serious crimes. The Court further understands that the State and the defense are jointly recommending community control [sanctions] to the Court. * * * However, for the reasons that the Court placed on the record here today, the Court is not going to follow the joint recommendation.
Now, the Court further finds that community control would demean the seriousness of the conduct in this case and its impact upon the victim and would not adequately protect the public. Therefore, a sentence of imprisonment is cоmmensurate with the seriousness of the defendant‘s conduct and a prison sentence does not place an unnecessary burden on the State.
{10} The trial court then imposed a prison term of twenty-four months for Abduction and a concurrent prison term of sixteen months for Domestic Violence.
{11} On June 28, 2022, the sentencing court issued a written sentencing Judgment Entry.
{12} On July 22, 2022, Manyo filed a Notice of Appeal.
{13} On October 27, 2022, counsel for Manyo filed a Motion to Withdraw as Appellate Counsel and Anders Brief. Counsel‘s Motion to Withdraw stated: “Counsel has thoroughly and conscientiously reviewed the record and relevant case law in this matter. It is Counsel‘s opinion that this appeal is wholly frivolous pursuant to the Anders brief filed with this Court. Counsel seeks leave to withdraw.”
{14} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appеllate counsel must conduct a conscientious examination of the case and, if the appeal is found to be wholly frivolous, counsel should so advise the court and request permission to withdraw. “A ‘frivolous’ appeal pursuant to Anders is ‘one that presents issues lacking in arguable merit.‘” (Citation omitted.) State v. Pal, 11th Dist. Ashtabula No. 2021-A-0007, 2021-Ohio-3706, ¶ 16. “An issue lacks arguable merit if, on the fаcts and law involved, no responsible contention can be made that it offers a basis for reversal.” (Citation omitted.) Id. The appellant is furnished with a copy of the Anders brief and given the opportunity to raise additional issues. Thereafter, this court must review the entire record to determine whether the appeal is wholly frivolous. If this court
{15} Manyo has not raised additional issues for review. Accordingly, we will proceed to consider counsel‘s proposed assignment of error: “The trial court erred in imposing a prison sentence on defendant-appellant, John Manyo, instead of community control sanctions as recommended by both the State of Ohio and Mr. Manyo‘s trial counsel.”
{16} When sentencing a defendant for a third-degree felony or a fourth-degree felony that is an offense of violence such as are at issue in the present case, “the trial court has discretion to impose either a prison term under
{18} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence * * * if it clearly and convincingly finds * * * [t]hat the sentence is * * * contrary to law.”
{19} In the present case, the trial court imposed prison terms - twenty-four months for Abduction and sixteen months for Domestic Violence - within the statutory ranges for third- and fourth-degree felonies.
{20} Furthermore, we find no error in the trial court‘s decision to impose prison terms rather than community control sanctions as recommended by both counsel for Manyo and the prosecutor for the State. It is well-established that “trial courts may reject plea agreements and that they are not bound by a jointly recommended sentence.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28. “A trial court does not err by imposing a sentence greater than ‘that forming the induсement for the defendant to plead guilty when the trial court forewarns the defendant of the applicable penalties, including the possibility of imposing a greater sentence than that recommended by the prosecutor.‘” (Citation omitted.) State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6.
{21} In the present case, Manyo was duly forewarned that the trial court would not be bound by the jointly recommended sentence. The Written Plea of Guilty and Plea Agreement stated: “I understand that any recommendation of sentence to the Court by the State is not binding in any way on the Court and that any sentence to be imposed is in the sole discretion of the Court.” Similarly, Manyo was advised during the plea colloquy that “the Court is not bound to any agreed sentence between you and the State of Ohio.”
{22} Accordingly, we find no error in the trial court‘s decision to impose a prison term instead of community control sanctions. The proposed assignment of error is without merit.
{24} The Ohio Supreme Court has often emphasized that “[t]he best way to ensure that pleas are entered knowingly and voluntarily is simply to follow the requirements of Crim.R. 11 when deciding whether to accept a plea agreement.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. The essential requirements for accepting a plea in a felony case are: “(a) 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 the for the imposition of community control sanctions at the sentеncing hearing“; “(b) 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“; and “(c) 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 guilty beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
{26} Under the traditional rule, “a defendant is not entitled to have his plea vacated unless he demonstratеs he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C).” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 16. “The test for prejudice is ‘whether the plea would have otherwise been made.‘” Id., citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). An exception to the prejudice requirement was established in Sarkozy: “a trial court‘s complete failure to comply with a portion of Crim.R. 11(C) eliminates the defendant‘s burden to show рrejudice.” Id. at ¶ 15. The rule in Sarkozy applies to non-constitutional aspects of the plea colloquy, such as the requirement that the defendant understand the maximum penalty involved. Id. at ¶ 23 (“the maximum-penalty advisement is not a constitutional requirement“). However, in order to obviate the need to show prejudice, the failure to comply with some aspect of Criminal Rule 11 must be complete.
{28} Under the facts of the present case, there is no colorable basis on which to argue that Manyo would not have entered his plea had the trial court properly advised him regarding postrelease control at the plea colloquy. Prior to sentencing, the court explained the error to Manyo, determined that trial counsel had also explained the error, and presented him with an Amended Written Plea of Guilty and Plea Agreement which he initialed. Only then did the court proceed to sentencing. In finding a lack of arguable merit in a challenge to the validity of Manyo‘s plea, we are not holding that a trial court may cure a deficiency in the plea colloquy by later presenting the defendant with an amended or corrected written agreement. Nor are we holding that a defendant waives the right to challenge his plea if he fails to object or сhallenge the plea at sentencing. We are holding that, on the face of the record before us, there are no arguable grounds on which to claim that Manyo was prejudiced by the misinformation regarding postrelease
{29} Finally, we briefly consider the validity of Manyo‘s Alford plea. “A plea enterеd pursuant to Alford is a plea that permits a defendant to plead legal guilt, yet maintain his or her factual innocence.” State v. Bilicic, 11th Dist. Ashtabula No. 2017-A-0066, 2018-Ohio-5377, ¶ 7. “Before accepting an Alford plea, ‘[t]he trial judge must ascertain that notwithstanding the defendant‘s protestations of innocence, he has made a rational calculation that it is in his best interest to acceрt the plea bargain offered by the prosecutor.‘” (Citation omitted.) Id.
{30} In the present case, the trial court ascertained that Manyo wished to enter an Alford plea because he feared the consequences of trial and the potential for greater penalties. Accordingly, we find that the requirements for entering an Alford plea were satisfied.
{31} There are no issues with respect to the guilty plea by way of Alford meriting appeal.
{32} Having independently reviewed the record, we conclude that the present appeal is wholly frivolous. Counsel‘s motion to withdraw is granted, and the judgment of the Ashtabula County Court of Common Pleas is affirmed.
JOHN J. EKLUND, P.J.,
MARY JANE TRAPP, J.,
concur.