STATE OF OHIO, Plaintiff-Appellee v. MICHAEL DAVID MOORE, JR., Defendant-Appellant
Appellate Case No. 2019-CA-34
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
November 22, 2019
2019-Ohio-4806
WELBAUM, P.J.
Trial Court Case No. 2018-CR-828 (Criminal Appeal from Common Pleas Court)
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409 Attorney for Defendant-Appellant
O P I N I O N
Rendered on the 22nd day of November, 2019.
WELBAUM, P.J.
Facts and Course of Proceedings
{¶ 2} On December 26, 2018, the Clark County Grand Jury returned an indictment charging Moore with one count of theft of a motor vehicle in violation of
{¶ 3} Following his indictment, Moore entered into a plea agreement with the State. The plea agreement required Moore to plead guilty to a reduced charge of attempted theft in violation of
{¶ 4} On March 29, 2019, the matter proceeded to a plea hearing. During this hearing, the parties advised the trial court of their plea agreement. After being advised of the plea agreement, the trial court conducted a
{¶ 5} On April 24, 2019, Moore‘s case proceeded to sentencing. At the sentencing hearing, the trial court noted that West Central had not accepted Moore into its facility. Then, prior to issuing a sentence, the trial court noted that it had reviewed the PSI report and considered various factors, including the sentencing factors listed under
{¶ 6} Taking all of this into consideration, as well as the purposes and principles of felony sentencing set forth in
{¶ 7} Following his conviction for attempted theft, Moore filed the instant appeal. In proceeding with the appeal, Moore‘s appellate counsel filed a brief pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in which counsel asserted three potential assignments of error for review.
Standard of Review
{¶ 8} According to Anders, this court must conduct an independent review of the record to determine if the appeal at issue is wholly frivolous. Id. at 744. ”Anders equates a frivolous appeal with one that presents issues lacking in arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.” Id., citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4.
{¶ 9} If we determine the appeal is frivolous, we may grant counsel‘s request to withdraw and then dismiss the appeal without violating any constitutional requirements, or we can proceed to a decision on the merits if state law requires it. State v. McDaniel, 2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.
Potential Assignments of Error
{¶ 10} As previously noted, Moore‘s appellate counsel has raised three potential assignments of error for this court‘s review. Under the first potential assignment of error, counsel suggests that Moore‘s trial counsel provided ineffective assistance with regard to the plea agreement. After a thorough review of the record, we find this claim lacks arguable merit.
{¶ 11} “To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that counsel‘s performance was ‘seriously flawed and deficient,’ and there is a reasonable probability that the result of the defendant‘s trial or legal proceeding would have been different had defense counsel provided proper representation.” State v. Shakhmanov, 2d Dist. Montgomery No. 28009, 2019-Ohio-4598, ¶ 33, quoting State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 26, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 12} In this case, there is nothing in the record indicating that Moore‘s trial counsel performed deficiently while representing Moore during the plea negotiations. Instead, the record establishes that Moore‘s trial counsel negotiated a favorable plea agreement with the State that successfully reduced Moore‘s charge from a fourth-degree felony offense to a fifth-degree felony offense. Although Moore did receive the maximum possible prison term for a fifth-degree felony, had Moore been convicted of the originally
{¶ 13} For the second potential assignment of error, Moore‘s appellate counsel suggests that the trial court erred in accepting Moore‘s guilty plea to attempted theft. Upon review, we find this claim also lacks arguable merit.
{¶ 14} “In determining whether to accept a guilty plea, the trial court must determine whether the defendant knowingly, intelligently, and voluntarily entered the plea.” State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 13, citing State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), syllabus. “If a defendant‘s guilty plea is not knowing and voluntary, it has been obtained in violation of due process and is void.” Id., citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{¶ 15} In this case, the transcript of Moore‘s plea hearing reflects compliance with
{¶ 16} For the third and last potential assignment of error, appellate counsel suggests that the trial court abused its discretion in imposing the maximum 12-month sentence for Moore‘s fifth-degree felony offense. Upon review, this claim also lacks arguable merit.
{¶ 17} In reviewing a felony sentence, we must apply the standard of review set forth in
{¶ 18} In this case, with regard to
{¶ 19} “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
{¶ 20} In this case, the maximum 12-month prison sentence imposed by the trial court is within the authorized statutory range for fifth degree felonies, see
{¶ 21} An appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Upon review, we do not clearly and convincingly find that the record does not support Moore‘s sentence. As noted above, the record indicates that Moore had a prior criminal history, which includes five prior felony convictions, four of which involved theft offenses. Moore also had several misdemeanor convictions for theft, unauthorized use of property, operating a vehicle while intoxicated, and disorderly conduct. In addition, the record indicates that Moore had been sentenced to community control sanctions three times and violated those sanctions every time they were imposed. The record further indicates that Moore had completed the drug rehabilitation programming at West Central on three prior occasions, yet continued to use drugs and engage in criminal activity. Given this information, we do not find by clear and
{¶ 22} Although not raised by appellate counsel, we note that the trial court did not make any finding with regard to Moore‘s ability to pay the $90 order of restitution to the victim. Pursuant to
{¶ 23} In this case, the trial court specifically stated that it had reviewed Moore‘s PSI report prior to sentencing. The PSI report established that, at the time of sentencing, Moore was an able-bodied 30-year-old with a GED and prior work experience. At the time of the offense in question, Moore was employed by Waffle House and had been
Conclusion
{¶ 24} After conducting an independent review of the record as required by Anders, we find that, based on the facts and relevant law involved, there are no issues with arguable merit to present on appeal. Accordingly, the judgment of the trial court is affirmed.
FROELICH, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Hilary Lerman
Michael David Moore, Jr.
Hon. Richard J. O‘Neill