STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, v. HOWARD RAMEY, DEFENDANT-APPELLANT.
CASE NO. 13 MA 64
SEVENTH DISTRICT
Dated: May 29, 2014
[Cite as State v. Ramey, 2014-Ohio-2345.]
Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown Municipal Court of Mahoning County, Ohio Case No. 13CRB519Y. JUDGMENT: Affirmed.
For Plaintiff-Appellee Dana Lantz, City Prosecutor, 26 S. Phelps St., Youngstown, Ohio 44503
For Defendant-Appellant Attorney Andrew R. Zellers, 3810 Starrs Centre Dr., Canfield, Ohio 44406
{¶1} Defendant-appellant Howard Ramey appeals from his conviction and sentence entered in the Youngstown Municipal Court for domestic violence. Appointed counsel has filed a no-merit brief and requested leave to withdraw.
{¶2} On March 13, 2013, Ramey was charged with domestic violence in violation of
{¶3} Ramey pleaded not guilty, the trial court appointed him counsel, and the case proceeded to discovery and other pretrial matters. Subsequently, the parties reached a
{¶4} When appellate counsel seeks to withdraw and discloses that there are no meritorious arguments for appeal, the filing is known as a no-merit brief or an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In this district it has also been called a Toney brief. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
{¶5} In Toney, this court recognized an indigent defendant‘s constitutional right to court-appointed counsel for direct appeal of their conviction. Id., at paragraph one of the syllabus. After a conscientious examination of the record, counsel should present any assignments of error which could arguably support the appeal. Id., at paragraph two of the syllabus. If instead counsel determines that the defendant‘s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, then counsel should inform the appellate court and the defendant of that by brief and ask to withdraw as counsel of record. Id., at paragraph three and four of the syllabus. The defendant is then given the opportunity to raise on his own behalf any assignments of error he chooses. Id., at paragraph four of the syllabus. The appellate court then is duty bound to examine the record, counsel‘s brief, and any arguments raised by the defendant on his own behalf, and determine if
{¶6} The no-merit brief was filed by appointed appellate counsel on August 28, 2013. Approximately two weeks later, this court informed Ramey of counsel‘s no-merit brief and granted him 30 days to file his own written brief; thus his brief was due on October 16, 2013. 09/16/2014 J.E. Ramey has not filed his own brief. The no-merit brief review identifies two potential issues for appeal: 1) whether the plea colloquy complied with
{¶7} Ramey‘s first potential assignment of error states:
TRIAL COURT DID NOT COMPLY WITH THE REQUIREMENTS OF CRIMINAL RULE 11 IN ACCEPTING THE DEFENDANT-APPELLANTS PLEA.
{¶8} Ramey entered his no contest plea to a first-degree misdemeanor. The maximum jail term for a first-degree misdemeanor is 180 days.
{¶9} The Ohio Supreme Court has examined this rule and its requirements, and has held, “In accepting a plea to a misdemeanor involving a petty offense, a trial court is required to inform the defendant only of the effect of the specific plea being entered.” (Emphasis added.) State v. Jones, 116 Ohio St.3d 211, 2008-Ohio-6093, 877 N.E.2d 677, at paragraph one of the syllabus, construing
{¶10}
(B) Effect of guilty or no contest pleas
With reference to the offense or offenses to which the plea is entered:
* * *
(2) The plea of no contest is not an admission of defendant‘s guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.
{¶11} This court has previously explained that there are three points of information in
{¶12} The test used to determine whether an advisement on the effect of the plea being entered was adequate is a substantial compliance standard. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. Under this standard, a slight deviation from the text of the rule is permissible as long as the totality of the circumstances indicates that “the defendant subjectively understands the implications of his plea and the rights he is waiving,” the plea may be upheld. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶13} When the trial court does not substantially comply in regard to a nonconstitutional right, such as the effect of a no contest plea, reviewing courts must determine whether the trial court partially complied or failed to comply with the dictates of the rule in question. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. If there is partial compliance, such as mentioning mandatory postrelease control without explaining it, the plea is only to be vacated if the defendant demonstrates a prejudicial effect. Id. The test for prejudice is “whether the plea would have otherwise been made.” Id. quoting Nero at 108. However, if the trial court completely fails to comply with the rule, the plea must be vacated; a showing of prejudice is not needed to be demonstrated in that instance. Id. An example of complete failure to comply with the rule is failing to mention postrelease control at all during the plea colloquy even though it is applicable to the defendant. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d, 1224, ¶ 22. See also State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.
{¶14} In this case, at the April 5, 2013 plea hearing, Ramey‘s counsel had apparently miscommunicated to the court that Ramey would by pleading guilty, so the court began by advising Ramey of the effect of a guilty plea and the various trial rights he would be waiving. When it came time for Ramey‘s plea, the following colloquy took place:
THE COURT: All right. Then to this charge how do you plead, sir?
MR. RAMEY: No contest.
THE COURT: Which is it, no contest or guilty? You said guilty.
MR. CARTWRIGHT-JONES: My apologies, I think I slipped and said we will plead guilty but we would enter a no contest plea, Your Honor, if the Court will accept it.
THE COURT: Well, if you‘re pleading no contest, you are saying that you are not contesting what it says in your complaint so you are allowing me to find that you are guilty of it without admitting it or without
going through a trial, plus you are giving up all of the same Constitutional rights that you have that you would have given up had you plead guilty. Do you understand that? MR. RAMEY: Yes, Your Honor.
THE COURT: So which plea do you want to enter, sir?
MR. RAMEY: No contest.
THE COURT: I will accept your no contest plea. I will find that you entered it voluntarily with full knowledge of the consequences and that you have knowingly, intelligently and voluntarily waived all of your Constitutional rights prior to entering your plea.
According to what it says in this complaint you kicked this person in the stomach, choked her and punched her repeatedly. I am going to find that you are guilty of domestic violence.
(Emphasis added.) (Tr. 4-6.)
{¶15} This advisement does not substantially comply with
{¶16} Thus, the analysis moves to whether or not this advisement partially complies with the Criminal Rule or whether it is a complete failure to comply. This is not a situation where the trial court merely asked the defendant what his plea was and did not attempt to inform the defendant of the effect of the plea that was being entered. Thus, this case is not akin to Sarkozy where the trial court did not even remotely mention the required advisement, i.e. in that case postrelease control. Mentioning the requirement and giving an incomplete advisement constitutes partial compliance. Here, the trial court attempted to advise Ramey on the effect of his no contest plea. In fact, it appears from a reading of the advisement that the trial court was attempting to inform Ramey that his no contest plea was an admission of the
{¶17} Therefore, in order for the plea to be vacated, there must have been prejudice. Clark, 2008-Ohio-3748 at ¶ 32. Given the record in this case, it cannot be said that the deficient advisement prejudiced Ramey for three reasons.
{¶18} First, since this appeal involves a no-merit brief and Ramey has not filed a brief on his own behalf, Ramey has obviously failed to assert that he was prejudiced or to argue how he was prejudiced. It is not the duty of this court to make an appellant‘s argument for them. Thus, this court will not find prejudice without an argument. Lazazzera at ¶ 23.
{¶19} Second, even if he had argued that he was prejudiced, it is difficult to find prejudice considering the trial court‘s advisement. The primary goal in giving the plea advisement is to ensure that the offender is aware of all potential adverse effects of the plea. As is shown above, Ramey was advised of the negative effect of his no contest plea - that he could be found guilty without going through a trial and that he would be waiving all of his Constitutional trial rights. The deficiency in the advisement is the failure to advise Ramey of the beneficial effect of the plea - that it could not be used against him in any subsequent civil or criminal proceeding. If a person is not advised of a potential beneficial effect of the plea, it is difficult to imagine a scenario where such a defendant sustains any prejudice for such a failure. Lazazzera at ¶ 24.
{¶20} Lastly, regardless of the failure to argue prejudice, given the information that was provided to Ramey during the plea colloquy, it is also difficult to conclude that the plea would not have otherwise been entered. For instance, the trial court informed Ramey that the charge carried a maximum jail term of six months and a fine of $1,000. (Tr. 3). The court also cautioned Ramey that he may be subject to a restitution order for any harm he may have caused and could be placed on community control for up to five years with any number of conditions. (Tr. 3.) Moreover, the trial court advised Ramey of the constitutional rights, i.e. right to trial, right to compulsory process, right to have the state prove the elements of the offense by proof beyond a reasonable doubt, right to cross-examine witnesses against him, and right against self-incrimination, he was waiving by entering his plea. (Tr. 4-5.).
{¶21} Consequently, for all of the above stated reasons there was no prejudice. Therefore, even though the trial court‘s advisement on the effect of the no contest plea did not substantially comply with
{¶22} Accordingly, Ramey‘s first potential assignment of error is without merit.
{¶23} Ramey‘s second potential assignment of error states:
TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT APPELLANT.
{¶24} Initially, it should be noted that given the absence of any indication in the record that Ramey sought a stay of his sentence, this appeal, especially for purposes of his sentence, is moot because he has presumably served all of his sentence. State v. Harris, 7th Dist. No. 11 MA 51, 2012-Ohio-1304, ¶ 2.
{¶25} Even if this aspect of the appeal was not moot, there are no possible issues on appeal concerning Ramey‘s sentence that could be categorized as non-frivolous. The overriding purposes of misdemeanor sentencing are to punish the offender and to protect the public from future crime by the offender and others.
{¶26} A misdemeanor sentence shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing set forth above, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar offenses committed by similar offenders.
{¶27} In determining the appropriate sentence for a misdemeanor, the court shall consider all of the following factors: (a) the nature and circumstances of the offense; (b) whether the circumstances surrounding the offender and the offense 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 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.
{¶28} An appellate court reviews a trial court‘s sentence on a misdemeanor violation under an abuse of discretion standard.
{¶29} In this case, the trial court heard from Ramey himself and the victim concerning the circumstances surrounding the crime. Over the course of two hours, Ramey repeatedly kicked her, choked her, and punched her. At one point, he pushed her into a wall while she was holding her six-month-old child. Given the presence of all the factors listed under
{¶30} Accordingly, Ramey‘s second potential assignment of error is without merit.
{¶31} In sum, for all of the foregoing reasons, the potential assignments of error raised by Russell‘s appointed appellate counsel are without merit and our own independent review of the case file and appellate filings reveals that there are no appealable issues. The conviction and sentence are affirmed and counsel‘s motion to withdraw is granted.
Vukovich, J., concurs.
Waite, J., concurs.