STATE OF OHIO v. KAREEM WALTON
No. 106103
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 17, 2018
[Cite as State v. Walton, 2018-Ohio-1963.]
BEFORE: Celebrezze, J., S. Gallagher, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 17, 2018
Stephen L. Miles
20800 Center Ridge Road, Suite 405
Rocky River, Ohio 44116
Also Listed
Kareem Walton
Inmate No. A700960
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Blaise D. Thomas
Kerry A. Sowul
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{1} Defendant-appellant, Kareem Walton (“appellant“), brings the instant appeal challenging his guilty plea and the sentence imposed by the trial court. Appellant‘s attorney, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967), filed a motion to withdraw as counsel and dismiss the appeal. After a thorough examination of the record, we affirm the trial court‘s judgment and grant appointed counsel‘s motion to withdraw.
I. Factual and Procedural History
{2} The instant matter arose from a July 9, 2016 incident during which appеllant crashed
{3} On July 26, 2016, in Cuyahoga C.P. No. CR-16-607989-A, appellant was indicted with three counts of aggravated vehicular homicidе, second-degree felonies in violation of
{4} The parties reached a plea agreement. On June 13, 2017, appellant pled guilty to the indictment. Pursuant to the plea agreement, Counts 1, 2, and 3 would merge with Counts 4, 5, and 6 for sentencing purposes; Counts 7 and 8 would merge with Counts 9 and 10. Furthermore, the state agreed to advocate for a sentence that did not exceed 25 years in prison.
{5} On June 16, 2017, the trial court sentenced appellant to an aggregate 25-year prison term. The state elected to sentence appellant on Counts 1, 2, 3, 7, and 8. The trial court sentenced appellant to six years on Counts 1, 2, and 3; three years on Count 7; four years on Count 8; and time served on Count 11. The trial court ordered Counts 1, 2, 3, 7, and 8 to run consecutively. The trial court ordered appellant‘s 25-year prison sentence to run concurrently with his three-year prison sentence in Cuyahoga C.P. No. CR-16-607990-A.1
Notes
{6} On August 9, 2017, appellant, acting pro se, filed an appeal challenging the trial court‘s judgment and a motion for appointment of appellate counsel. On August 24, 2017, this
{7} On December 3, 2017, appointed counsel filed an Anders brief and a motion for leave to withdraw as counsel. Therein, appointed counsel identified two potential issues to raise on appeal: (1) whether appellant knоwingly, intelligently, and voluntarily pled guilty; and (2) did the trial court abuse its discretion in imposing consecutive sentences.2 Counsel ultimately determined that proceeding with an appeal relating to appellant‘s guilty plea or the trial court‘s sentence would be frivolous.
{8} On December 4, 2017, this court held counsel‘s motion to withdraw in abeyance pending an independent review of the record. This court ordered appellant to file a pro se brief before January 18, 2018.
{9} Appellant filed a pro se appellate brief on February 20, 2018. Therein, hе raised two assignments of error:
I. The [s]tate breached the plea agreement it had entered into with [appellant] when, during sentencing, the [s]tate asked that the maximum consecutive sentence be imposed, in violation of [appellant‘s] Due Process protеctions under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.
II. The trial court erred, and violated Hand, in using [appellant‘s] juvenile record in support of imposing greater than minimum sentences and in support of imposing consecutive sentenсes, in violation of his Due Process protections under the Fourteenth Amendment to the U.S. Constitution, and Article I, Section 10 of
the Ohio Constitution.
{10} On March 13, 2018, this court granted the state an extension to file its answer brief and ordered the state to file its brief by April 11, 2018. The state filed its brief on April 11, 2018.
II. Law and Analysis
{11} In Anders cases, we are charged with conducting an independent review of the record to determine
whether any issues involving potentially reversible error that are raised by appellate counsel or by a defendant in his pro se brief are “wholly frivolous.” * * * If we find that any issue presented оr which an independent analysis reveals is not wholly frivolous, we must appoint different appellate counsel to represent the defendant.
(Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7. An appeal is frivolous if it “presents issues lacking in arguable merit. * * * An issue lacks arguable merit if, on the facts and law involved, no rеsponsible contention can be made that it offers a basis for reversal.” (Citation omitted.) Id. at ¶ 8.
{12} We have examined and considered the potential arguments identified by appointed counsel regarding appellant‘s guilty plea and the trial court‘s imposition of consecutive sentences. Appellant‘s counsel submitted a brief outlining the trial court‘s compliance with Crim.R. 11 during the change of plea hearing and
{13} Our independent review indicates that appellant pled guilty after a thorough plea colloquy. Additionally, the trial court made the appropriate consecutive sentence findings аnd
{14} We now turn to consider the argumеnts raised in appellant‘s pro se brief.
A. Enforcement of Plea Agreement
{15} In his first assignment of error, appellant argues that his constitutional due process rights were violated when the state breached the parties’ plea agreement during the sentencing hearing by asking the trial court to impose maximum consecutive sentences.
A plea agreement is a contract between the state and a criminal defendant and is subject to contract-law principles. State v. Butts, 112 Ohio App.3d 683, 686, 679 N.E.2d 1170 (8th Dist.1996); Baker v. United States, 781 F.2d 85, 90 (6th Cir.1986). The terms of a plea agreement must therefore be explicit. State v. Padilla, 8th Dist. Cuyahoga No. 98187, 2012-Ohio-5892, ¶ 11. Where the state breaches a plea agreement, the defendant has the option to withdraw his plea or seek specific performance. State v. Brunning, 8th Dist. Cuyahoga No. 95376, 2013-Ohio-930, ¶ 9; Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
The trial court is vested with wide discretion in implementing a plea agreement. State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, ¶ 112, citing State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.). And the court is not obligated to follow the negotiated plea entered into between the state and the defendant. Dunbar. In fact, “[a] trial court does not err by imposing a sentence greater than that forming the inducement 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 rеcommended by the prosecutor.” Buchanan at ¶ 13, quoting State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014, 2002-Ohio-1914, citing State v. Darmour, 38 Ohio App.3d 160, 529 N.E.2d 208 (8th Dist.1987).
State v. Grove, 8th Dist. Cuyahoga No. 103042, 2016-Ohio-2721, ¶ 36-37.
{16} As noted above, pursuant to appellant‘s plea agreement, the parties agreed to
{17} After the prosecutor presented victim impact statements during the sentencing hearing, the prosecutor addressed the trial court. The prosecutor stated, in relevant part,
Judge, you referenced a plea agreement in this case. The State submits that [appellant] has already received his mitigation and the negotiated plea cap. As you are aware, as [appellant] is aware, the statutory potential consecutive maximum sentence could have gone as high as 34 years. Given the gravity of this offense - these offenses, and in reviewing 2929.14 (C), the State submits that the only just and appropriate sentence is maximum consecutive, with a total aggregate sentence of 25 years in this case[.]
(Emphasis added.) (Tr. 216.) Accordingly, the record reflects that the prosecutor did not breach the parties’ plea agreement during the sentencing hearing.
{18} Furthermore, appellant has failed to demonstrate how he was prejudiced by the prosecutor‘s purportedly improper statement. The trial court imposed a 25-year prison term in CR-16-607989-A, and ordered his 25-year prison term to run concurrently with his three-year prison sentence in CR-16-607990-A, for an aggregate prison sentence in both cases of 25 years.
{19} Based on the foregoing analysis, we find that the state did not breach the parties’ plea agreement during the sentencing hearing, and appellant‘s due process rights were not violated when the trial court enforced appellant‘s guilty plea and proceeded to the imposition of sentence. Appellant‘s first assignment of error is overruled.
B. Trial Court‘s Sentence
{20} In his second assignment of errоr, appellant argues that the trial court erred and
{21} In Hand, the Ohio Supreme Court hеld that it “is a violation of due process to treat a juvenile adjudication as the equivalent of an adult conviction for purposes of enhancing a penalty for a later crime.” Id. at ¶ 1. The court explained that “[q]uite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one.” Id. at ¶ 38.
{22} In this case, appellant argues that his criminal history, based upon which the trial court determined that consecutive sentences were necessary, is primarily comprised of offenses that he committed as a juvenile. Appellant appears to argue that the trial court improperly considered his juvenile offenses and/or adjudications at sentencing, and that the trial court should only have considered the offenses he committed as an adult. Appellant‘s argument is misplaced.
{23} This court considered a similar argument in State v. Delp, 8th Dist. Cuyahoga No. 105467, 2017-Ohio-8879. There, the defendant-appellant, in challenging the trial court‘s sentence, argued, amongst other things, that it was improper for the trial court to consider his juvenile adjudication at sentencing because it is not a criminal violation. Id. at ¶ 37. This court rejected appellant‘s argument, explaining that
{24} In the instant matter, after outlining appellant‘s criminal history during the sentencing hearing, the trial court acknowledged that “a number of your cases that I‘ve just gone through are out of the juvenile court.” (Tr. 223.) After reviewing the record, we find no merit
{25} Hand does not bar trial courts from considering an offender‘s juvenile record in crafting an appropriate sentence. In fact, the serious and recidivism factors set forth in
{26} Based on the foregoing analysis, appellant‘s second assignment of error is overruled.
III. Conclusion
{27} We have performed our duty under Anders to conduct an independent review of the record. We have thoroughly reviewed the record and have found no nonfrivolous issues for review regarding appellant‘s guilty plea and the trial court‘s imposition of consecutive sentences. Accordingly, appointed counsel‘s request to withdraw is granted.
{28} We further find that the state did not breach the parties’ plea agreement during the sentencing hearing, it was not improper for the trial court to consider appellant‘s juvenile record during the sentencing hearing, and appellant‘s constitutional due process rights were not violated. Appellant‘s convictions and the trial court‘s sentence are affirmed.
{29} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this аppeal.
It is ordered that a special mandate issue out of this court directing the common pleas
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY