State v. Richardson , 2017 Ohio 4441 ( 2017 )

[Cite as State v. Richardson, 2017-Ohio-4441.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104958
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY NATHANIEL RICHARDSON
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-603824-A
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: June 22, 2017
ATTORNEY FOR APPELLANT
Stephen L. Miles
20800 Center Ridge Road, Suite 405
Rocky River, Ohio 44116
ALSO LISTED
Gregory Nathaniel Richardson, pro se
Inmate No. 684-629
Mansfield Correctional Institution
1150 North Main Street
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Kristin M. Karkutt
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Gregory Nathaniel Richardson (“Richardson”), filed a
notice of appeal of his convictions and sentence following a guilty plea. After reviewing
the record, Richardson’s appointed counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking leave to withdraw as
counsel. After a thorough review of the record, we grant counsel’s request to withdraw
and dismiss the appeal.
{¶2} Richardson was charged with one count of rape in violation of
R.C. 2907.02(A)(1)(b), one count of attempted rape in violation of R.C. 2923.02 and
2907.02(A)(1)(b), one count of gross sexual imposition in violation of
R.C. 2907.05(A)(4), and one count of kidnapping in violation of R.C. 2905.01(A)(4).
All counts alleged that the victim was less than ten years of age and included sexually
violent predator specifications.
{¶3} Pursuant to a plea agreement, Richardson pleaded guilty to one count of gross
sexual imposition and one count of abduction. The sexually violent predator
specifications were deleted, and the state nolled the remaining charges. The trial court
merged the two counts, and the state elected to proceed to sentencing on the gross sexual
imposition charge, a high tier third-degree felony. The trial court sentenced Richardson to
the maximum prison term of five years and classified him a Tier II sex offender.
{¶4} Richardson, pro se, filed a delayed appeal of the trial court’s judgment. At
Richardson’s request, this court appointed counsel to represent him. Based on the belief
that no prejudicial error occurred in the trial court and that any grounds for appeal would
be frivolous, Richardson’s counsel filed a motion to withdraw pursuant to Anders.
{¶5} Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th
Dist.1978), outline the procedure counsel must follow to withdraw as counsel due to the
lack of any meritorious grounds for appeal. In Anders, the United States Supreme Court
held that if counsel thoroughly studies the case and conscientiously concludes that an
appeal is frivolous, he may advise the court of that fact and request permission to
withdraw from the case. Anders at 744. However, counsel’s request to withdraw must
“be accompanied by a brief referring to anything in the record that might arguably support
the [a]ppeal.” Id. Counsel must also furnish a copy of the brief to his client with
sufficient time to allow the appellant to file his own brief, pro se. Id.{¶6} Once these requirements have been satisfied, the appellate court must
complete an independent examination of the trial court proceedings to decide whether the
appeal is “wholly frivolous.” Id.; Loc.App.R. 16(C). If the appellate court determines
the appeal is frivolous, it may grant counsel’s request to withdraw and address the merits
of the case without affording the appellant the assistance of counsel. Duncan, 57 Ohio
App.2d 93, 385 N.E.2d 323 (8th Dist.1978); State v. Duran, 4th Dist. Ross No.
06CA2919, 2007-Ohio-2743, ¶ 7. If, however, the court finds the existence of
meritorious issues, it must afford the appellant assistance of counsel before deciding the
merits of the case. Id.{¶7} Although Richardson’s counsel asserts that an appeal in this case is “wholly
frivolous,” he presents two potential issues for review; the court’s Crim.R. 11 plea
colloquy and the imposition of the maximum prison sentence.
A. The Plea Colloquy
{¶8} Counsel advises that because Richardson was convicted by way of a guilty
plea, the plea hearing should be reviewed for any errors. A defendant’s guilty plea
must be made knowingly, intelligently, and voluntarily, and “[f]ailure on any of those
points renders enforcement of the plea unconstitutional under both the United States
Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660
N.E.2d 450 (1996). To ensure that a plea is entered knowingly, intelligently, and
voluntarily, Crim.R. 11(C) requires the trial judge to determine whether the criminal
defendant is fully informed of his or her rights, both constitutional and nonconstitutional.
The court must also confirm that the defendant understands the consequences of his plea
before accepting a guilty plea. Id.{¶9} Counsel asserts that the trial court complied with the requirements of Crim.R.
11(C) and that Richardson knowingly, intelligently, and voluntarily entered his guilty
pleas. We have conducted an independent examination of the record and also find that
the trial court strictly complied with the dictates of Crim.R. 11(C) in accepting
Richardson’s plea. The trial court advised Richardson of his constitutional rights and the
potential penalties he could receive, including postrelease control. The court also
explained to Richardson that he would be classified as a Tier II sex offender as a result of
his convictions. Richardson indicated at the plea hearing that he understood the effect of
his pleas. Therefore, any argument that the pleas were not entered knowingly,
intelligently, and voluntarily would be frivolous.
B. The Maximum Sentence
{¶10} Counsel asserts the second potential error that should be reviewed is
whether the trial court abused its discretion by sentencing Richardson to the maximum
sentence for his third-degree felony. Richardson pleaded guilty to gross sexual
imposition, an upper tier third-degree felony and, as previously stated, the court sentenced
him to a five-year, or 60-month, prison term.
{¶11} When reviewing felony sentences, appellate courts must apply the standard
of review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7, 10. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it
may vacate the sentence and remand for resentencing, only if it “clearly and
convincingly” finds either (1) that the record does not support the trial court’s findings
under any relevant statutes, or (2) that the sentence imposed is contrary to law. Id. at ¶ 9.
{¶12} Even in those cases where the sentence imposed did not require any explicit
statutory findings addressed within R.C. 2953.08(G)(2), an appellate court will
nevertheless review those sentences “under a standard that is equally deferential to the
sentencing court.” Marcum at ¶ 23. “That is, 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.” Id. In other words, this court may increase, reduce, or otherwise modify a
sentence only when it clearly and convincingly finds that the sentence is (1) not supported
by the record or (2) is otherwise contrary to law. Marcum at ¶ 1; see also State v.
Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d 1217, ¶ 1.
{¶13} A sentence is not clearly and convincingly contrary to law “where the trial
court considers the purposes and principles of sentencing under R.C. 2929.11 as well as
the seriousness and recidivism factors listed in R.C. 2929.12, properly applies
post-release control, and sentences a defendant within the permissible statutory range.”
State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. See also State v.
Brandenburg, 12th Dist. Butler Nos. A2014-10-201 and CA2014-10-202,
2015-Ohio-2573, ¶ 8, aff’d, 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d 1217.
{¶14} “While trial courts must carefully consider the statutes that apply to every
felony case, it is not necessary for the trial court to articulate its consideration of each
individual factor as long as it is evident from the record that the principles of sentencing
were considered.” State v. Gonzalez, 8th Dist. Cuyahoga No. 102579, 2015-Ohio-4765,
¶ 6.
{¶15} Although the trial court has a mandatory duty to “consider” the statutory
factors under R.C. 2929.11 and 2929.12, the court is not required to make any factual
findings under R.C. 2929.11 or 2929.12 in open court and on the record. State v.
Mihalis, 8th Dist. Cuyahoga No.104308, 2016-Ohio-8056, ¶ 39. Thus, a trial court’s
imposition of a maximum prison term is not contrary to law as long as the court indicates
that it considered the required sentencing factors in R.C. 2929.11 and 2929.12, sentenced
the offender within the statutory range, and the record supports the sentence. Id.{¶16} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing
are (1) to protect the public from future crime by the offender and others, and (2) to
punish the offender using the minimum sanctions that the court determines accomplish
those purposes without imposing an unnecessary burden on state or local government
resources. R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial
court must consider when determining the seriousness of the offense and the likelihood
that the offender will commit future offenses.
{¶17} The trial court considered the statutory factors under R.C. 2929.11 and
2929.12 when it sentenced Richardson. The court’s sentencing entry states that “the
court considered all required factors of the law,” and that “prison is consistent with the
purpose of R.C. 2929.11.” This court has held that a trial court’s statement in its
sentencing entry that it considered the required statutory factors, without more, is
sufficient to fulfill a sentencing court’s obligations under R.C. 2929.11 and 2929.12.
Gonzalez at ¶ 7. But we must nevertheless determine whether the record supports the
sentence.
{¶18} At the sentencing hearing, the court commented on Richardson’s extensive
criminal record that included “numerous prison sentences,” and a “history of probation
violations and PRC violations.” (Tr. 39.) A history of recidivism weighs in favor of
prison. R.C. 2929.12(D)(2). Moreover, the court found that Richardson’s conduct was
more serious than conduct normally constituting the offense because the victim was only
eight years old at the time the sex offenses were committed. R.C. 2929.12(B)(1)
provides that a young child victim is a factor “indicating that the offender’s conduct is
more serious than conduct normally constituting the offense.” Based on the victim’s
tender age, the court concluded that Richardson’s actions were “very deserving of a
maximum five-year sentence.” (Tr. 39.) Therefore, the record clearly demonstrates that
the court considered the required statutory factors when it decided to impose the
maximum sentence.
{¶19} Finally, Richardson’s five-year prison term is within the statutory range for
a high tier third-degree felony. R.C. 2929.14(A) governs basic prison terms and provides
that the prison term for an high tier third-degree felony “shall be twelve, eighteen,
twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.” R.C.
2929.14(A)(3)(a). Thus, Richardson’s five year, or 60-month, prison term was within
the permissible statutory range for higher tier third-degree felonies.
{¶20} Richardson’s sentence is not contrary to law and is supported by the record.
And since the court complied with the requirements of Crim.R.11 when it accepted
Richardson’s guilty pleas, there are no meritorious grounds for appeal. We, therefore,
conclude that Richardson’s appeal is wholly frivolous pursuant to Anders. Counsel’s
request to withdraw is granted, and the appeal is dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR