State v. Dixon , 2015 Ohio 5487 ( 2015 )

[Cite as State v. Dixon, 2015-Ohio-5487.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 2015-CA-37 and
: 2015-CA-38
v. :
: Trial Court Case Nos. 2014-CR-762
JASON DIXON : and
: 2015-CR-57
Defendant-Appellant : (Criminal Appeal from
: Common Pleas Court)
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OPINION
Rendered on the 29th day of December, 2015.
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RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting
Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West Second Street, Suite 2103,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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WELBAUM, J.
{¶ 1} In these consolidated cases, Defendant-Appellant, Jason Dixon, appeals
from his convictions and sentences on two counts of Breaking and Entering and one count
of Theft. Following his guilty plea, Dixon was sentenced to maximum and consecutive
sentences for these terms, for a total of three and a half years in prison. He was also
sentenced to one year for violating post-release control, to be served consecutive to the
other sentences. The total sentence, thus, was four and a half years in prison.
{¶ 2} Dixon’s appellate counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he could find no meritorious
issues to pursue on appeal. Counsel raised three potential assignments of error: (1)
that Dixon’s plea was not made knowingly, intelligently, and voluntarily; (2) that the trial
court erred in imposing a sentence that was contrary to law and was not commensurate
with the seriousness of the offenses; and (3) that the court erred by imposing consecutive
sentences. However, counsel did not find that these issues had merit.
{¶ 3} In an entry filed on September 10, 2015, we informed Dixon that his attorney
had filed an Anders brief. We granted Dixon 60 days from that date to file a pro se brief,
but no pro se brief has been filed.
{¶ 4} “We are charged by Anders to determine whether any of these issues are
‘wholly frivolous.’ ” State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788,
¶ 2, quoting Anders at 744. “If we find that any of them involve legal points that are
arguable on their merits, and therefore are not wholly frivolous, per Anders we must
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appoint other counsel to argue the appeal.” Id.{¶ 5} “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. An issue lacks arguable merit
if, on the facts and law involved, no responsible contention can be made that it offers a
basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242,
¶ 8.
{¶ 6} We have independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we agree with appellate counsel
that there are no potentially meritorious issues for review. Accordingly, the judgment of
the trial court will be affirmed.
I. Plea Hearing
{¶ 7} Dixon’s First Proposed Assignment of Error is that:
Did the Trial Court Err by Accepting Appellant’s Plea Which Was Not
Made Knowingly, Voluntarily or in an Intelligent Manner?
{¶ 8} With respect to this proposed assignment of error, Dixon’s appellate counsel
outlines plea requirements and suggests that the trial court failed to determine that Dixon
made his plea knowingly, intelligently, and voluntarily. Counsel does not point to any
specific deficiency, and indicates that he finds no merit to this claim of error.
{¶ 9} Pleas are invalid unless they are “knowingly, intelligently, and voluntarily
made * * *.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25.
“To ensure that pleas conform to these high standards, the trial judge must engage the
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defendant in a colloquy before accepting his or her plea,” and trial courts “are bound by
the requirements of Crim.R. 11(C)(2).” Id. at ¶ 26-27.
{¶ 10} “Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is
making the plea voluntarily, with an understanding of the nature of the charges and the
maximum penalty, and, if applicable, that the defendant is not eligible for probation or for
the imposition of community control sanctions; (b) inform the defendant of and determine
that the defendant understands the effect of the plea of guilty and that the court, upon
acceptance of the plea, may proceed with judgment and sentencing; and (c) inform the
defendant and determine that he understands that, by entering the plea, the defendant is
waiving the rights to a jury trial, to confront witnesses against him, to have compulsory
process for obtaining witnesses, and to require the state to prove his guilt beyond a
reasonable doubt at a trial at which he cannot be compelled to testify against himself.”
State v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.
{¶ 11} The Supreme Court of Ohio has urged trial courts to literally comply with
Crim.R. 11 in order to avoid committing error. Clark, 119 Ohio St.3d 239, 2008-Ohio-
3748, 893 N.E.2d 462, ¶ 29. Where constitutional rights, like the right to a jury trial or
the right to compulsory process to obtain witnesses, are involved, trial courts must strictly
comply with Crim.R. 11(C)(2). State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,
897 N.E.2d 621, syllabus. However, substantial compliance is sufficient regarding “the
nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and 11(C)(2)(b) * * *.” Id.
at ¶ 14. Accord State v. Earnest, 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶
26.
{¶ 12} “ ‘Substantial compliance means that under the totality of the circumstances
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the defendant subjectively understands the implications of his plea and the rights he is
waiving.’ ” Veney at ¶ 15, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d
474 (1990). “ ‘Furthermore, a defendant who challenges his guilty plea on the basis that
it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.’ *
* *. To demonstrate prejudice in this context, the defendant must show that the plea
would otherwise not have been entered.” Id., quoting Nero at 108.
{¶ 13} We have reviewed the entire record, including the transcript of the plea
hearing, and agree with appellate counsel that any claim relating to Dixon’s plea has no
arguable merit, as the trial court fully complied with the requirements of Crim.R. 11.
II. Alleged Error in Imposing Sentence
{¶ 14} Dixon’s Second Proposed Assignment of Error is that:
Did the Trial Court Err by Imposing a Sentence That Is Contrary to
Law and Would a Lesser Sentence Be Commensurate With and Not
Demean the Seriousness of the Offense?
{¶ 15} This potential assignment of error contends that the sentence was contrary
to law, and asks whether a lesser sentence would be commensurate with and not demean
the seriousness of the offenses. Again, Dixon’s counsel finds no merit to this assignment
of error. Dixon received the maximum sentences for each crime, and the sentences
were imposed consecutively.
{¶ 16} When we review felony sentences, we no longer use an abuse-of-discretion
standard of review. State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.).
Instead, we apply the standard of review set forth in R.C. 2953.08(G)(2), which states
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that:
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929. 20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 17} We have reviewed the entirety of the record, including the transcript of the
sentencing hearing, and cannot find any issues of arguable merit. The trial court had
discretion to impose prison terms, since Dixon had previously served a prison term and
was on post-release control at the time of the crimes. See R.C. 2929.13(B)(1)(b)(x) and
(xi). The prison terms were also within the periods authorized by statute.
{¶ 18} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences. * * * However, the trial
court must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C.
2929.12.” (Citations omitted.) State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d
Dist.).
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{¶ 19} After examining the record, we can find no reasonable contention that the
court’s imposition of maximum sentences offers a basis for reversal. Marbury, 2d Dist.
Montgomery No. 19226, 2003-Ohio-3242, at ¶ 8. The court complied with the statutory
requirements, and was authorized to impose the sentences. Accordingly, we agree with
Dixon’s counsel that this proposed assignment of error has no merit.
III. Consecutive Sentences
{¶ 20} The third proposed assignment of error states that:
Did the Trial Court Err by Imposing Consecutive Sentences?
{¶ 21} Again, our review of sentencing decisions is whether we can clearly and
convincingly find that the court’s findings are unsupported by the record, or that the
sentence is contrary to law. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 29.
Appellate counsel has not suggested any specific way in which the trial court erred, and
states that he can find no error in this assignment of error.
{¶ 22} The trial court made appropriate findings under R.C. 2929.14(C)(4) for
imposing consecutive sentences, and the record supports the findings. As the court
noted, Dixon had fifteen prior theft-related convictions and had been in prison seven
times. The crimes were also committed while Dixon was on post-release control and
occurred only a few months after he had been released from prison. In this regard, the
court commented that it had a responsibility to protect the public from future crime by
Dixon. It is clear that the possibility of recidivism and commission of future offenses was
great.
{¶ 23} Accordingly, we can find no reasonable contention that the court’s
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imposition of consecutive sentences offers a basis for reversal. Marbury, 2d Dist.
Montgomery No. 19226, 2003-Ohio-3242, at ¶ 8.
IV. Anders Review
{¶ 24} We have also performed our duty under Anders to conduct an independent
review of the record. We have thoroughly reviewed the docket, the various filings, the
written transcript of the plea hearing, and the sentencing disposition. We have found no
non-frivolous issues for review. Accordingly, the judgment of the trial court is affirmed.
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HALL, J., concurs.
FROELICH, P.J., dissenting:
{¶ 25} R.C. 2929.141(A)(1) provides that a trial court may:
In addition to any prison term for the new felony, impose a prison
term for the post-release control violation. The maximum prison term for
the violation shall be the greater of twelve months or the period of post-
release control for the earlier felony minus any time the person has spent
under post-release control for the earlier felony. In all cases, any prison
term imposed for the violation shall be reduced by any prison term that is
administratively imposed by the parole board as a post-release control
sanction. A prison term imposed for the violation shall be served
consecutively to any prison term imposed for the new felony. The
imposition of a prison term for the post-release control violation shall
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terminate the period of post-release control for the earlier felony.
{¶ 26} The court here found that the Appellant had served all but two months of
his post-release control on the previous felony and sentenced him to an additional year,
since it was greater than the time remaining on that post-release control. With this
record, it cannot be determined how much time he had spent under post-release control
for that previous felony and whether it was appropriately subtracted from the prison term
imposed for the violation.
{¶ 27} I realize we have precedent regarding calculation of a sentence for a post-
release control violation, but the issue is not frivolous, and I would reject the Anders brief
and appoint counsel.
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Copies mailed to:
Ryan A. Saunders
Michael T. Columbus
Jason Dixon
Hon. Douglas M. Rastatter