State v. Gunter , 2017 Ohio 7247 ( 2017 )


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  • [Cite as State v. Gunter, 2017-Ohio-7247.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 105275
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    JARED A. GUNTER
    DEFENDANT-APPELLANT
    JUDGMENT:
    DISMISSED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-16-607771-A
    BEFORE: Boyle, J., Kilbane, P.J., and Laster Mays, J.
    RELEASED AND JOURNALIZED: August 17, 2017
    ATTORNEY FOR APPELLANT
    Sarah R. Cofta
    P.O. Box 16425
    Cleveland, Ohio 44116
    Jared A. Gunter, pro se
    Inmate No. A691-809
    Lake Erie Correctional Institution
    P.O. Box 8000
    Conneaut, Ohio 44030
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    BY: Ashley B. Kilbane
    Assistant County Prosecutor
    Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    MARY J. BOYLE, J.:
    {¶1} Defendant-appellant, Jared Gunter, appeals from a judgment convicting him
    of burglary and grand theft and sentencing him to 12 months in prison. Gunter’s 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 because there are no meritorious,
    nonfrivolous issues for this court to review.
    I. Anders Standard and Potential Issues for Review
    {¶2} In Anders, the United States Supreme Court held that if appointed counsel,
    after a conscientious examination of the case, determines the appeal to be wholly
    frivolous, he or she should advise the court of that fact and request permission to
    withdraw. Anders at 744. This request, however, must be accompanied by a brief
    identifying anything in the record that could arguably support the appeal. 
    Id. Further, counsel
    must also furnish the client with a copy of the brief and allow the client sufficient
    time to file his or her own brief. 
    Id. In this
    case, appointed counsel fully complied with
    the requirements of Anders.
    {¶3} Once the appellant’s counsel satisfies these requirements, this court must
    fully examine the proceedings below to determine if any arguably meritorious issues
    exist. Id.; Loc.App.R. 16(C). If we determine that the appeal is wholly frivolous, we
    may grant counsel’s request to withdraw and dismiss the appeal without violating
    constitutional requirements, or we may proceed to a decision on the merits if state law so
    requires.   Anders; Loc.App.R. 16(C).
    {¶4} On April 18, 2017, this court ordered appointed counsel’s motion be held in
    abeyance pending our independent review of the case. We further notified Gunter that
    he had until July 25, 2017, to file his own appellate brief, but he did not do so.
    {¶5} Gunter’s counsel has fully complied with the requirements of Anders and
    Loc.App.R. 16(C).       Gunter’s counsel states in her Anders brief that she thoroughly
    reviewed the record, and concluded that there are no meritorious arguments that she could
    make on Gunter’s behalf. Gunter’s counsel has submitted the following two potential
    assignments of error:
    1. Whether the trial court’s sentence was contrary to law or unsupported by
    clear and convincing evidence.
    2. Whether appellant’s guilty pleas were made knowingly, voluntarily, and
    intelligently.
    {¶6} After conducting an independent review of Gunter’s case, we dismiss his
    appeal and grant appointed counsel’s motion to withdraw.
    II. Procedural and Factual Background
    {¶7} Gunter was indicted in July 2016 on three counts: burglary, grand theft,
    and petty theft. In September 2016, Gunter withdrew his former plea of not guilty and
    pleaded guilty to an amended count of burglary in violation of R.C. 2911.12(B), a
    fourth-degree felony, and one count of grand theft in violation of R.C. 2913.02(A)(1), a
    fourth-degree felony. As part of his plea, Gunter agreed to $1,300 in restitution to the
    victim. The remaining count was nolled.
    {¶8} The trial court sentenced Gunter to 12 months on each offense and ordered
    that he serve them concurrently.   The trial court further notified Gunter that he would be
    subject to a discretionary period of three years of postrelease control and advised him of
    the consequences for violating the conditions of that postrelease control.
    III. Sentence
    {¶9} In the first potential assignment of error, counsel argues that one could
    argue that Gunter’s sentence was contrary to law or unsupported by clear and convincing
    evidence.
    {¶10} An appellate court must conduct a meaningful review of the trial court’s
    sentencing decision.   State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012- Ohio-1892, ¶ 7.
    R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he appellate court’s
    standard for review is not whether the sentencing court abused its discretion.”     Rather,
    the statute states that if we “clearly and convincingly” find that (1) “the record does not
    support the sentencing court’s findings under [certain statutes that require findings, which
    are not relevant here],” or that (2) “the sentence is otherwise contrary to law,” then we
    “may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the
    sentence and remand the matter to the sentencing court for re-sentencing.”             R.C.
    2953.08(G)(2).
    {¶11} The Ohio Supreme Court has further explained:
    We note that some sentences do not require the findings that R.C.
    2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
    appellate courts to review those sentences that are imposed solely after
    consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
    that is equally deferential to the sentencing court. 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.
    {¶12} The trial court has the full discretion to impose any term of imprisonment
    within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11
    and the guidelines contained in R.C. 2929.12. State v. Holmes, 8th Dist. Cuyahoga No.
    99783, 2014-Ohio-603, ¶ 8.
    {¶13} Under R.C. 2929.11(A), a felony sentence shall be reasonably calculated to
    achieve two “overriding purposes”: (1) to protect the public from future crimes by the
    offender, and (2) to punish the offender using the minimum sanctions the court
    determines will achieve those purposes.     Further, under R.C. 2929.11(B), the sentence
    imposed for a felony must be commensurate with the seriousness of the offender’s
    conduct and consistent with sentences imposed for similar crimes committed by similar
    offenders.
    {¶14} Under R.C. 2929.12(A), a court sentencing a felony offender has discretion
    to determine the most effective way to comply with the purposes and principles of
    sentencing outlined in the statute. In exercising its discretion, however, the sentencing
    court must consider the seriousness, recidivism, and other mitigating factors set forth in
    R.C. 2929.12. 
    Id. Although the
    trial court must consider the purposes and principles
    of sentencing as well as the mitigating factors, the court is not required to use particular
    language or make specific findings on the record regarding its consideration of those
    factors.   State v. Wilson, 
    129 Ohio St. 3d 214
    , 2011-Ohio-2669, 
    951 N.E.2d 381
    , ¶ 31;
    State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.
    {¶15} And, of course, the trial court must comply with all other relevant
    sentencing statutes. State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶
    10.
    {¶16} After reviewing the transcript of the sentencing hearing, we find that the
    record overwhelmingly demonstrates that the trial court properly considered the purposes
    and principles of felony sentencing and all of the relevant sentencing statutes. Thus, we
    agree that there are no meritorious, non-frivolous issues for our review with respect to
    Gunter’s sentence.
    IV. Crim.R. 11
    {¶17} In the second potential assignment of error, counsel states that it could be
    argued that he did not voluntarily, intelligently, and knowingly enter into the plea.
    {¶18} “When a defendant enters a plea in a criminal case, the plea must be made
    knowingly, intelligently, and voluntarily.      Failure 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).
    {¶19} To ensure that a plea to a felony charge is knowingly, intelligently, and
    voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This
    provision provides that the court must address defendants personally and (1) determine
    that they understand the nature of the charges against them and of the maximum penalty
    involved, (2) inform them of and determine that they understand the effect of a plea of
    guilty or no contest and that the court may proceed with judgment and sentence, and (3)
    inform them of and determine that they understand the constitutional rights that they are
    giving up by entering into their plea.      Crim.R. 11(C)(2)(a)-(c).     The United States
    Supreme Court specified a defendant’s constitutional rights as (1) the Fifth Amendment
    privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the
    right to confront one’s accusers.   Boykin v. Alabama, 
    395 U.S. 238
    , 243, 
    89 S. Ct. 1709
    ,
    
    23 L. Ed. 2d 274
    (1969).
    {¶20} Crim.R. 11(C)(2)(c) sets forth a defendant’s constitutional rights as follows:
    Informing the defendant and determining that the defendant understands
    that by the plea the defendant is waiving the rights to jury trial, to confront
    witnesses against him or her, to have compulsory process for obtaining
    witnesses in the defendant’s favor, and to require the state to prove the
    defendant’s guilt beyond a reasonable doubt at a trial at which the defendant
    cannot be compelled to testify against himself or herself.
    {¶21} In differentiating between constitutional rights and nonconstitutional rights
    under Crim.R. 11(C), courts have held that strict compliance with the rule is required if
    the appellant raises a constitutional right delineated in Crim.R. 11(C)(2)(c). State v.
    Veney, 
    120 Ohio St. 3d 176
    , 2008-Ohio-5200, 
    897 N.E.2d 621
    , ¶ 18.                 Substantial
    compliance, however, is all that is required for nonconstitutional rights outlined in
    Crim.R. 11(C)(2)(a) and (b).        State v. Drake, 8th Dist. Cuyahoga No. 98640,
    2013-Ohio-1984, ¶ 5, citing State v. Stewart, 
    51 Ohio St. 2d 86
    , 
    364 N.E.2d 1163
    (1977).
    {¶22} After conducting an independent review of the transcript of the plea hearing,
    we find that the trial court engaged in a complete Crim.R. 11 colloquy with Gunter.
    Thus, we agree that there are no meritorious, nonfrivolous issues for our review with
    respect to Gunter’s plea.
    {¶23} Accordingly, we conclude that this appeal is wholly frivolous and grant
    counsel’s motion to withdraw.
    {¶24} Appeal dismissed.
    It is ordered that appellee recover from appellant the costs herein taxed.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    MARY J. BOYLE, JUDGE
    MARY EILEEN KILBANE, P.J., and
    ANITA LASTER MAYS, J., CONCUR
    

Document Info

Docket Number: 105275

Citation Numbers: 2017 Ohio 7247

Judges: Boyle

Filed Date: 8/17/2017

Precedential Status: Precedential

Modified Date: 8/17/2017