State v. Guerra , 2016 Ohio 5647 ( 2016 )

[Cite as State v. Guerra, 2016-Ohio-5647.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-28
:
v. : Trial Court Case No. 15-CR-144
:
FRANCISCO S. GUERRA, SR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 2nd day of September, 2016.
...........
ANTHONY E. KENDELL, by PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County
Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
DAVID J. FIERST, Atty. Reg. No. 0043954, 2533 Far Hills Avenue, Dayton, Ohio 45419
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Francisco S. Guerra, Sr. appeals from his conviction and sentence for Failure
to Give Notice of Change of Address or to Register, a third degree felony. Guerra’s
appellate counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct.
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1396, 18 L. Ed. 2d 493 (1967), indicating that this appeal is frivolous and requesting
permission to withdraw. Guerra’s appellate counsel stated in the Anders brief that he
could not formulate any potential assignment of error. By order filed on March 2, 2016,
we informed Guerra that an Anders brief had been filed and advised him of both his right
to file his own brief assigning any errors for review and the time limit to do so. Guerra did
not file a pro se brief.
The Facts and Course of Proceedings
{¶ 2} In 2006, Francisco Guerra, Sr. was convicted of Gross Sexual Imposition.
Due to that conviction, Guerra is required under R.C. 2950.05(A)(F)(1) to give notice of a
change of address to a sheriff pursuant to the statute. The statute requires a sexually
oriented offender to give written notice of an address change at least 20 days prior to the
changing of the offender’s residence. It is alleged that from on or about January 10, 2015
to on or about February 25, 2015, Guerra recklessly failed to comply with this requirement.
{¶ 3} On March 31, 2015, Guerra was indicted for Failure to Give Notice of Change
of Address or Registration of New Address pursuant to R.C. 2950.05(A)(F)(1). At his
arraignment hearing on April 9, 2015, Guerra entered a plea of not guilty. Subsequently,
on May 28, 2015, Guerra withdrew his former plea of not guilty and entered a plea of
guilty to the charge.
{¶ 4} At the plea hearing, Guerra’s counsel informed the trial court that in exchange
for the change in plea, the State agreed to recommend a 12 month sentence, with a
stipulation of 66 days jail time credit. Counsel also informed the trial court that Guerra had
waived the pre-sentence investigation and wished to proceed directly to sentencing. Prior
to executing the plea, Guerra’s counsel informed the trial court that Guerra was on
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medication for a heart condition (NitroStat) and necessitated repetition at times, however
he was confident and comfortable that Guerra understood the proceedings.
{¶ 5} The court advised Guerra of the constitutional rights he was waiving by his
guilty plea, made certain the medication did not affect his understanding, and clarified
that his plea was voluntary. The court advised Guerra his guilty plea was a complete
admission of committing the offense, to which he agreed. Guerra also stated that his
counsel had answered any and all questions he had. Our review of the record reveals
that the trial court complied with Crim. R. 11 at the plea hearing.
{¶ 6} The trial court advised Guerra the maximum penalty for his charge was 36
months, plus a $10,000 fine. Ultimately, the court imposed the jointly recommended
sentence of 12 months and granted Guerra the 66 days of jail time credit. The court
elected not to impose a fine on Guerra. Guerra was ordered to pay court costs. After
disclosing the sentence imposed, the trial court informed Guerra of the possibility of a
discretionary three year post-release control term after his sentence and the
consequences of violating PRC.
Potential Assignments of Error
{¶ 7} In his brief, appellate counsel does not identify any potential assignments of
error for our consideration. Counsel does mention that there was an agreed upon
sentence, which the trial court ultimately imposed. Further, he states that there was no
evidence at the plea hearing that Guerra misunderstood his rights or that the trial court
did not adequately advise him of his constitutional rights.
{¶ 8} After an independent review of the record, including the transcripts of the
arraignment, plea, and sentencing hearings, we find no non-frivolous issues for review.
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Pre-trial Motions
{¶ 9} Initially, we note that by entering a voluntary guilty plea while represented by
competent counsel, Guerra waived his right to appeal all nonjurisdictional defects in prior
stages of the proceedings. State v. Turner, 2d Dist. Montgomery No. 6981, 1981 WL 2549
(Sept. 25, 1981), citing Crockett v. Haskins, 372 F.2d 475 (6th Cir. 1966). We find no
non-frivolous issues relating to the trial court proceedings prior to Guerra’s plea.
Plea
{¶ 10} Next, the record supports that the trial court properly obtained a knowing,
intelligent, and voluntary guilty plea from Guerra.
{¶ 11} There is no evidence within the record that suggests the trial court did not
comply with the plea guidelines set forth in Crim.R. 11. The trial court properly informed
Guerra that he was waiving various constitutional rights defined in Crim.R. 11. The court
also properly made certain Guerra understood both the nature of the charges against him
and the consequences of the guilty plea. Although Guerra stated during allocution that he
is ill and medicated, the record does not reflect that his illness or medication prevented
him from understanding the trial court’s statements and knowingly and intelligently
accepting them. Guerra responded appropriately to all questions asked by the trial court
and spoke coherently on his own behalf. We agree with appellate counsel that there is no
evidence within the record that suggests Guerra was either confused of the rights he was
waiving by pleading guilty or that he misunderstood the gravity of the guilty plea.1
1
We note that in Guerra’s May 28, 2015 “Petition to Enter Plea of Guilty,” Nitrostat was
listed as the only medication he had taken in the last seven days, and circled on the plea
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{¶ 12} During the plea hearing, the trial court also properly informed Guerra of the
possibility of post-release control in accordance with R.C. 2967.28(C). It properly
informed Guerra of the potential sanctions that come from a post-release control violation
and that it was at the discretion of the Ohio Department of Rehabilitation and Correction
to impose post-release control.
{¶ 13} Having thoroughly reviewed the plea hearing, we find no non-frivolous
potential assignments of error.
Sentencing
{¶ 14} We also find no non-frivolous or meritorious potential assignments of error
related to sentencing. First, we have no authority to review a lawful agreed-upon
sentence. R.C. 2953.08 states that “[a] sentence imposed upon a defendant is not subject
to review under this section if the sentence is authorized by law, has been recommended
jointly by the defendant and the prosecution in the case, and is imposed by a sentencing
judge.” Accordingly, an agreed-upon sentence that is authorized by law is simply not
subject to review on appeal. State v. Sergent, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-
2696, ¶ 28-30. Such an appeal would be frivolous.
{¶ 15} According to the record, the trial court imposed a sentence that was agreed-
form was a statement that “the above listed substances do impair or affect my ability to
know and understand the nature and effect of entering my plea.” Based on counsel’s
representation at the plea hearing that Guerra understood everything that counsel had
discussed with him, Guerra’s sworn testimony in response to the court’s direct question
that Nitrostat did not in any way impact his understanding of what was going on at the
hearing, Guerra’s other responses throughout the hearing, and the totality of the entire
record, including the agreed-to twelve month sentence, we conclude that any argument
predicated on the plea form that Guerra’s plea was less than knowing, intelligent, and
voluntary would be frivolous.
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upon and jointly recommended by both the prosecution and Guerra’s counsel. This
agreed upon sentence of 12 months was within the allowable sentencing terms of a third
degree felony. R.C. 2929.14(A)(3)(b) (stating the prison term for a third degree felony
shall be nine, twelve, eighteen, twenty-four, thirty or thirty-six months). There is no reason
within the record why this sentence would be classified as contrary to law. Therefore,
Guerra’s prison sentence falls within the requirements of 2953.08 and is not appealable.
{¶ 16} In addition to the prison sentence imposed, the trial court acted properly by
imposing court costs against Guerra, regardless of his indigent status. The Supreme
Court of Ohio held that it is not contrary to law for a clerk of courts to collect assessed
court costs from an indigent defendant. State v. White, 103 Ohio St. 3d 580, 2004-Ohio-
5989, 817 N.E.2d 393. Therefore, the imposition of court costs upon Guerra was lawful.
{¶ 17} Lastly, the trial court properly informed Guerra that because of this felony
three conviction, he is subject to a three-year discretionary term of PRC. The court also
properly informed Guerra of the consequences of violating PRC. Finally it properly
advised Guerra that it was not up to the trial court to decide the PRC term, but rather, it
was the decision of the Ohio Department of Rehabilitation and Correction to impose a
discretionary term of PRC.
Ineffective Assistance of Counsel
{¶ 18} Finally, we find any claim of ineffective assistance of counsel is also
frivolous. First, this court has held that a guilty plea generally “waives the right to allege
ineffective assistance of counsel, except to the extent that the errors caused the plea to
be less knowing and voluntary.” State v. Storck, 2d Dist. Clark No. 2014-CA-130, 2015-
Ohio-2880, ¶ 9, citing State v. Spates, 64 Ohio St. 3d 269, 595 N.E.2d 351 (1992). Further,
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ineffective assistance of counsel must meet a standard that falls below a standard of
“reasonable representation” and that “counsel’s performance prejudiced the defense.”
State v. Fisher, 2d Dist. Clark No. 2015-CA-36, 2016-Ohio-601. From the record, we do
not find any evidence that counsel failed to meet the standard of reasonable
representation. Counsel negotiated with the prosecution in order to obtain an agreed
sentence amounting to less than the maximum. Counsel also advocated to the trial court
why this agreed sentence was reasonable. Any claims of ineffective assistance of counsel
not portrayed in the record must be pursued through post-conviction relief, and cannot be
addressed on direct appeal.
Anders Review
{¶ 19} We have performed our duty under Anders to conduct an independent
review of the record. We have thoroughly reviewed the arraignment, plea, and sentence
hearing transcripts, and the other various filings. We have found no non-frivolous issues
for review. Accordingly, the judgment of the Miami County Common Pleas Court is
affirmed.
.............
DONOVAN, P.J., and FROELICH, J., concur.
Copies mailed to:
Anthony E. Kendell
Paul M. Watkins
David J. Fierst
Francisco S. Guerra, Sr.
Hon. Jeannine N. Pratt