State v. Miller , 2014 Ohio 5685 ( 2014 )

[Cite as State v. Miller, 2014-Ohio-5685.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101086
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RYAN MILLER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-560086-A
BEFORE: Celebrezze, J., Boyle, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: December 24, 2014
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ALSO LISTED
Ryan J. Miller, pro se
Inmate No. 634-258
Southern Ohio Correctional Facility
P.O. Box 45699
Lucasville, Ohio 45699
ATTORNEY FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant Ryan Miller appeals from his convictions and sentence
following a guilty plea. Appellate counsel has filed a motion to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After conducting an
independent review of appellant’s case, we affirm the trial court’s judgment and grant appointed
counsel’s motion to withdraw.
I. Procedural History
{¶2} Appellant was charged in four separate cases. In Cuyahoga C.P. No.
CR-12-560086-A, appellant pled guilty to: amended Count 1, murder with notice of prior
conviction and repeat violent offender specification; amended Count 3, aggravated robbery;
tampering with evidence; and gross sexual abuse of a corpse. In Cuyahoga C.P. No.
CR-11-556395-B, appellant pled guilty to one count of drug possession. In Cuyahoga C.P. No.
CR-12-559618-B, appellant pled guilty to attempted burglary and five amended counts of
burglary. In Cuyahoga C.P. No. CR-12-560355-C, appellant pled guilty to two counts of
burglary. The remaining counts in the four cases were nolled. As part of the plea, appellant
agreed that sentences were not allied and would not merge for the purposes of sentencing.
{¶3} At the sentencing hearing, the trial court accepted the parties’ agreed-upon sentence
of 37 years to life. (Tr. 29.) The court ordered appellant to serve 27 years to life in
CR-12-560086-A. Further, the court ordered the sentence imposed in this case to run
consecutively to a five-year sentence imposed in CR-12-559618-B and a five-year sentence
imposed in CR-12-560355-C. The nine-month sentence imposed in CR-11-556395-B was
ordered to run concurrently to the sentences imposed in CR-12-560086-A, CR-12-559618-B, and
CR-12-560355-C.
{¶4} Subsequently, appellant was granted leave to file a delayed appeal, and counsel was
appointed. As previously stated, appellate counsel has filed a motion to withdraw and a brief
pursuant to Anders, indicating that, after a thorough review of the record, proceeding with the
appeal would be frivolous. Counsel served appellant with a copy of the motion to withdraw and
the Anders brief. Appellant has not filed an appellate brief.
II. Law and Analysis
{¶5} 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 or 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 responsible contention can be made that it
offers a basis for reversal.” (Citation omitted.) Id. at ¶ 8.
{¶6} In his Anders brief, appellate counsel identified two potential assignments of error,
including whether appellant’s plea was made knowingly, voluntarily, or intelligently; and
whether the trial court made the necessary findings to impose consecutive sentences as required
under R.C. 2929.14(C)(4).
{¶7} Under Crim.R. 11(C)(2), a court shall not accept a guilty plea in a felony case
without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved.
(b) Informing the defendant of and determining that the defendant understands the
effect of the plea * * *, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) 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.
{¶8} In compliance with Crim.R. 11 and prior to accepting appellant’s plea, the trial court
advised appellant of the nature of the charges, the maximum penalties, the effect of the plea, and
the constitutional rights and other rights appellant would be waiving by pleading guilty. At the
plea hearing, appellant stated that he understood the rights he was waiving and the offenses to
which he was pleading guilty. Therefore, the record reflects that appellant’s plea was
knowingly, intelligently, and voluntarily made. No meritorious argument exists.
{¶9} Likewise, we find no error in the sentence imposed by the trial court. R.C.
2929.14(C)(4) ordinarily requires certain findings to be made before consecutive sentences can
be imposed. However, the Ohio Supreme Court explicitly has held that “[a] sentence imposed
upon a defendant is not subject to review under [R.C. 2953.08(D)] 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.” State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829
N.E.2d 690, ¶ 25. In addition, the court stated that “[t]he General Assembly intended a jointly
agreed-upon sentence to be protected from review precisely because the parties agreed that the
sentence is appropriate. Once a defendant stipulates that a particular sentence is justified, the
sentencing judge no longer needs to independently justify the sentence.” Id. Therefore, not only
were findings unnecessary, but the agreed sentence is not subject to appellate review. Any
argument to the contrary lacks arguable merit and would be frivolous. State v. Weese, 2d Dist.
Clark No. 2013-CA-61, 2014-Ohio-3267, ¶ 5.
III. Conclusion
{¶10} 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 non-frivolous issues for
review. Accordingly, appellate counsel’s request to withdraw is granted. Appellant’s
convictions and sentence are affirmed.
{¶11} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
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
MARY J. BOYLE, A.J., and
MELODY J. STEWART, J., CONCUR