State v. Shay ( 2017 )

[Cite as State v. Shay, 2017-Ohio-7819.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 17-COA-014
JEFFREY M. SHAY :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 16-CRI-
198
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 21, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRIS TUNNELL MATTHEW J. MALONE
PROSECUTING ATTORNEY 10 East Main Street
110 Cottage Street Ashland, OH 44805
Ashland, OH 44805
Ashland County, Case No. 17-COA-014 2
Gwin, P.J.
{¶1} Defendant-appellant Jeffrey M. Shay [“Shay”] appeals his conviction and
sentence after a guilty plea in the Ashland County Court of Common Pleas.
Facts and procedural History
{¶2} Shay was indicted on October 13, 2016, on one count of Nonsupport or
Contributing to Nonsupport of Dependents in violation of R.C. 2919.21(B), a felony of the
fifth degree. On February 22, 2017, Shay entered a guilty plea to that charge. The state
did not offer any consideration in exchange for the guilty plea.
{¶3} On April 3, 2017, the trial court sentenced Shay to serve nine months in
prison. The trial court further ordered Shay's sentence to be served consecutively to the
prison term he was currently serving.
Assignments of Error
{¶4} Counsel for Shay 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) asserting two
potential assignments of error:
{¶5} “I. WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11
BEFORE ACCEPTING APPELLANT'S GUILTY PLEA.
{¶6} “II. WHETHER THE TRIAL COURT'S SENTENCE IMPOSED ON
APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND
WHETHER THE TRIAL COURT MADE THE FINDINGS NECESSARY TO IMPOSE
CONSECUTIVE SENTENCES.”
Ashland County, Case No. 17-COA-014 3
Law and Analysis
{¶7} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. 386 U.S. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to
raise any matters that the client chooses. Id. Once the defendant's counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss
the appeal without violating constitutional requirements, or may proceed to a decision on
the merits if state law so requires. Id.{¶8} By Judgment Entry filed July 5, 2017, this Court noted that counsel had
filed an Anders brief and had indicated to the Court that he had served Shay with the
brief. Accordingly, this Court notified Shay via Certified U.S. Mail that he “may file a pro
se brief in support of the appeal on or before July 31, 2017.”
{¶9} We find Shay’s counsel in this matter has adequately followed the
procedures required by Anders. Shay has not filed a pro se brief.
I.
{¶10} The entry of a plea of guilty is a grave decision by an accused to dispense
with a trial and allow the state to obtain a conviction without following the otherwise difficult
process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,
Ashland County, Case No. 17-COA-014 4
368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete
admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not
simply stating that he did the discreet acts described in the indictment; he is admitting
guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757,
762(1989).
{¶11} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only to "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d
115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.
Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme
Court noted the following test for determining substantial compliance with Crim.R. 11:
Though failure to adequately inform a defendant of his constitutional
rights would invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly, failure to comply with non-constitutional
rights will not invalidate a plea unless the defendant thereby suffered
prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.
The test for prejudice is ‘whether the plea would have otherwise been
made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant’s] plea and determine
whether he subjectively understood [the effect of his plea]. See, State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.
Ashland County, Case No. 17-COA-014 5
{¶12} In determining whether the trial court has satisfied its duties under Crim.R.
11 in taking a plea, reviewing courts have distinguished between constitutional and non-
constitutional rights. State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-
3748 at ¶ 32; State v. Aleshire, 5th Dist. Licking No. 2007-CA-1, 2008-Ohio-5688, ¶10.
The trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to
the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244, 893 N.E.2d at
499, 2008-Ohio-3748, ¶ 31.
{¶13} At his change of plea hearing, the trial court first confirmed with Shay that he
wished to plead guilty to the single count in his indictment and that he was doing so without
any consideration from the state. The trial court then verified that Shay was entering his
guilty plea voluntarily and without threats or coercion. Shay advised the trial court that he
had reviewed the charge with his lawyer and was satisfied with his lawyer's representation.
Next, the trial court informed Shay of the effect of his guilty plea. The trial court then advised
Shay of the maximum sentence of 12 months in prison and a $2500 fine. Finally, the trial
court verified with Shay that he wished to waive his rights to a jury trial, to be presumed
innocent, for the state to prove its case beyond a reasonable doubt, to confront the state's
witnesses, to subpoena his own witnesses, and his right to remain silent. The trial court
further advised Shay concerning post release control.
{¶14} As such, the trial court complied with its obligations under Crim. R. 11.
II.
{¶15} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this
presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)
Ashland County, Case No. 17-COA-014 6
(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This
statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st
Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶16} R.C. 2929.14(C)(4) provides,
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
Ashland County, Case No. 17-COA-014 7
{¶17} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post release control for a prior offense; (b) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the harm caused by two
or more of the offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct would adequately reflect the
seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶18} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16
N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court
is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry,
but it has no obligation to state reasons to support its findings.
{¶19} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶29. “[A]s long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
Ashland County, Case No. 17-COA-014 8
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.
2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing
entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the
statutory findings in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather, such a clerical
mistake may be corrected by the court through a nunc pro tunc entry to reflect what
actually occurred in open court. Bonnell, ¶30.
{¶20} In this case, the record does support a conclusion that the trial court made
all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive
sentences.
{¶21} R.C. 2929.14(C)(4): [T]he court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.
{¶22} The trial court made this finding. Sent. T. at 7-8. The findings are reflected in
the court’s sentencing entry. Judgment Entry on Sentence, filed April 3, 2017.
{¶23} R.C. 2929.14(C)(4)(a): The offender committed one or more of the
multiple offenses while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
Ashland County, Case No. 17-COA-014 9
{¶24} The offense in the case at bar, was committed while Shay was under a
Community Control sanction. Sent. T. at 8.
{¶25} R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
{¶26} This provision does not apply to Shay’s case.
{¶27} R.C. 2929.14(C)(4)(c): The offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶28} The trial court made this finding. Sent. T. at 6-8.
{¶29} We find that the record in the case at bar clearly and convincingly supports
the trial court’s findings under R.C. 2929.14(C)(4).
Ashland County, Case No. 17-COA-014 10
Conclusion.
{¶30} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal.
Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to
withdraw, and affirm the judgment of the Ashland County Court of Common Pleas.
By Gwin, J.,
Delaney, P.J., and
Baldwin, J., concur