State v. Landgraf , 2018 Ohio 195 ( 2018 )

[Cite as State v. Landgraf, 2018-Ohio-195.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO.: 2017-CA-25
:
v. : T.C. NO. 2016-CR-619
:
ANTHONY E. LANDGRAF : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 19th day of January, 2018.
...........
NATHANIEL LUKEN, Atty. Reg. No. 87864, Greene Co. Prosecutor’s Office, 61 Greene
Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
SAMANTHA BERKHOFER, Atty. Reg. No. 87370, 202 N. Limestone St., Ste. 250,
Springfield, Ohio 45502
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the April 26, 2017 Notice of Appeal of
Anthony E. Landgraf, filed by appointed counsel for Landgraf pursuant to Anders v.
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California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On October 3, 2017,
the State filed a “Notice of Intent not to File Response to Anders Brief.” Having found no
potential assignments of error having arguable merit, the judgment of the trial court is
affirmed.
{¶ 2} Landgraf pled guilty on March 1, 2017 to one count of complicity to tampering
with coin machines, in violation of R.C. 2911.32(A) and 2923.03(A)(2), a felony of the fifth
degree, and he was sentenced to 11 months for the offense. In exchange for his plea,
a second count of possession of criminal tools was dismissed.
{¶ 3} In his brief, counsel for Landgraf asserts that, after a review of the record, he
could ascertain no arguably meritorious issues to present on appeal. This Court, on
October 12, 2017, so advised Landgraf and granted him 60 days to file a pro se brief
assigning any errors for our review. No pro se brief has been received.
{¶ 4} As potential assignments of error, counsel for Landgraf asserts the following:
1. Whether the Guilty plea was made [k]nowingly, voluntarily and with the advice
of his counsel?
2. Whether the sentence imposed was disproportionate to the crime or that the
Court had any duty to follow the sentencing recommendation of the State.
{¶ 5} As this Court has previously noted:
In State v. Marbury, Montgomery App. No. 19226, 2003-Ohio-3242,
¶ 7 and 8, we observed:
“We are charged by Anders 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.’ [386 U.S. at 744, 87
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S.Ct. 1417, 18 L.Ed.2d 522.] 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. State v. Pullen (Dec.
6, 2002), Montgomery App. No. 19232 [2002-Ohio-6788].
“Anders equates a frivolous appeal with one that presents issues
lacking in arguable merit. 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. Pullen, supra.”
State v. Chessman, 161 Ohio App.3d 140, 2005-Ohio-2511, 829 N.E.2d 748, ¶ 15-17 (2d
Dist.).
{¶ 6} “In general, a guilty plea waives all claims of error preceding the plea except
claims of ineffective assistance of counsel sufficient to cause the defendant's
guilty plea to be less than knowing and voluntary. State v. Kidd, 2d Dist. Clark No.
03CA43, 2004–Ohio–6784, ¶ 16.” State v. Guerry, 2d Dist. Clark No. 2015-CA-30, 2016-
Ohio-962, ¶ 6.
{¶ 7} Having performed our duty, under Anders v. California, of independent
review of the record, we have found nothing to suggest that Landgraf’s guilty plea was
less than knowing and voluntary. At the hearing, Landgraf indicated to the court that he
takes several medications that can occasionally affect his ability to think clearly. He
further indicated that he did not take his medications on the morning of the hearing
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because he was in a hurry to get to court. Landgraf advised the court that he did not feel
under the influence of his medications at the hearing. Counsel for Landgraf stated that
he and his client “had extensive conversations out in the hallway before we came into the
courtroom, and Mr. Landgraf certainly understood what was going on today, and I believe
that there’s no problem with his cognition.” When asked by the court if he was clear of
mind and capable of understanding the proceedings, Landgraf responded affirmatively.
Landgraf further indicated that his counsel answered all of his questions and that he was
satisfied with his representation. Landgraf indicated that his plea was being entered
voluntarily without improper influence, and that he understood that his plea was an
admission of guilt. The record further reflects a thorough Crim. R. 11 plea colloquy, and
that Landgraf indicated that he understood the rights he waived by pleading guilty, and
that he was subject to a sentence of up to one year.
{¶ 8} The court indicated to Landgraf that “the State’s going to recommend
Community Control, and they’re going to stand behind that and not change that.” The
court further indicated that it was “not bound like a prosecutor is. I can either follow that
recommendation or not follow that recommendation,” and the Court ascertained
Landgraf’s understanding. The court ordered a pre-sentence investigation. The court
concluded that Landgraf’s plea was “voluntary, intelligent and knowingly made.” Based
upon our thorough review of the record, we conclude that Counsel for Landgraf’s first
potential assignment of error is wholly frivolous.
{¶ 9} Regarding Landgraf’s sentence, as this Court recently noted:
“The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any
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findings or give its reasons for imposing maximum or more than
minimum sentences.” State v. King, 2013–Ohio–2021, 992 N.E.2d 491, ¶
45 (2d Dist.). However, in exercising its discretion, a trial court must
consider the statutory criteria that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio
App.3d 500, 2011–Ohio–3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State
v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶ 38.
***
The standard set forth in R.C. 2953.08(G)(2) applies to all challenges
involving sentencing. Under that standard, we may vacate or modify a
sentence only if we find, by clear and convincing evidence, that the
sentence is contrary to law or that the record does not support the trial
court’s findings under certain statutes * * *.
State v. Terry, 2d Dist. Clark No. 2016-CA-65, 2017-Ohio-7266, ¶ 11, 16.
{¶ 10} At sentencing, the court indicated in part as follows:
The Court’s considered the statements [of] the parties, the pre-
sentence report, the purposes and principles of sentencing and balance[d]
the serious and recidivism factors pursuant to 2929.12.
Because this is offense is [sic] a fifth degree felony, the Court’s
required to consider the (B)(1)(a) and (B)(1)(b) factors of 2929.13.
I find under (B)(1)(a), that you have a prior conviction for felony
offenses, and, therefore, the Court retains discretion to impose a sentence
in this case.
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In addition, under (B)(1)(b), I find that you have previously served a
term of imprisonment; therefore, the Court finds that a prison term is
consistent with the purposes and principles of sentencing, that you’re not
amenable to available Community Control
The Court further finds that a combination of Community Control
sanctions would demean the seriousness of your conduct, and its impact,
and this sentence is commensurate to the seriousness of your conduct, and
a prison sentence does not place an unnecessary burden on state
government resources.
I will say that your Counsel did give me some thought about the fact
that you took responsibility and plead guilty, and, therefore, the Court’s
going to impose an 11-month sentence for the offense of Complicity of
Tampering with Coins [sic], a felony of the fifth degree, and order you to be
sentenced to the Department of Rehabilitation Correction, Correctional
Reception Center.
{¶ 11} R.C. 2929.14(A)(5) provides that for a felony of the fifth degree, the “prison
term shall be six, seven, eight, nine, ten, eleven, or twelve months.” Landgraf’s sentence
is not contrary to law, and we conclude that Landgraf’s second potential assignment of
error lacks arguable merit.
{¶ 12} Having found no arguable issues for review, Landgraf’s appeal is wholly
frivolous, and the judgment of the trial court is affirmed.
.............
HALL, J. and TUCKER, J. concur.
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Copies mailed to:
Nathaniel Luken
Samantha L. Berkhofer
Anthony E. Landgraf
Hon. Steven A. Wolaver