State v. Thompson ( 2019 )


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  • [Cite as State v. Thompson, 2019-Ohio-5016.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    CLARK COUNTY
    STATE OF OHIO                                       :
    :
    Plaintiff-Appellee                          :   Appellate Case No. 2019-CA-13
    :
    v.                                                  :   Trial Court Case No. 2018-CR-385
    :
    TREMAINE THOMPSON                                   :   (Criminal Appeal from
    :   Common Pleas Court)
    Defendant-Appellant                         :
    :
    ...........
    OPINION
    Rendered on the 6th day of December, 2019.
    ...........
    JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
    Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
    Attorney for Plaintiff-Appellee
    JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
    Attorney for Defendant-Appellant
    .............
    DONOVAN, J.
    -2-
    {¶ 1} Defendant-appellant Tremaine Thompson was charged with one count of
    felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree. At
    his arraignment on June 14, 2018, Thompson pled not guilty to the charged offense, and
    the trial court released him on his own recognizance with electronic monitoring. On
    January 10, 2019, Thompson pled guilty to an amended charge of aggravated assault, in
    violation of R.C. 2903.12(A)(1), a felony of the fourth degree. The trial court accepted
    Thompson’s guilty plea and ordered the probation department to prepare a presentence
    investigation report (PSI). On January 30, 2019, the trial court sentenced Thompson to
    18 months in prison. On February 25, 2019, Thompson filed a timely notice of appeal
    with this Court.
    {¶ 2} Appointed counsel for Thompson filed an appellate brief pursuant to Anders
    v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967), stating she can find
    no meritorious issues for appellate review. We notified Thompson of appellate counsel’s
    representation and afforded him time to file a pro se brief. None has been received.
    This matter is now before us for our independent review of the record. Penson v. Ohio,
    
    488 U.S. 75
    , 
    109 S. Ct. 346
    , 
    102 L. Ed. 2d 300
    (1988).
    {¶ 3} Thompson’s appellate counsel has identified three potentially meritorious
    issues for appeal: 1) whether Thompson’s plea was made in a knowing, intelligent, and
    voluntary fashion; 2) whether the trial court followed the mandates of Crim.R. 11; and 3)
    whether the trial court’s sentence was contrary to law or an abuse of discretion.
    Compliance with Crim.R. 11
    {¶ 4} “Crim.R. 11(C)(2)(a) provides that, before accepting a guilty plea, a court
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    must ‘[d]etermin[e] that the defendant is making the plea voluntarily, with understanding
    of the nature of the charges and of the maximum penalty involved * * *.’ ” State v. Jones,
    2d Dist. Montgomery No. 24772, 2013-Ohio-119, ¶ 6. “The ‘maximum penalty’ includes
    any mandatory post-release control sanction[.]” 
    Id. at ¶
    7. “Thus if the defendant will be
    subject to a period of post-release control, to comply with Crim.R. 11 the court must inform
    the defendant of post-release control.” 
    Id. {¶ 5}
    “The Supreme Court of Ohio has urged trial courts to literally comply with
    Crim.R. 11.” State v. Jennings, 2d Dist. Clark No. 2013 CA 60, 2014-Ohio-2307, ¶ 6, citing
    State v. Clark, 
    119 Ohio St. 3d 239
    , 2008-Ohio-3748, 
    893 N.E.2d 462
    , ¶ 29. “However,
    because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need
    only substantially comply with those requirements.” 
    Id., citing State
    v. Nero, 
    56 Ohio St. 3d 106
    , 108, 
    564 N.E.2d 474
    (1990). “Substantial compliance means that under the totality
    of the circumstances the defendant subjectively understands the implications of his plea
    and the rights he is waiving.” (Citations omitted.) Nero at 108.
    {¶ 6} “Furthermore, when non-constitutional rights are at issue, a defendant who
    challenges his guilty plea on the basis that it was not knowingly, intelligently, and
    voluntarily made generally must show a prejudicial effect.” Jennings at ¶ 7, citing State v.
    Veney, 
    120 Ohio St. 3d 176
    , 2008-Ohio-5200, 
    897 N.E.2d 621
    , ¶ 17. “Prejudice in this
    context means that the plea would otherwise not have been entered.” 
    Id. {¶ 7}
    Upon review of the plea transcript, we conclude that the record reveals no
    arguably meritorious issues regarding the trial court's compliance with Crim.R. 11 in
    accepting Thompson's guilty plea. The record clearly establishes that prior to entering
    his plea, Thompson was advised of the charge, the possible sentence, and the
    -4-
    constitutional and non-constitutional rights he was waiving by pleading guilty. At no point
    did Thompson express any confusion regarding any of the information provided by the
    trial court in its Crim.R. 11 colloquy. Rather, Thompson affirmatively stated that he
    understood the rights he was waiving. Furthermore, the agreement negotiated by the
    parties benefitted Thompson by allowing him to plead guilty to the lesser offense of
    aggravated assault, a felony of the fourth degree, when he had been charged with a felony
    of the second degree. Therefore, we conclude that the trial court did not violate Crim.R.
    11(C)(2)(c) in accepting Thompson's plea, and that he entered his plea knowingly,
    intelligently, and voluntarily.
    Lawfulness of the Sentence
    {¶ 8} As this Court has previously 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
    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
    policies 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.
    State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.
    {¶ 9} R.C. 2929.11 requires trial courts to be guided by the overriding principles of
    felony sentencing. Those purposes are “to protect the public from future crime by the
    -5-
    offender and others and to punish the offender using the minimum sanctions that the court
    determines accomplish those purposes without imposing an unnecessary burden on state
    or local government resources.” R.C. 2929.11(A). The court must “consider the need for
    incapacitating the offender, deterring the offender and others from future crime,
    rehabilitating the offender, and making restitution to the victim of the offense, the public,
    or both.” 
    Id. R.C. 2929.11(B)
    further provides that “[a] sentence imposed for a felony
    shall be reasonably calculated to achieve the two overriding purposes of felony
    sentencing * * *, commensurate with and not demeaning to the seriousness of the
    offender's conduct and its impact upon the victim, and consistent with sentences imposed
    for similar crimes committed by similar offenders.”
    {¶ 10} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct
    is more serious than conduct normally constituting the offense. These factors include
    whether the physical or mental injury to the victim was exacerbated because of the
    physical or mental condition of the victim; serious physical, psychological, or economic
    harm suffered by the victim as a result of the offense; whether the offender's relationship
    with the victim facilitated the offense; and whether the offender committed the offense for
    hire or as a part of an organized criminal activity.
    {¶ 11} R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct
    is less serious than conduct normally constituting the offense, including whether the victim
    induced or facilitated the offense, whether the offender acted under strong provocation,
    whether, in committing the offense, the offender did not cause or expect to cause physical
    harm to any person or property, and the existence of substantial grounds to mitigate the
    offender's conduct, although the grounds are not enough to constitute a defense. R.C.
    -6-
    2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the
    offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the
    sentencing court to consider the offender's military service record.
    {¶ 12} In reviewing felony sentences, appellate courts must apply the standard of
    review set forth in R.C. 2953.08(G)(2). State v. Marcum, 
    146 Ohio St. 3d 516
    , 2016-Ohio-
    1002, 
    59 N.E.3d 1231
    , ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
    reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
    only if it “clearly and convincingly” finds either (1) that the record does not support certain
    specified findings or (2) that the sentence imposed is contrary to law.
    {¶ 13} In the instant case, the trial court imposed a sentence within the permissible
    statutory range. The record establishes that the trial court reviewed the PSI, Thompson's
    statements, and the statements of counsel. The record further establishes that the trial
    court considered the principles and purposes of sentencing under R.C. 2929.11, and that
    it balanced the seriousness and recidivism factors set forth in R.C. 2929.12. Although
    the trial court did not orally advise Thompson at the sentencing hearing of its findings
    pursuant to R.C. 2929.11 and 2929.12, the judgment entry of conviction contains those
    findings. “On a silent record, a trial court is presumed to have considered the statutory
    purposes and principles of sentencing and the statutory seriousness and recidivism
    factors.” State v. Goldblum, 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 50.
    {¶ 14} In light of the foregoing, we conclude that the record reveals no arguably
    meritorious issues regarding the 18 month sentence imposed by the trial court. Notably,
    Thompson had a lengthy criminal history and three prior prison commitments.
    {¶ 15} In addition to reviewing the possible issues for appeal raised by Thompson’s
    -7-
    appellate counsel, we have conducted an independent review of the trial court’s
    proceedings and have found no error having arguable merit. Accordingly, the judgment
    of the trial court is affirmed.
    .............
    WELBAUM, P.J. and TUCKER, J., concur.
    Copies sent to:
    John M. Lintz
    Johnna M. Shia
    Tremaine Thompson
    Hon. Richard J. O’Neill
    

Document Info

Docket Number: 2019-CA-13

Judges: Donovan

Filed Date: 12/6/2019

Precedential Status: Precedential

Modified Date: 12/6/2019