State v. Ramey , 2014 Ohio 2345 ( 2014 )

[Cite as State v. Ramey, 2014-Ohio-2345.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 13 MA 64
V. )
) OPINION
HOWARD RAMEY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown
Municipal Court of Mahoning County,
Ohio
Case No. 13CRB519Y
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Dana Lantz
City Prosecutor
26 S. Phelps St.
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Andrew R. Zellers
3810 Starrs Centre Dr.
Canfield, Ohio 44406
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: May 29, 2014
[Cite as State v. Ramey, 2014-Ohio-2345.]
DONOFRIO, J.
{¶1} Defendant-appellant Howard Ramey appeals from his conviction and
sentence entered in the Youngstown Municipal Court for domestic violence.
Appointed counsel has filed a no-merit brief and requested leave to withdraw.
{¶2} On March 13, 2013, Ramey was charged with domestic violence in
violation of R.C. 2919.25(A), a first-degree misdemeanor, involving a physical and
verbal assault on his adult daughter. Over the course of two hours, Ramey
repeatedly kicked her, choked her, and punched her. At one point, he pushed her
into a wall while she was holding her six-month-old child.
{¶3} Ramey pleaded not guilty, the trial court appointed him counsel, and the
case proceeded to discovery and other pretrial matters. Subsequently, the parties
reached a Crim.R. 11 plea agreement and Ramey pleaded no contest. The trial court
sentenced Ramey to 170 days in jail and a $500 fine. This appeal followed.
{¶4} When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no-merit brief or an
Anders brief. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967). In this district it has also been called a Toney brief. State v. Toney, 23 Ohio
App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
{¶5} In Toney, this court recognized an indigent defendant’s constitutional
right to court-appointed counsel for direct appeal of their conviction. Id., at paragraph
one of the syllabus. After a conscientious examination of the record, counsel should
present any assignments of error which could arguably support the appeal. Id., at
paragraph two of the syllabus. If instead counsel determines that the defendant’s
appeal is frivolous and that there is no assignment of error which could be arguably
supported on appeal, then counsel should inform the appellate court and the
defendant of that by brief and ask to withdraw as counsel of record. Id., at paragraph
three and four of the syllabus. The defendant is then given the opportunity to raise on
his own behalf any assignments of error he chooses. Id., at paragraph four of the
syllabus. The appellate court then is duty bound to examine the record, counsel’s
brief, and any arguments raised by the defendant on his own behalf, and determine if
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the appeal is wholly frivolous. Id., paragraph five of the syllabus. If after determining
that the appeal is wholly frivolous, then the appellate court should permit counsel to
withdraw and affirm the judgment of conviction and sentence. Id., paragraph seven of
the syllabus.
{¶6} The no-merit brief was filed by appointed appellate counsel on August
28, 2013. Approximately two weeks later, this court informed Ramey of counsel’s no-
merit brief and granted him 30 days to file his own written brief; thus his brief was due
on October 16, 2013. 09/16/2014 J.E. Ramey has not filed his own brief. The no-
merit brief review identifies two potential issues for appeal: 1) whether the plea
colloquy complied with Crim.R. 11, and 2) whether the sentence was an abuse of
discretion. In reviewing these possible appellate arguments, counsel concludes that
they have no merit and the appeal is frivolous.
{¶7} Ramey’s first potential assignment of error states:
TRIAL COURT DID NOT COMPLY WITH THE
REQUIREMENTS OF CRIMINAL RULE 11 IN ACCEPTING THE
DEFENDANT-APPELLANTS PLEA.
{¶8} Ramey entered his no contest plea to a first-degree misdemeanor. The
maximum jail term for a first-degree misdemeanor is 180 days. R.C. 2929.24(A)(1).
Therefore, under Crim.R. 2(D), the offense to which Ramey pleaded no contest is a
petty misdemeanor, which means the advisement that the trial court must have given
him prior to accepting his no contest plea was governed by Crim.R. 11(E). It provides
in relevant part, “In misdemeanor cases involving petty offenses the court * * * shall
not accept such pleas without first informing the defendant of the effect of the plea of
guilty, no contest, and not guilty.” (Emphasis added.)
{¶9} The Ohio Supreme Court has examined this rule and its requirements,
and has held, “In accepting a plea to a misdemeanor involving a petty offense, a trial
court is required to inform the defendant only of the effect of the specific plea being
entered.” (Emphasis added.) State v. Jones, 116 Ohio St. 3d 211, 2008-Ohio-6093,
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877 N.E.2d 677, at paragraph one of the syllabus, construing Crim.R. 11(E). To meet
the requirement of informing a defendant of the effect of his plea, a trial court must
inform the defendant of the appropriate Crim.R. 11(B) language. Jones, at paragraph
two of the syllabus.
{¶10} Crim.R. 11(B) specifically defines the effect of a no contest plea:
(B) Effect of guilty or no contest pleas
With reference to the offense or offenses to which the plea is
entered:
***
(2) The plea of no contest is not an admission of defendant’s
guilt, but is an admission of the truth of the facts alleged in the
indictment, information, or complaint, and the plea or admission shall
not be used against the defendant in any subsequent civil or criminal
proceeding.
{¶11} This court has previously explained that there are three points of
information in Crim.R. 11(B)(2) that must be conveyed about the effect of a no
contest plea. State v. Dosch, 7th Dist. No. 08 MA 63, 2009-Ohio-6534, ¶ 12. First,
that it is not an admission of guilt. Id. Second, that it is an admission of the truth of
the facts alleged in the indictment, information, or complaint. Id. And, third, that the
plea cannot be used against the defendant in any subsequent civil or criminal
proceedings. Id.
{¶12} The test used to determine whether an advisement on the effect of the
plea being entered was adequate is a substantial compliance standard. State v.
Griggs, 103 Ohio St. 3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. Under this
standard, a slight deviation from the text of the rule is permissible as long as the
totality of the circumstances indicates that “the defendant subjectively understands
the implications of his plea and the rights he is waiving,” the plea may be upheld.
State v. Nero, 56 Ohio St. 3d 106, 108, 564 N.E.2d 474 (1990).
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{¶13} When the trial court does not substantially comply in regard to a
nonconstitutional right, such as the effect of a no contest plea, reviewing courts must
determine whether the trial court partially complied or failed to comply with the
dictates of the rule in question. State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 32. If there is partial compliance, such as mentioning mandatory
postrelease control without explaining it, the plea is only to be vacated if the
defendant demonstrates a prejudicial effect. Id. The test for prejudice is “whether the
plea would have otherwise been made.” Id. quoting Nero at 108. However, if the trial
court completely fails to comply with the rule, the plea must be vacated; a showing of
prejudice is not needed to be demonstrated in that instance. Id. An example of
complete failure to comply with the rule is failing to mention postrelease control at all
during the plea colloquy even though it is applicable to the defendant. State v.
Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509, 881 N.E.2d, 1224, ¶ 22. See also State
v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d 462.
{¶14} In this case, at the April 5, 2013 plea hearing, Ramey’s counsel had
apparently miscommunicated to the court that Ramey would by pleading guilty, so
the court began by advising Ramey of the effect of a guilty plea and the various trial
rights he would be waiving. When it came time for Ramey’s plea, the following
colloquy took place:
THE COURT: All right. Then to this charge how do you plead,
sir?
MR. RAMEY: No contest.
THE COURT: Which is it, no contest or guilty? You said guilty.
MR. CARTWRIGHT-JONES: My apologies, I think I slipped and
said we will plead guilty but we would enter a no contest plea, Your
Honor, if the Court will accept it.
THE COURT: Well, if you’re pleading no contest, you are saying
that you are not contesting what it says in your complaint so you are
allowing me to find that you are guilty of it without admitting it or without
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going through a trial, plus you are giving up all of the same
Constitutional rights that you have that you would have given up had
you plead guilty. Do you understand that?
MR. RAMEY: Yes, Your Honor.
THE COURT: So which plea do you want to enter, sir?
MR. RAMEY: No contest.
THE COURT: I will accept your no contest plea. I will find that
you entered it voluntarily with full knowledge of the consequences and
that you have knowingly, intelligently and voluntarily waived all of your
Constitutional rights prior to entering your plea.
According to what it says in this complaint you kicked this person
in the stomach, choked her and punched her repeatedly. I am going to
find that you are guilty of domestic violence.
(Emphasis added.) (Tr. 4-6.)
{¶15} This advisement does not substantially comply with Crim.R. 11(B)(2) as
it is a slight deviation from the text of the rule. Specifically, this advisement does not
inform the defendant that the no contest plea is not an admission of guilt or that the
plea cannot be used against the defendant in any subsequent civil or criminal
proceedings, the first or third points of information discussed in Dosch.
{¶16} Thus, the analysis moves to whether or not this advisement partially
complies with the Criminal Rule or whether it is a complete failure to comply. This is
not a situation where the trial court merely asked the defendant what his plea was
and did not attempt to inform the defendant of the effect of the plea that was being
entered. Thus, this case is not akin to Sarkozy where the trial court did not even
remotely mention the required advisement, i.e. in that case postrelease control.
Mentioning the requirement and giving an incomplete advisement constitutes partial
compliance. Here, the trial court attempted to advise Ramey on the effect of his no
contest plea. In fact, it appears from a reading of the advisement that the trial court
was attempting to inform Ramey that his no contest plea was an admission of the
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facts and permitted the trial court to find him guilty without going through a trial. The
advisement given indicates that Ramey was admitting the truth of the facts and
permitting the trial court to find him guilty without the opportunity to present a
defense. This expresses not only the second point of information discussed in Dosch,
but also the essence of a no contest plea “‘The essence of the “no contest” plea, is
that the accused cannot be heard in defense.’” State ex rel. Stern v. Mascio, 75 Ohio
St.3d 422, 424, 662 N.E.2d 370 (1996). Considering the language of the advisement,
it constitutes partial compliance with the rule. State v. Lazazzera, 7th Dist. No. 12 MA
170, 2013-Ohio-2547, ¶ 20 (finding nearly identical advisement constituted partial
compliance with the rule).
{¶17} Therefore, in order for the plea to be vacated, there must have been
prejudice. Clark, 2008-Ohio-3748 at ¶ 32. Given the record in this case, it cannot be
said that the deficient advisement prejudiced Ramey for three reasons.
{¶18} First, since this appeal involves a no-merit brief and Ramey has not
filed a brief on his own behalf, Ramey has obviously failed to assert that he was
prejudiced or to argue how he was prejudiced. It is not the duty of this court to make
an appellant’s argument for them. Thus, this court will not find prejudice without an
argument. Lazazzera at ¶ 23.
{¶19} Second, even if he had argued that he was prejudiced, it is difficult to
find prejudice considering the trial court’s advisement. The primary goal in giving the
plea advisement is to ensure that the offender is aware of all potential adverse effects
of the plea. As is shown above, Ramey was advised of the negative effect of his no
contest plea – that he could be found guilty without going through a trial and that he
would be waiving all of his Constitutional trial rights. The deficiency in the advisement
is the failure to advise Ramey of the beneficial effect of the plea – that it could not be
used against him in any subsequent civil or criminal proceeding. If a person is not
advised of a potential beneficial effect of the plea, it is difficult to imagine a scenario
where such a defendant sustains any prejudice for such a failure. Lazazzera at ¶ 24.
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{¶20} Lastly, regardless of the failure to argue prejudice, given the information
that was provided to Ramey during the plea colloquy, it is also difficult to conclude
that the plea would not have otherwise been entered. For instance, the trial court
informed Ramey that the charge carried a maximum jail term of six months and a fine
of $1,000. (Tr. 3). The court also cautioned Ramey that he may be subject to a
restitution order for any harm he may have caused and could be placed on
community control for up to five years with any number of conditions. (Tr. 3.)
Moreover, the trial court advised Ramey of the constitutional rights, i.e. right to trial,
right to compulsory process, right to have the state prove the elements of the offense
by proof beyond a reasonable doubt, right to cross-examine witnesses against him,
and right against self-incrimination, he was waiving by entering his plea. (Tr. 4-5.).
{¶21} Consequently, for all of the above stated reasons there was no
prejudice. Therefore, even though the trial court’s advisement on the effect of the no
contest plea did not substantially comply with Crim.R. 11(B)(2), this court is not
required to vacate the plea because Ramey has failed to show prejudice resulted
from the deficiency.
{¶22} Accordingly, Ramey’s first potential assignment of error is without merit.
{¶23} Ramey’s second potential assignment of error states:
TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
THE DEFENDANT APPELLANT.
{¶24} Initially, it should be noted that given the absence of any indication in
the record that Ramey sought a stay of his sentence, this appeal, especially for
purposes of his sentence, is moot because he has presumably served all of his
sentence. State v. Harris, 7th Dist. No. 11 MA 51, 2012-Ohio-1304, ¶ 2.
{¶25} Even if this aspect of the appeal was not moot, there are no possible
issues on appeal concerning Ramey’s sentence that could be categorized as non-
frivolous. The overriding purposes of misdemeanor sentencing are to punish the
offender and to protect the public from future crime by the offender and others. R.C.
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2929.21(A). In order to achieve these purposes, the sentencing court shall consider
the impact of the offense on the victim, the need to change the offender’s behavior,
the need to rehabilitate the offender, and the desire to make restitution to the victim
and/or the public. Id.
{¶26} A misdemeanor sentence shall be reasonably calculated to achieve the
two overriding purposes of misdemeanor sentencing set forth above, 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 offenses
committed by similar offenders. R.C. 2929.21(B).
{¶27} In determining the appropriate sentence for a misdemeanor, the court
shall consider all of the following factors: (a) the nature and circumstances of the
offense; (b) whether the circumstances surrounding the offender and the offense
indicate that the offender has a history of persistent criminal activity and that the
offender’s character and condition reveal a substantial risk that the offender will
commit another offense; (c) whether the circumstances regarding the offender and
the offense indicate that the offender’s history, character, and condition reveal a
substantial risk that the offender will be a danger to others and that the offender’s
conduct has been characterized by a pattern of repetitive, compulsive, or aggressive
behavior with heedless indifference to the consequences; (d) whether the victim’s
youth, age, disability, or other factor made the victim particularly vulnerable to the
offense or made the impact of the offense more serious; (e) whether the offender is
likely to commit future crimes in general. R.C. 2929.22(B)(1). The court may also
consider other relevant factors. R.C. 2929.22(B)(2). Additionally, before imposing a
jail term as a sentence for a misdemeanor, the court shall consider the
appropriateness of imposing a community control sanction. R.C. 2929.22(C).
{¶28} An appellate court reviews a trial court’s sentence on a misdemeanor
violation under an abuse of discretion standard. R.C. 2929.22; State v. Davis, 7th
Dist. No. 10-MA-98, 2011-Ohio-3184, ¶ 10, citing State v. Frazier, 158 Ohio App. 3d
407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶ 15 (1st Dist.). An abuse of discretion
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means more than a mere error of law or judgment; it implies that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980). When reviewing a sentence, an appellate
court should be guided by the presumption that the trial court’s findings were correct.
State v. Davis, 7th Dist. No. 10-MA-98, 2011-Ohio-3184, ¶ 10, citing In re Slusser,
140 Ohio App. 3d 480, 487, 748 N.E.2d 105 (3d Dist.2000).
{¶29} In this case, the trial court heard from Ramey himself and the victim
concerning the circumstances surrounding the crime. Over the course of two hours,
Ramey repeatedly kicked her, choked her, and punched her. At one point, he pushed
her into a wall while she was holding her six-month-old child. Given the presence of
all the factors listed under R.C. 2929.22(B)(1), it cannot be said that the trial court’s
sentence constituted an abuse of discretion.
{¶30} Accordingly, Ramey’s second potential assignment of error is without
merit.
{¶31} In sum, for all of the foregoing reasons, the potential assignments of
error raised by Russell’s appointed appellate counsel are without merit and our own
independent review of the case file and appellate filings reveals that there are no
appealable issues. The conviction and sentence are affirmed and counsel's motion to
withdraw is granted.
Vukovich, J., concurs.
Waite, J., concurs.