State v. Bateman , 2011 Ohio 5808 ( 2011 )

[Cite as State v. Bateman, 2011-Ohio-5808.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010CA15
vs. : T.C. CASE NO. 2010CR19
JOSHUA ROSS BATEMAN : (Criminal Appeal From
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of November, 2011.
. . . . . . . . .
Nick Selvaggio, Pros. Attorney, 200 North Main Street, Urbana,
OH 43078
Attorney for Plaintiff-Appellee
Jessica R. Moss, Atty. Reg. No. 0085437, 2233 Miamisburg
Centerville Road, Dayton, OH 45459
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Joshua Bateman, entered pleas of guilty to
illegal conveyance of drugs of abuse onto the grounds of a detention
facility, R.C. 2921.36(A)(2), a third degree felony, and
trafficking in heroin, R.C. 2925.03(A)(2), a fifth degree felony.
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In exchange for Defendant’s guilty pleas, the State dismissed
a possession of heroin charge and agreed to recommend community
control sanctions at sentencing. The trial court sentenced
Defendant to concurrent one year prison terms on each offense,
and fined Defendant four hundred dollars.
{¶ 2} Defendant timely appealed to this court from his
conviction and sentence. Defendant’s appellate counsel filed an
Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 19 L.Ed.2D 493, stating that she could find no meritorious
issues for appellate review. We notified Defendant of his
appellate counsel’s representations and afforded him ample time
to file a pro se brief. None has been received. This case is
now before us for our independent review of the record. Penson
v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 3} Defendant’s appellate counsel has identified two possible
issues for appeal, the first of which is:
{¶ 4} “1. DID THE TRIAL COURT COMPLY WITH THE REQUIREMENTS
OF CRIMINAL RULE 11 IN ACCEPTING THE APPELLANT’S PLEA OF GUILTY
TO ONE (1) COUNT OF ILLEGAL CONVEYANCE OF DRUGS OF ABUSE ONTO GROUNDS
OF A DETENTION FACILITY, IN VIOLATION OF ORC 2921.36(A)(2)(G)(2),
A FELONY OF THE THIRD DEGREE, AND TO ONE (1) COUNT OF TRAFFICKING
IN HEROIN, IN VIOLATION OF ORC 2925.03(A)(2)(C)(6)(a), A FELONY
OF THE FIFTH DEGREE?”
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{¶ 5} To be constitutionally valid and comport with due process,
a guilty plea must be entered knowingly, intelligently, and
voluntarily. Boykin v. Alabama (1969),395 U.S. 238, 89 S.Ct. 1709,
23 L.Ed.2d 274. Compliance with Crim.R. 11(C)(2) in accepting
guilty or no contest pleas portrays those qualities. State v.
Fisher, Montgomery App. No, 23992, 2011-Ohio-629, at ¶16.
{¶ 6} Crim. R. 11(C)(2) provides:
{¶ 7} “In felony cases the court may refuse to accept a plea
of guilty or a plea of no contest, and shall not accept a plea
of guilty or no contest without first addressing the defendant
personally and doing all of the following:
{¶ 8} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
{¶ 9} “(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
{¶ 10} “(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
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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.”
{¶ 11} In State v. Russell, Clark App. No. 10CA54,
2011-Ohio-1738, we stated:
{¶ 12} “¶7. The Supreme Court of Ohio has urged trial courts
to literally comply with Crim.R. 11. Clark at ¶ 29. The trial court
must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to
the waiver of constitutional rights. Clark at ¶ 31. The 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. State v. Griggs, 103 Ohio St.3d
85, 2004–Ohio–4415, ¶ 12.
{¶ 13} “¶8. However, because Crim.R. 11(C)(2)(a) and (b)
involve non-constitutional rights, the trial court need only
substantially comply with those requirements. State v. Nero (1990),
56 Ohio St.3d 106, 108; Greene at ¶ 9. 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. State v. Miller, Clark App. No. 08 CA 90,
2010–Ohio–4760, ¶ 8, citing State v. Veney, 120 Ohio St.3d 176,
2008–Ohio–5200, ¶ 15. A defendant who challenges his guilty plea
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on the ground that the trial court did not substantially comply
with Crim.R. 11(C)(2)(a) and (b) must show a prejudicial effect,
which requires the defendant to show that the plea would otherwise
not have been entered. Griggs at ¶ 12.”
{¶ 14} With respect to the requirement in Crim.R. 11(C)(2)(b)
that the trial court advise Defendant about and determine that
Defendant understands the effect of his guilty or no contest
plea(s), Defendant argues that statements that he made at the
hearing on his motion to withdraw his pleas demonstrate that he
did not understand the effect of his pleas. Defendant claims that
he mistakenly thought that his no contest plea would enable him
to get of jail on bond so he could then prove his innocence or
have his day in court. That claim is refuted by the discussion
held between the court and Defendant during the plea hearing, in
which Defendant acknowledged his understanding of the court’s
explanation that the Defendant’s plea would result in a waiver
of his right to trial and a finding of guilty to the charges against
him.
{¶ 15} The record of the plea hearing in this case demonstrates
that the trial court meticulously complied with both Crim.R.
11(C)(2) in advising Defendant about the various constitutional
rights he would be giving up by entering pleas of guilty, and with
Crim.R. 11(C)(2)(a) and (b) in advising Defendant about the
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non-constitutional matters including the nature of the charges,
the effect of Defendant’s guilty pleas, and the maximum penalties
involved. Defendant’s guilty pleas were entered knowingly,
intelligently, and voluntarily. This assignment of error lacks
arguable merit.
{¶ 16} “2 DID THE TRIAL COURT ERR IN SENTENCING THE APPELLANT
TO ONE (1) YEAR IMPRISONMENT BASED ON HIS CONVICTION FOR ILLEGAL
CONVEYANCE OF DRUGS OF ABUSE ONTO GROUNDS OF A DETENTION FACILITY,
IN VIOLATION OF ORC 2921.36(A)(2)(G)(2), A FELONY OF THE THIRD
DEGREE, AND TO TRAFFICKING IN HEROIN, IN VIOLATION OF ORC
2925.03(A)(2)(C)(6)(a), A FELONY OF THE FIFTH DEGREE?”
{¶ 17} In State v. Jeffrey Barker, Montgomery App. No. 22779,
2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 18} “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, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at
paragraph 7 of the syllabus. Nevertheless, in exercising its
discretion the trial court must consider the statutory policies
that apply to every felony offense, including those set out in
R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846
11 N.E.2d 1, 2006-Ohio-855, at ¶37.
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{¶ 19} “When reviewing felony sentences, an appellate court
must first determine whether the sentencing court complied with
all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the
sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,
896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly
and convincingly contrary to law, the trial court's decision in
imposing the term of imprisonment must be reviewed under an abuse
of discretion standard. Id.”
{¶ 20} At sentencing, the trial court heard the oral statements
of counsel for both parties and Defendant’s statement. The court
also informed Defendant about post release control requirements.
In its Journal Entry of Conviction and Sentence, the court
indicated that it had considered the purposes and principles of
felony sentencing, R.C. 2929.11, and had reviewed the presentence
investigation report. The court also once again advised Defendant
about post release control requirements. The court did not,
however, specifically state that it had considered the seriousness
and recidivism factors in R.C. 2929.12.
{¶ 21} Even if there is no specific statement in the record
by the trial court that the trial court considered the purposes
and principles of felony sentencing, R.C. 2929.11, or the
seriousness and recidivism factors, R.C. 2929.12, it is presumed
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that the trial court gave proper consideration to those statutes.
State v. Miller, Clark App. No. 09CA28, 2010-Ohio-2138, at ¶43;
Kalish, at fn. 4. We additionally note that the one year prison
term the court imposed on each offense is within the authorized
range of available punishments for felonies of the third and fifth
degree. R.C. 2929.14(A)(3, (5). Defendant’s sentence is not
contrary to law. Kalish.
{¶ 22} With respect to the severity of the sentence, the trial
court imposed concurrent one year prison terms on each offense.
While that represents the maximum sentence for the fifth degree
felony of trafficking in heroin, it also represents the minimum
sentence for the third degree felony of illegally conveying drugs
of abuse onto the grounds of a detention facility.
{¶ 23} The charges in this case resulted from Defendant bringing
heroin into the TriCounty Jail while he was serving weekends- only
in that jail for the misdemeanor offense of receiving stolen
property. The sentencing court had allowed Defendant to serve
his sentence on the weekends so he would not lose his job. Another
inmate at that jail asked Defendant to bring in heroin in exchange
for one hundred dollars, which Defendant did. Defendant committed
the offense in this case while he was serving his sentence for
a previous offense.
{¶ 24} Defendant’s criminal history includes a prior conviction
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for receiving stolen property and some trespassing and underage
consumption charges. Defendant has serious substance abuse
issues. Additionally, at the time of sentencing in this case,
Defendant had felony charges pending against him in Franklin County
for misuse of a credit card. The factors in R.C. 2929.12(D)(2)
and (3) indicating that Defendant is likely to commit future crimes
apply in this case.
{¶ 25} The overriding purposes of felony sentencing are to
protect the public from future crime by the offender and to punish
the offender. R.C. 2929.11(A). The trial court has discretion
to determine the most effective way to comply with the purposes
and principles of sentencing. R.C. 2929.12(A). We see no abuse
of discretion on the part of the trial court in imposing a one
year sentence in this case. This assignment of error lacks
arguable merit.
{¶ 26} In addition to reviewing the possible issues for appeal
raised by Defendant’s appellate counsel, we have conducted an
independent review of the trial court’s proceedings and have found
no error having arguable merit. Accordingly, Defendant’s appeal
is without merit and the judgment of the trial court will be
affirmed.
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DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Nick A. Selvaggio, Esq.
Jessica R. Moss, Esq.
Joshua Bateman
Hon. Roger B. Wilson