State v. Johnston , 2023 Ohio 1392 ( 2023 )

[Cite as State v. Johnston, 2023-Ohio-1392.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
-vs- :
: Case No. CT2022-0076
:
HENRY F. JOHNSTON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2022-0267
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 27, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD WELCH CHRIS BRIGDON
MUSKINGUM COUNTY PROSECUTOR 813 Somerset Rd.
27 N. 5th St., P.O. Box 189 Thornville, OH 43076
Zanesville, OH 43702
Muskingum County, Case No. CT2022-0076 2
Delaney, J.
{¶1} Defendant-Appellant Henry F. Johnston appeals his convictions and
sentence by the Muskingum County Court of Common Pleas for two counts of Gross
Sexual Imposition, in violation of R.C. 2907.05(A)(4) and 2907.05(B). Plaintiff-Appellee is
the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On June 8, 2022, the Muskingum County Grand Jury indicted Defendant-
Appellant Henry F. Johnston on four counts of Gross Sexual Imposition, with a sexually
violent predator specification, and one count of Kidnapping, with a sexually violent
predator specification and a sexual motivation specification. The charges were based on
his touching of a minor child for sexual gratification purposes. Johnston was arraigned on
June 29, 2022, and entered a plea of not guilty to the charges.
{¶3} Johnston appeared for a change of plea hearing on August 31, 2022.
Johnston and the State entered into a plea agreement where Johnston withdrew his
general plea of not guilty and entered a plea of guilty to (1) Count One, Gross Sexual
Imposition, as amended, a third-degree felony in violation of R.C. 2907.05(A)(4), and (2)
Count Three, Gross Sexual Imposition, as amended, a third-degree felony in violation of
R.C. 2907.05(B). (T. 3-4). Johnston was required to register as a Tier III sex offender. (T.
4). The parties agreed the State would make no recommendation as to sentencing but
both parties reserved the right to argue for the appropriate sentence. (T. 4). The State
agreed to dismiss the sexually violent predator specification attached to Counts One,
Two, Three, Four, and Five. (T. 4).
Muskingum County, Case No. CT2022-0076 3
{¶4} The trial court engaged in the plea colloquy and accepted Johnston’s guilty
pleas. (T. 5 – 11, 14). Johnston was currently serving a 54-month prison term until 2025
based on his conviction for Gross Sexual Imposition against his minor granddaughter in
Case No. CR2020-0379, but the trial ordered a presentence investigation prior to
sentencing. (T. 14).
{¶5} Johnston appeared for his sentencing hearing on October 3, 2022. The
State made its recommendation for sentencing, which was more than the minimum 54
months, as Johnston was sentenced in the previous criminal action. (T. 6). The trial court
then reviewed the Tier III sex offender registration with Johnston, where he found
Johnston was a Tier III sex offender for registration purposes. (T. 6-7). Johnston
requested a sentence concurrent to the sentence in his prior conviction for Gross Sexual
Imposition, for which he was currently serving prison time. (T. 10). The trial court stated
it reviewed the presentence investigation, the case file, and the victim impact statements.
Based on the facts and circumstances of the case, the trial court sentenced Johnston to
48 months on Count One and 48 months on Count Two, to be served consecutively, for
an aggregate prison term of 96 months. (T. 12). The trial court found consecutive
sentences were necessary to protect the public and punish the offender, and not
disproportionate to the seriousness of the conduct and the danger posed to the public.
(T. 12). Johnston committed at least two of the multiple offenses as part of one or more
courses of conduct, the harm of which was so great or unusual that no single prison term
could adequately reflect the seriousness of the conduct. (T. 13). Finally, the trial court
found consecutive sentences were necessary based on Johnston’s history of criminal
conduct. (T. 13). Johnston’s conviction in Case No. 2020-0379 was based on gross
Muskingum County, Case No. CT2022-0076 4
sexual imposition against his minor granddaughter; and in this case, he was charged with
gross sexual imposition against a minor child he was babysitting.
{¶6} The trial court issued its sentencing entry on October 7, 2022.
Anders Appeal
{¶7} Appellate counsel for Johnston has filed a Motion to Withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), rehearing den., 388 U.S. 924,
indicating the within appeal is wholly frivolous.
{¶8} 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 or she should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany the request with a brief identifying anything in the record which
could arguably support the appeal. Id. Counsel also must: (1) furnish the client with a
copy of the brief and request to withdraw and (2) allow the client sufficient time to raise
any matters 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 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.
{¶9} Johnston’s counsel has filed a brief identifying two arguably meritorious
issues in the record: whether the trial court erred in accepting Johnston’s guilty pleas and
imposing consecutive sentences.
Muskingum County, Case No. CT2022-0076 5
{¶10} We find Johnston’s counsel has followed the procedures required by
Anders.
Change of Plea
{¶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 “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).
{¶12} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses
against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the
state must prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that the
defendant cannot be compelled to testify against himself. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with
these requirements, the defendant's plea is invalid. Id. at ¶ 31.
{¶13} The non-constitutional rights that the defendant must be informed of are:
(1) the nature of the charges; (2) the maximum penalty involved, which includes, if
applicable, an advisement on post-release control; (3) if applicable, that the defendant is
not eligible for probation or the imposition of community control sanctions; and (4) that
after entering a guilty plea or a no contest plea, the court may proceed directly to judgment
and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26, (postrelease control is a non-
constitutional advisement).
Muskingum County, Case No. CT2022-0076 6
{¶14} For the non-constitutional rights, the trial court must substantially comply
with the mandates of Crim.R. 11. 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.” Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the
basis that the advisement for the non-constitutional rights did not substantially comply
with Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would
not have been otherwise entered. Veney at ¶ 15; State v. Stewart, 51 Ohio St.2d 86, 93,
364 N.E.2d 1163(1977).
{¶15} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de
novo standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d
474(1990); State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶9; State
v. Groves, 5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025, ¶7.
{¶16} We have reviewed the transcript of the hearing at which the trial court
conducted the plea colloquy required by Crim.R. 11 and we find the trial court substantially
complied with Crim.R. 11(C)(2)(a) and (b) and strictly complied with Crim.R. 11(C)(2)(c).
The record supports that the trial court engaged in a proper plea colloquy, and that the
trial court accepted Johnston’s plea and properly proceeded to sentencing.
Sentencing
{¶17} Johnston pleaded guilty to two counts of Gross Sexual Imposition, both
third-degree felonies. This Court reviews felony sentences using the standard of review
set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
Muskingum County, Case No. CT2022-0076 7
N.E.3d 1231, ¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049,
¶ 31. Subsection (G)(2) sets forth this Court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard of review is not whether the sentencing court abused its discretion.
The appellate court may take any action authorized by this division if it
clearly and convincingly finds either of the following:
(a) That record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929 of the Revised Code, whichever, if
any, is relevant;
(b) That the sentence is contrary to law.
{¶18} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
Muskingum County, Case No. CT2022-0076 8
{¶19} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.’ ” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶20} Upon review, we find the sentence imposed is not clearly and convincingly
contrary to law. The sentence is within the statutory range for a felony of the third degree,
and the trial court considered the R.C. 2929.11 and 2929.12 factors.
{¶21} The trial court also ordered that Johnston’s sentences be served
consecutively with one another for an aggregate term of 96 months, which was to be
served consecutively to the sentence Johnston was currently serving in Case No.
CR2020-0379.
{¶22} Pursuant to R.C. 2929.14(C)(4), the trial court must make specific findings
to impose consecutive sentences:
(4) 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:
Muskingum County, Case No. CT2022-0076 9
(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.
{¶23} At the sentencing hearing and in the October 7, 2022 sentencing entry, the
trial court made the requisite findings. The trial court recited the facts and stated when
Johnston pleaded guilty in this case, he showed no remorse. (T. 11). The multiple acts of
sexual abuse occurred when Johnston was babysitting the minor child, who was 9 or 10
years of age when the abuse occurred. (T. 12). The trial court’s findings pursuant to R.C.
2919.14(C)(4) are supported by the record.
{¶24} We find no merit in the proposed Assignments of Error, and they are hereby
overruled. Furthermore, after independently reviewing the record, we agree with appellate
counsel's conclusion that no arguably meritorious claims exist upon which to base an
appeal. We therefore find the appeal to be wholly frivolous under Anders, grant counsel's
request to withdraw, and affirm the judgment of the trial court.
Muskingum County, Case No. CT2022-0076 10
CONCLUSION
{¶25} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, J.,
Wise, P.J. and
King, J., concur.