State v. McCoy , 2023 Ohio 1539 ( 2023 )

[Cite as State v. McCoy, 2023-Ohio-1539.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2022-P-0059
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
TAIJH R. MCCOY,
Trial Court No. 2022 CR 00632
Defendant-Appellant.
OPINION
Decided: May 8, 2023
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Wesley C. Buchanan, 50 South Main Street, Suite 625, Akron, OH 44308; and
Anna K. Ley, 803 East Washington Street, Suite 110, Medina, OH 44256 (For
Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Taijh R. McCoy, appeals the judgment of the Portage County
Court of Common Pleas convicting him on one count of cruelty to a companion animal, in
violation of R.C. 959.131(C), a felony of the fifth degree. We affirm.
{¶2} In April 2022, appellant was at home with Jewel McFarland. Ms. McFarland
had a dog, Ginger, a two-year-old Yorkie. At some point, a glass of juice was spilled on
the dog. Appellant took the dog into the bathroom to wash the animal. In the course of
“bathing” the animal, appellant subjected the dog to significant second and third degree
burns from scalding water. The animal had to be euthanized.
{¶3} Appellant was indicted by the Portage County Grand Jury on one count of
knowingly causing serious physical harm to a companion animal, in violation of R.C.
959.131(C), a felony of the fifth degree. Appellant ultimately entered into a plea of guilty
to the charge. After conducting a thorough Crim.R. 11 colloquy, the court found appellant
guilty. Appellant was sentenced to an 11-month term of imprisonment. This appeal
follows.
{¶4} After reviewing the record, counsel filed a merit brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting four potential
errors for this court’s consideration.
{¶5} In Anders, the United States Supreme Court held that if appellate counsel,
after a conscientious examination of the record, finds an appeal to be wholly frivolous, he
or she should advise the court and request permission to withdraw. Id. at 744. This
request to withdraw must be accompanied by a brief citing anything in the record that
could arguably support an appeal. Id. Further, counsel must furnish his or her client with
a copy of the brief and request to withdraw and give the client an opportunity to raise any
additional items. Id. Once these requirements have been met, the appellate court shall
review the entire record and determine whether the appeal is wholly frivolous. Id. If the
court finds the appeal is wholly frivolous, the court may grant counsel’s motion to withdraw
and proceed to a decision on the merits. Id. If, however, the court concludes the appeal
is not frivolous, it must appoint new counsel for the client. Id.; see also Penson v.
Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
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{¶6} Pursuant to Anders, counsel’s brief was properly served on
appellant. Appellant, however, did not file a supplemental brief.
{¶7} Counsel’s first and second proposed assignments of error are related. They
provide, respectively:
{¶8} “[1.] The trial court failed to conform to the Crim.R. 11 requirements.
{¶9} “[2.] Taijh’s plea was not knowingly, intelligently, or voluntarily entered into.”
{¶10} In a felony case, “the court * * * shall not accept a plea of guilty * * * without
first addressing the defendant personally” and complying with the requirements of Crim.R.
11 to determine the voluntary nature of the plea. Crim.R. 11(C)(2). To this end, the trial
court must ensure the defendant understands the charges and maximum penalty; the
court must also inform the defendant of the effect of his plea and that the court may
proceed to judgment and sentencing; and the court must advise the defendant of rights
waived by entering the plea. Crim.R. 11(C)(2)(a)-(c). These constitutional rights include
“the rights to jury trial, to confront witnesses against him or 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.” Crim.R. 11(C)(2)(c).
{¶11} A trial court must “strictly comply with Crim.R. 11(C)(2)(c) and orally advise
a defendant” of the constitutional rights contained therein or his plea is rendered
invalid. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31. For
the nonconstitutional portions of Rule 11, the applicable standard is “substantial
compliance” which means that “under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights he is waiving.”
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(Citations omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “[A]
defendant who challenges his guilty plea on the basis that it was not knowingly,
intelligently, and voluntarily made must show a prejudicial effect.” (Citations omitted.) Id.The test for prejudice is “whether the plea would have otherwise been made.” (Citation
omitted.) Id.{¶12} At the plea hearing, the trial court advised appellant of the maximum penalty
he was facing by pleading guilty. The trial court also advised appellant that, upon
accepting the plea, it could proceed to sentencing. Regarding the waiver of appellant’s
constitutional rights, the court specifically stated, by entering his plea, appellant was:
giving up your right to a trial by jury. At that trial, the
prosecutor would have to prove, beyond a reasonable
doubt, each and every element of the charges against
you. Your attorney could cross-examine and confront
the witnesses who come in and testify for the State of
Ohio. You could subpoena or compel witnesses, have
them come in and testify for you, and you can take the
stand at your trial, if you chose to do so. You have a
constitutional right not to testify, but if you wanted to,
you could.
{¶13} The trial court then confirmed that appellant understood he was giving up
the various constitutional rights. And, finally, the trial court asked appellant if he
understood that his plea of guilty was an admission of each and every element of the
charges. Appellant stated he understood.
{¶14} In light of the foregoing, we conclude the trial court fully conformed to the
requirements of Crim.R. 11. We further hold the record supports the conclusion that
appellant’s plea was knowingly, intelligently, and voluntarily entered. Appellant did not
express any misgivings or concerns about entering the plea and he expressly stated he
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understood the ramifications of doing so and was entering the same of his own free will.
Counsel’s first two potential assignments of error lack merit.
{¶15} The next potential assigned error provides:
{¶16} “Taijh received ineffective assistance of counsel when entering his plea.”
{¶17} To establish his claim that his counsel provided ineffective assistance, an
appellant must demonstrate (1) his counsel was deficient in some aspect of his
representation, and (2) there is a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶18} One of the inquiries in a claim of ineffective assistance of counsel is whether
there was actual error on the part of appellant’s trial counsel. State v. McCaleb, 11th Dist.
Lake No. 2002-L-157, 2004-Ohio-5940, ¶ 92. In Ohio, every properly licensed attorney is
presumed to be competent, and therefore a defendant bears the burden of proof. State
v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Counsel’s performance will not
be deemed ineffective unless and until the performance falls below an objective standard
of reasonable representation and, in addition, prejudice arises from counsel’s
performance. See generally Strickland.
{¶19} Here, there is nothing to indicate appellant could satisfy the first prong of
deficient performance. During the plea hearing the trial court asked appellant if his
attorney reviewed the written plea of guilty with him. Appellant stated counsel did so.
And the trial court asked appellant if he was satisfied with counsel’s performance. He
again responded he was satisfied. Appellant did not hesitate or dither when the court
asked about his attorney’s performance. And, at no point, did appellant take issue with
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any aspect of the plea negotiations or the manner in which counsel managed his interests
during the negotiations. We therefore conclude that, because appellant’s plea was
entered knowingly, intelligently, and voluntarily, and there is no evidence of deficient
performance on counsel’s behalf, appellant cannot establish ineffective assistance.
Counsel’s third proposed assignment of error lacks merit.
{¶20} Counsel’s final proposed assignment of error provides:
{¶21} “Taijh was sentenced contrary to law.”
{¶22} Pursuant to R.C. 2929.11(A), “[a] court that sentences an offender for a
felony shall be guided by the overriding purposes of felony sentencing,” and it “shall
consider the factors * * * relating to the seriousness of the conduct” and “to the likelihood
of the offender’s recidivism.” R.C. 2929.12(A).
{¶23} R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, and it “may increase,
reduce, or otherwise modify a sentence that is appealed under this section or may vacate
the sentence and remand * * * if it clearly and convincingly finds * * * [t]hat the sentence
is * * * contrary to law.” R.C. 2953.08(G)(2)(b); State v. Meeks, 11th Dist. Ashtabula No.
2022-A-0060, 2023-Ohio-988, ¶ 11.
{¶24} “A sentence is contrary to law when it is ‘in violation of statute or legal
regulations’ * * *.” Meeks at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
6729, 169 N.E.3d 649, ¶ 34. Thus, “‘[a] sentence is contrary to law when it does not fall
within the statutory range for the offense or if the trial court fails to consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors
set forth in R.C. 2929.12.’” State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-
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Ohio-789, ¶ 11, quoting State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-
Ohio-199, ¶ 74; see also State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-
7127, ¶ 18. The Supreme Court has further held that a sentence is contrary to law if “it is
imposed ‘based on factors or considerations that are extraneous to those [seriousness
and recidivism factors] that are permitted by R.C. 2929.11 and 2929.12.’” Meeks at ¶ 11,
quoting State v. Bryant, 168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶ 22. “But
an appellate court’s determination that the record does not support a sentence does not
equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is
used in R.C. 2953.08(G)(2)(b).” Jones at ¶ 32.
{¶25} Further, this court has frequently noted that “even though a trial court is
required to consider the R.C. 2929.11 and R.C. 2929.12 factors, it is not required to make
specific findings on the record to comport with its statutory obligations.” Shannon at ¶ 17,
citing State v. Parke, 11th Dist. Ashtabula No. 2011-A-0062, 2012-Ohio-2003, ¶ 24; State
v. Blake, 11th Dist. Lake No. 2003-L-196, 2005-Ohio-686, ¶ 16.
{¶26} Here, appellant was found guilty of a fifth-degree felony, punishable by up
to 12 months in prison. R.C. 2929.14(A)(5). After considering the relevant statutory
factors and making various findings on record, the trial court sentenced appellant to a
term of 11-months imprisonment, a term within the statutory range. Further, the trial court
pointed out that R.C. 2929.13(B)(1) creates a presumption for community control; the
court observed, however, that the presumption was overcome because appellant had
been previously sent to prison. See R.C. 2929.13(B)(1)(b)(ix). We discern no error or
irregularity in the trial court’s imposition of sentence. Therefore, counsel’s final proposed
assigned error lacks merit.
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{¶27} After a thorough and independent review of the record, we hold the trial
court did not err in accepting appellant’s plea of guilty nor did it err in imposing sentence.
Further, there is no indication that counsel was ineffective such that appellant’s plea
would be rendered invalid. Finally, we discern no colorable issue(s) on the current record
that would merit the appointment of new counsel. Thus, there are no arguable legal points
on the merits of this matter. Appellant’s appeal is without merit and is wholly frivolous.
{¶28} Because there are no arguable issues in this appeal, the request to
withdraw filed by appellate counsel is well-taken and is hereby granted. The judgment of
the Portage County Court of Common Pleas is affirmed.
JOHN J. EKLUND, P.J.,
MARY JANE TRAPP, J.,
concur.
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