State v. Grant , 2023 Ohio 4614 ( 2023 )

[Cite as State v. Grant, 2023-Ohio-4614.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P. J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. CT2023-0023
JOSHUA A. GRANT :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2022-0370
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 14, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH CHRIS BRIGDON
PROSECUTING ATTORNEY 8138 Somerset Road
27 North Fifth Street Thornville, OH 43076
Box 189
Zanesville, OH 43702
[Cite as State v. Grant, 2023-Ohio-4614.]
Gwin, P.J.
{¶1} This matter comes before the Court upon the Motion to Withdraw and
Anders brief filed by counsel for Defendant-appellant Joshua D. Grant [Grant] after his
convictions and sentences following a negotiated Alford plea in the Muskingum County
Court of Common Pleas.
Facts and Procedural History
{¶2} On August 11, 2022, Grant was indicted in Muskingum County Court of
Common Pleas Case Number CR2022-0370 for five counts of Rape, felonies of the first
degree in violation of R.C. 2902.02(A)(2); one count of Attempted rape, a felony of the
second degree in violation of R.C. 2923.02(A) / 2907.02(A)(2); and one count of Gross
Sexual Imposition, a felony of the fourth degree in violation of R.C. 2907.05(A)(1).
{¶3} On February 13, 2023, Grant entered Alford pleas to amended counts one,
three and five, and to count four of the indictment, all charging Grant with Gross Sexual
Imposition, felonies of the fourth degree in violation of R.C. 2907.05(A)(1). T., Change of
Plea, February 13, 2023 at 3-4; Docket Entry Nos. 29; 31.
{¶4} On April 12, 2023, the state filed a motion to dismiss Counts Two, Six and
Seven of the Indictment. [Docket Entry No. 34]. On April 13, 2023, the trial court granted
the state’s motion to dismiss. [Docket Entry No. 35].
{¶5} On March 20, 2023, Grant came before the court for sentencing. However,
during the hearing the trial court inquired why only sexual contact was charged when the
allegations were more serious. Sent. T., March 20, 2023 at 14-15. Further, the trial court
noted that they had no statement from the victim or family in the PSI. Id. The trial judge
inquired of Grant some of the specific facts related to the case and a previous allegation
Muskingum County, Case No. CT2023-0023 3
made by the victim. Id. at 16-19. After hearing the responses, the trial judge determined
that he was not prepared to move forward on the sentencing that day. Id. at 19.
{¶6} On April 10, 2023, Grant returned to court for sentencing. The trial judge-
imposed sentences of 18 months on each of counts 1,3,4,5 to run consecutive to one
another for an aggregate prison term of 72 months.
Proposed Assignment of Error
{¶7} Grant’s attorney has set forth one Proposed Assignment of Error,
{¶8} I. THERE IS NOT A NONFRIVOLOUS ISSUE REGARDING THE
DEFENDANT'S CONVICTION OF COUNTS 1,3,4, AND 5 AND THE SUBSEQUENT
SENTENCING.”
{¶9} Grant’s appellate counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We informed Grant that his attorney
had filed an Anders brief on his behalf and granted him sixty days from August 7, 2023 to
file a pro se brief. Judgment Entry, filed Aug. 7, 2023. Grant has not filed a pro se brief.
Standard of Review - Anders v. California
{¶10} 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 should so advise the court and request permission to withdraw. 386 U.S. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with
a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise
any matters that the client chooses. Id. Once the defendant's counsel satisfies these
requirements, the appellate court must fully examine the proceedings below to determine
Muskingum County, Case No. CT2023-0023 4
if any arguably meritorious issues exist. If the appellate court also determines that 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.{¶11} “Anders equates a frivolous appeal with one that presents issues lacking in
arguable merit. An issue does not lack arguable merit merely because the prosecution
can be expected to present a strong argument in reply or because it is uncertain whether
a defendant will prevail on the issue on appeal. “An issue lacks arguable merit if, on the
facts and law involved, no responsible contention can be made that it offers a basis for
reversal.” State v. Pullen, 2nd Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4; State
v. Marbury, 2nd Dist. Montgomery App. No. 19226, 2003-Ohio-3242, ¶ 7-8; State v.
Chessman, 161 Ohio App.3d 140, 829 N.E.2d 748, 2005-Ohio-2511 (2nd Dist.), ¶ 16-17
(quoting the same).” State v. Moore, 2nd Dist. Greene App. No. 07-CA-97, 2009-Ohio-
1416, ¶4.
The Alford Plea
{¶12} An Alford plea is a plea of guilty with a contemporaneous protestation of
innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). A
court may accept an Alford plea if the following requirements are met:
Where the record affirmatively discloses that: (1) defendant’s guilty
plea was not the result of coercion, deception or intimidation; (2) counsel
was present at the time of the plea; (3) counsel’s advice was competent in
light of the circumstances surrounding the indictment; (4) the plea was
made with the understanding of the nature of the charges; and, (5)
Muskingum County, Case No. CT2023-0023 5
defendant was motivated either by a desire to seek a lesser penalty or a
fear of the consequences of a jury trial, or both, the guilty plea has been
voluntarily and intelligently made.
State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), paragraph one of the syllabus.
In order to trigger the more detailed Criminal Rule 11 colloquy as required by an Alford
plea, there must be a written affirmative assertion of an Alford notation on the plea form
and some affirmation to the trial court of an Alford plea. State v. Evans, 5th Dist. Licking
No. 2020 CA 00039, 2021-Ohio-829.
{¶13} In the case at bar, Grant’s written plea is titled “Alford Plea.” [Docket Entry
No. 29]. During the change of plea hearing, there was an affirmation to the trial judge that
Grant was entering an Alford plea. T., Change of Plea, February 13, 2023 at 3;16. The
prosecutor informed the trial judge and the parties of the facts underlying the amended
charges to which Grant was entering his plea. Id. at 12-15.
{¶14} 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.
Issue for Appellate Review: Whether the record reflects any arguably
meritorious issues exist with respect to whether Grants’ Alford plea was made
knowingly, intelligently, and voluntarily.
{¶15} Evidence of a written waiver form signed by the accused is strong proof that
the waiver was valid. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844, 854(1988);
see North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758-1759, 60
Muskingum County, Case No. CT2023-0023 6
L.Ed.2d 286, 293(1979); State v. Dennis, 79 Ohio St.3d 421, 425, 1997-Ohio-372, 683
N.E.2d 1096, 1102(1997). In the case at bar, we note a written plea of guilty form was
signed by Grant and his attorney, and filed in this case. Grant’s attorney acknowledged
to the trial judge that Grant read the plea forms, and he believes that Grant was moving
forward knowingly, intelligently and voluntarily. T., Change of Plea, February 13, 2023 at
5.
{¶16} The trial judge explained to Grant his right to a jury trial. T., Change of Plea,
February 13, 2023 at 10. The trial judge further explained Bales’ right to the confrontation
of witnesses against him; the compulsory process for obtaining witnesses in his favor;
that the state must prove the defendant’s guilt beyond a reasonable doubt at trial; and
that the defendant cannot be compelled to testify against himself. Id. at 10-11. The judge
also explained the maximum penalties involved, which included an advisement on post-
release control. Id. at 5-6; 7-8. The judge informed Grant that he would be found to be a
Tier I sex offender for registration purposes. Id. at 6.
{¶17} The record demonstrates the trial court very carefully adhered to Criminal
Rule 11, and strictly complied with all of the requirements of Criminal Rule 11. The trial
court conducted a complete and thorough colloquy. Grant acknowledged he understood
his rights, the charges, the plea agreement, the maximum penalties, and the specific
constitutional rights he was waving with the plea. The record further supports that the trial
judge substantially complied with Crim.R. 11’s mandates for non-constitutional rights.
{¶18} The record supports a conclusion that the plea was properly entered and
accepted. The record supports that as originally charged Grant was facing a potential
maximum sentence of approximately ninety-six years for felonies of the first and second
Muskingum County, Case No. CT2023-0023 7
degree. By pleading to the amended charges, Grants exposure was reduced to six years.
{¶19} The record affirmatively discloses that: (1) Grant’s guilty plea was not the
result of coercion, deception or intimidation; (2) counsel was present at the time of the
plea; (3) counsel’s advice was competent in light of the circumstances surrounding the
indictment; (4) the plea was made with the understanding of the nature of the charges;
and, (5) Grant was motivated either by a desire to seek a lesser penalty or a fear of the
consequences of a jury trial, or both.
{¶20} Thus, after independently reviewing the record we find no arguably
meritorious issues exist with respect to whether Grant’s guilty plea was made knowingly,
intelligently, and voluntarily.
Sentence
{¶21} Before a trial court imposes consecutive sentences, it must make specific
findings which are delineated in R.C. 2929.14(C)(4). Specifically, the trial court must find
that “the consecutive service is necessary to protect the public from future crime or to
punish the offender.” Id. It must also find that “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” Id. Finally, the court must find at least one of the following:
(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
Muskingum County, Case No. CT2023-0023 8
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.
{¶22} R.C. 2953.08(G)(2) does not allow an appellate court to reverse or modify
a defendant’s consecutive sentences using the principles and purposes of felony
sentencing as set forth in R.C. 2929.11(A) and (B) and the seriousness and recidivism
factors in R.C. 2929.12. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141
N.E.3d 169, ¶13-18. (“Gwynne II”); State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,
169 N.E.3d 649, ¶39; State v. Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d
784, ¶10.
{¶23} The Ohio Supreme Court has recently spoken on the standard by which an
appellate court should review a trial court’s consecutive sentences findings. In State v.
Gwynne, Slip Opinion No. 2023-Ohio-3851, ¶ 5, the Ohio Supreme Court reconsidered
its prior decision in State v. Gwynne, 2022-Ohio-4607, --- N.E.3d ---, and held that “[t]he
plain language of R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s
consecutive-sentence findings, and the trial court’s findings must be upheld unless those
findings are clearly and convincingly not supported by the record.”
{¶24} “[N]o statute directs a sentencing court to give or state reasons supporting
imposition of consecutive sentences” nor does Crim.R. 32(A)(4) require a trial court “to
give reasons supporting its decision to impose consecutive sentences.” State v. Bonnell,
Muskingum County, Case No. CT2023-0023 9
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27.
Issue for appellate review: Whether the record reflects any arguably
meritorious issues exist with respect to whether Grant’s sentence is contrary to law.
{¶25} In the case at bar, the trial judge reviewed the pre-sentence investigation
report. Sent. T., Apr. 10, 2023 at 10. The trial judge reviewed letters submitted on Grant’s
behalf, considered Grant’s age, lack of criminal history, and his family. Id. at 7-9; 10. The
trial judge heard arguments from the prosecutor and from Grant’s attorney. Grant also
made a statement before the judge imposed the sentence. Id. at 9-10.
{¶26} The trial judge found Grant to be unremorseful. Id. at 10. He found the
victim’s account to be more credible than Grant’s denials. Id. The judge detailed the abuse
Grant inflicted multiple times upon his minor victim. Id. at 10-11.
{¶27} The trial judge found consecutive sentences were necessary to protect the
public from future crime and to punish this offender. The trial court further found that
consecutive sentences are not disproportionate to the seriousness of Grant’s conduct and
to the danger he poses to the public. Id. at 12. Further, the judge found that the harm
caused by 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 were so great or unusual that no single prison term for any of the offenses
committed as part of any courses of conduct adequately reflects the seriousness of
Grant’s conduct. Id.
{¶28} In this case, the record does support a conclusion that the trial judge made
all of the findings required by R.C. 2929.14(C)(4) at the time he imposed consecutive
sentences.
Muskingum County, Case No. CT2023-0023 10
{¶29} Upon review, we find that the trial court’s sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. We also find that the record in the case at bar supports the
trial court’s findings under R.C. 2929.14(C)(4).
{¶30} Thus, after independently reviewing the record we find no arguably
meritorious issues exist with respect to whether Grant’s sentence was contrary to law.
Conclusion
{¶31} 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.
{¶32} Attorney Chris Brigdon’s motion to withdraw as counsel for Appellant is
hereby granted.
Muskingum County, Case No. CT2023-0023 11
{¶33} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur