State v. Watson ( 2024 )

[Cite as State v. Watson, 2024-Ohio-504.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2023-P-0056
2023-P-0057
Plaintiff-Appellee,
Criminal Appeals from the
- vs - Court of Common Pleas
MICHAEL A. WATSON a.k.a.
MICHEAL A. WATSON, Trial Court Nos. 2022 CR 00471
2023 CR 00456
Defendant-Appellant.
OPINION
Decided: February 12, 2024
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Eric R. Fink, 11 River Street, Kent, OH 44240 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Appellant, Michael A. Watson, appeals his sentence for domestic violence
and the revocation of community control sanctions from the Portage County Court of
Common Pleas. 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), stating there are no meritorious issues
for appeal and thus, these matters are wholly frivolous. After independent review of the
record, we agree with appellate counsel. The judgment of the trial court is affirmed, and
appellate counsel's motion to withdraw is granted.
{¶2} On April 28, 2022, the Portage County grand jury indicted appellant on one
count of domestic violence, a third-degree felony, in violation of R.C. 2919.25(A), in Case
No. 2022 CR 471. Appellant entered a not guilty plea at arraignment and bond was set at
$20,000 cash or surety, with the condition that appellant have no contact with the victim.1
The trial court also granted a temporary protection order.
{¶3} On August 5, 2022, pursuant to a plea agreement, appellant entered a plea
of guilty to an amended indictment of domestic violence, a fourth-degree felony. At the
plea hearing, the court advised appellant of the rights he waives by pleading guilty. The
court advised appellant of his right to a jury trial, the State’s burden of proof, his right to
cross-examine and confront witnesses, to call his own witnesses, to testify on his own
behalf as well as his limited appellate rights. Appellant was asked if he understood the
rights as explained by the trial court and he replied affirmatively. These rights were also
detailed in the written plea of guilty signed by appellant and his counsel. The trial court
concluded that appellant knowingly and voluntarily waived his rights and accepted his
guilty plea. The trial court ordered a pre-sentence investigation and reinstated bond. The
trial court lifted the temporary protection order at the victim’s request.
{¶4} Sentencing was held on October 11, 2022. At sentencing, the victim
requested that the temporary protection order be reinstated. Due to appellant’s placement
at Oriana House, a term and condition of probation in a separate and unrelated case, the
1. The transcripts from the arraignment indicate the trial court imposed a cash or surety bond, however,
according to the docket, there were two separate bond filings, the second of which, indicate a $20,000
personal recognizance bond was ordered.
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trial court placed appellant on community control for three years with conditions.2 The trial
court further issued a no contact order as a condition of appellant’s community control.
{¶5} On December 14, 2022, a Motion to Revoke and Capias Request was filed
in the 2022 case. A capias was issued for appellant’s arrest the same day.
{¶6} On April 27, 2023, the Portage County Grand Jury returned a two-count
indictment charging appellant with domestic violence, a third-degree felony, in violation
of R.C. 2919.25(A), and violation of a protection order, a third-degree felony, in violation
of R.C. 2919.27. This case involved the same victim as the 2022 case. Appellant entered
a not guilty plea at arraignment and bond was set at $50,000, 10% cash or surety. The
trial court once again issued a no contact order as a condition of bond.
{¶7} On June 5, 2023, pursuant to a plea agreement, appellant entered a guilty
plea to domestic violence, a third-degree felony, as charged in the indictment. The State
dismissed the remaining count.
{¶8} At the plea hearing, the court advised appellant of the rights he waived by
pleading guilty. The court advised appellant of his right to a jury trial, the State’s burden
of proof, his right to cross-examine and confront witnesses, to call his own witnesses, and
to testify on his own behalf. Appellant was asked if he understood the rights as explained
by the trial court and he replied affirmatively.3 These rights were also detailed in the
written plea of guilty signed by appellant and his counsel. The trial court concluded that
appellant knowingly and voluntarily waived his rights and accepted his guilty plea. The
2. At the sentencing hearing, the trial court indicated that appellant would be sentenced to community
control and also imposed a prison term of 6-18 months which the trial court suspended. The sentencing
entry does not reflect this. The trial court reiterated the suspended sentence, however, at the revocation
hearing.
3. At the July 17, 2023 sentencing hearing, appellant claimed he could not read or write.
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trial court ordered a pre-sentence investigation and assessments for NEOCAP and Root
House. The court further indicated that the motion to revoke community control, pending
in the 2022 case, would be addressed at sentencing.
{¶9} A sentencing hearing was held on the 2023 domestic violence conviction as
well as the community control violation in the 2022 case on July 17, 2023. The trial court
sentenced appellant to 24 months on the 2023 case, and 18 months on the community
control violation in the 2022 case. The court ordered the sentences to be served
consecutively to each other for an aggregate prison term of 42 months.
{¶10} Appellant timely appeals. On October 17, 2023, counsel filed appellant’s
brief pursuant to Anders, supra, asserting that no meritorious issues upon which to base
an appeal exist after a thorough review of the record. Appellate counsel requested to
withdraw and set forth the following potential assignments of error:
[1]. “In either or both the 2022 or 2023 case, the defendant-
appellant’s plea was not knowingly, intelligently, or voluntarily
entered into and is therefore contrary to law.”
[2]. “The trial court’s imposition of consecutive sentences is
contrary to law.”
[3]. “The trial court violated Mr. Watson’s due process rights
when it revoked Mr. Watson’s probation without obtaining a
waiver from Mr. Watson or conducting an evidentiary
hearing.”
{¶11} The Supreme Court of the United States has 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. Anders at 744.
Counsel’s request to withdraw must also include a brief which cites anything in the record
that could arguably support the appeal. Id. Counsel is required to provide his or her client
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with a copy of the brief and his or her request to withdraw and give the client an
opportunity to raise any other issues. Id. When these conditions have been met, the
appellate court will review the entire record to determine whether the appeal is wholly
frivolous. Id. If the court finds the appeal 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. Accord
State v. Pal, 11th Dist. Ashtabula No. 2021-A-0007, 2021-Ohio-3706, ¶ 14.
{¶12} On November 17, 2023, this Court granted appellant thirty (30) days “to file
his own submission, if he so chooses, which raises any arguments in support of the
appeals.” This Court held counsel's request to withdraw in abeyance. Appellant has not
filed any further brief or memorandum in support of his appeal. As there is no requirement
to respond, the State did not file an brief. Accordingly, we proceed to conduct an
independent review of the record pursuant to Anders.
{¶13} In his first potential assignment of error, appellate counsel argues that
“defendant-appellant’s plea was not knowingly, intelligently, or voluntarily entered into and
is therefore contrary to law.”
{¶14} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Fedyszyn, 11th Dist. Portage No. 2023-P-0035, 2023-
Ohio-4267, ¶ 10, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
Crim.R. 11 outlines the procedure a trial court must follow before accepting guilty pleas.
State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 9.
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{¶15} Crim.R. 11(C)(2) provides, in relevant part:
In felony cases the court * * * shall not accept a plea of guilty
* * * without first addressing the defendant personally * * * and
doing all of the following:
(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.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty * * *, and
that the court, upon acceptance of the plea, may proceed with
judgment and sentence.
(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 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.
{¶16} A review of the plea hearing transcripts demonstrates that the trial court
engaged in a plea colloquy with appellant in both cases and fully complied with Crim.R.
11(C)(2). Appellant’s pleas were knowingly, voluntarily, and intelligently made. We find
no meritorious claims as to the pleas. The potential assignment of error is without merit.
{¶16} In his second potential assignment of error, appellate counsel argues that
“the imposition of consecutive sentences was contrary to law.”
{¶17} The trial court sentenced appellant to 24 months on the 2023 case and upon
revoking his community control, the court imposed an 18-month sentence in the 2022
case. The court ordered the sentences to be served consecutively to each other for an
aggregate prison term of 42 months.
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{¶18} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). The appellate court “may vacate the sentence and remand
the matter to the sentencing court for resentencing[,] * * * if it clearly and convincingly
finds * * * the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).
{¶19} There is a statutory presumption in favor of concurrent sentences. R.C.
2929.41(A). However, R.C. 2929.14(C)(4) provides:
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:
(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.
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{¶20} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, ¶ 37. Additionally, “as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
In other words, “‘if the court has properly made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless we “clearly and
convincingly” find “[t]hat the record does not support the court's findings[.]”’” State v.
Haynes, 11th Dist. Lake No. 2022-L-009, 2022-Ohio-4464, ¶ 48, quoting State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th Dist.), quoting R.C. 2953.08(G)(2)(a). See
State v. Passalacqua, 11th Dist. Lake No. 2023-L-013, 2023-Ohio-3525, ¶ 28.
{¶21} During the sentencing hearing, the trial court stated:
* * * You have numerous domestic violence charges, a
number of convictions, along with certainly other violent
offenses. So, I am going to find that you are not amenable to
community control sanctions and that a prison sentence is
consistent with the purposes and principles of sentencing. * *
* I’m finding that consecutive sentences are necessary to
protect the public from future crime, to punish you, and are not
disproportionate to the seriousness of your conduct. I am
specifically finding that this offense was committed while you
were on community control and that qualifies for consecutive
sentencing.
{¶22} These findings were incorporated in the sentencing entry. Therefore, the
trial court’s imposition of consecutive sentences complies with R.C. 2929.14(C)(4).
Accordingly, appellant’s second potential assignment of error is without merit.
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{¶23} In his third and final potential assignment of error, appellate counsel asserts
that “[t]he trial court violated [appellant]’s due process rights when it revoked [appellant]’s
probation without obtaining a waiver from [appellant] or conducting an evidentiary
hearing.”
{¶24} This Court discussed in State v. Wright, 11th Dist. Ashtabula No. 2021-A-
0029, 2022-Ohio-2100, ¶ 14:
‘[A] revocation of community control punishes the failure to
comply with the terms and conditions of community control,
not the specific conduct that led to the revocation.’ State v.
Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, ¶17.
Crim.R. 32.3, which governs revocation of community control,
provides that the trial court ‘shall not impose a prison term for
violation of the conditions of a community control sanction or
revoke probation except after a hearing at which the
defendant shall be present and apprised of the grounds on
which action is proposed.’
{¶25} “Community control violation proceedings are not equivalent to criminal
prosecutions.” Black, supra, at ¶ 12. “Nevertheless, a defendant is entitled to certain due
process protections before a court may revoke community-control sanctions.” Wright at ¶
15.
{¶26} “First, a defendant is entitled to a preliminary hearing to determine whether
there is probable cause to believe that the defendant has violated the terms of his or her
community control.” (Citations omitted). Id. “Second, due process requires a final hearing
to determine whether community control should be revoked.” Id.
{¶27} Appellate counsel alleges that “neither [appellant] nor his [trial] counsel ever
specifically waived [appellant]’s right to [a full] hearing.” In other words, appellant argues
that the second prong was not met.
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{¶28} At the plea hearing, the trial court, after accepting appellant’s plea in the
2023 case, stated: “* * * Did we address the -- we didn't address the Motion to Revoke
yet. We can do that at sentencing if you want.” Appellant’s counsel replied, “Yes, Judge.
Thank you.” However, in its June 7, 2023 entry, the trial court noted that a hearing on the
motion to modify sanctions was held, and the trial court determined that appellant violated
the terms of his community control sanctions imposed in the 2022 case. The court set the
matter for sentencing with the 2023 case.
{¶29} It is well established that a court speaks through its journal entries. State v.
Liddy, 2022-Ohio-4282, 202 N.E.3d 172, ¶ 64 (11th Dist.), citing State v. Miller, 127 Ohio
St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12, Schenley v. Kauth, 160 Ohio St. 109,
111, 113 N.E.2d 625 (1953). Here, the trial court noted that a hearing occurred wherein
the trial court determined that appellant violated the terms of community control.
{¶30} As such, the record does not support a due process violation. Appellant
entered a guilty plea to domestic violence, an offense committed while on community
control sanctions. This admission is a violation of the terms of the community control
sanctions imposed by the trial court in the 2022 case. Appellant’s third assignment of
error is without merit.
{¶31} After an independent and thorough review of the record, we find that there
are no arguable issues requiring the appointment of new appellate counsel.
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{¶32} For the foregoing reasons, appellant’s instant appeals are wholly frivolous.
The judgment of the Portage County Court of Common Pleas is affirmed. It is further
ordered that the motion to withdraw as counsel for appellant filed by Attorney Eric R. Fink
is hereby granted.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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