State v. Mayle ( 2024 )

[Cite as State v. Mayle, 2024-Ohio-2371.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
ISAIAH MAYLE : Case No. CT2023-0089
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2023-0493
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 20, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH APRIL F. CAMPBELL
27 N St. #201 545 Metro Place South
Zanesville, OH 43701 Suite 100
Dublin, OH 43017
Muskingum County, Case No. CT2023-0089 2
King, J.
{¶ 1} Defendant-Appellant Isaiah Mayle appeals the October 20, 2023 judgment
of conviction and sentence of the Muskingum County Court of Common Pleas. Plaintiff-
Appellee is the state of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 2, 2023, the Muskingum County Grand Jury returned an
indictment charging Mayle with one count of domestic violence pursuant to R.C.
2919.25(A) and (D)(4). Because Mayle had numerous prior domestic violence
convictions, the charge was a felony of the third degree.
{¶ 3} On September 6, 2023, Mayle pled guilty to the charge. The trial court
ordered a presentence investigation and set the matter over for sentencing.
{¶ 4} Mayle appeared for sentencing on October 18, 2023. The presentence
investigation revealed eleven prior domestic violence charges among other charges.
Transcript of Sentencing 3-4. Based on Mayle's prior record, the trial court imposed the
maximum sentence of 36 months. Id. 7.
{¶ 5} Mayle filed an appeal and was appointed counsel. Thereafter, Mayle's
attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). In Anders, the
United States Supreme Court held that if, after a conscientious examination of the record,
the defendant's counsel concludes that the case is wholly frivolous, then counsel 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 that could arguably
support the defendant's appeal. Id. Counsel also must: (1) furnish the defendant with a
copy of the brief and request to withdraw; and (2) allow the defendant sufficient time to
Muskingum County, Case No. CT2023-0089 3
raise any matters that the defendant 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
that the appeal is 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.
{¶ 6} By judgment entry filed March 7, 2024, this court noted counsel had filed an
Anders brief and indicated to the court that she had served Mayle with the brief.
Accordingly, this court notified Mayle via certified U.S. Mail that he "may file a pro se brief
in support of the appeal within 60 days from the date of this entry." Mayle did not do so.
{¶ 7} The matter is now before this court for consideration of counsel's Anders
brief. Counsel urges this court to review the following:
I
{¶ 8} "THE TRIAL COURT ERRED IN ACCEPTING MAYLE'S GUILTY PLEAS
UNDER CRIM.R. 11 AND ERRED IN SENTENCING MAYLE."
{¶ 9} In the proposed assignment of error, counsel suggests Mayle's plea was
not knowingly, intelligently and voluntarily made. Counsel further suggests Mayle's
sentence was contrary to law pursuant to R.C. 2953.08(G)(2). We disagree.
Plea
{¶ 10} 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 (1990); State v. Groves,
2019-Ohio-5025, at ¶7 (5th Dist.).
Muskingum County, Case No. CT2023-0089 4
{¶ 11} Criminal Rule 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), and strictly comply with the constitutional notifications. State
v. Ballard, 66 Ohio St.2d 473, 475 (1981), citing State v. Stewart, 51 Ohio St.2d 86 (1977);
State v. Veney, 2008-Ohio-5200 at ¶ 31.
{¶ 12} As to the constitutional notifications, before accepting a plea, a trial court
must inform a defendant that by entering his plea, he waives important constitutional
rights, specifically: (1) the right to a jury trial; (2) the right to confront witnesses against
him; (3) compulsory process for obtaining witnesses in his favor; (4) the right to require
the state to prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that
the defendant cannot be compelled to testify against himself. Veney, ¶ 19. If the trial court
fails to strictly comply with these requirements, the defendant's plea is invalid. Id. at ¶ 31.
{¶ 13} As to the non-constitutional rights, a trial court must notify a defendant of:
(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. For these 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 (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.
Muskingum County, Case No. CT2023-0089 5
{¶ 14} We have reviewed the transcript of Mayle's plea and find it reflects the trial
court's strict compliance with each constitutional notification and its substantial
compliance with each non-constitutional notification. Transcript of Plea, September 6,
2023 (T.) 4-9.
Sentence
{¶ 15} As for Mayle's sentence, this court reviews felony sentences using the
standard of review set forth in R.C. 2953.08. State v. Marcum, 2016-Ohio-1002, at ¶ 22;
State v. Howell, 2015-Ohio-4049, at ¶ 31 (5th Dist.). 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 for 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 the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
Muskingum County, Case No. CT2023-0089 6
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 16} "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 (1954), paragraph three of the syllabus.
{¶ 17} "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, 2021-Ohio-2646, at ¶ 90 (5th
Dist.) reversed on other grounds, State v. Morris, 2022-Ohio-4609, quoting State v. Dinka,
2019-Ohio-4209 at ¶ 36 (12th Dist.).
{¶ 18} After a proper Crim.R. 11 colloquy, Mayle pled guilty to a felony of the third
degree. Transcript of Plea at 9. Under R.C. 2929.14(3)(b), felonies of the third degree are
punishable by "a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six
months." The trial court sentenced Mayle to thirty-six months. The sentence is within the
statutory range for a third-degree felony. The trial court noted its consideration of the
appropriate sentencing factors in its sentencing judgment entry.
{¶ 19} Upon review of the record, we find the trial court properly informed Mayle of
the consequences of his plea, properly considered the factors set forth in R.C. 2929.11
Muskingum County, Case No. CT2023-0089 7
and R.C. 2929.12, imposed a sentence within the permissible statutory range, and
properly imposed post release control. Mayle's sentence is therefore not clearly and
convincingly contrary to law.
Conclusion
{¶ 20} "Anders equated a frivolous appeal with one that presents issues lacking in
arguable merit. . . . 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,
2002-Ohio-6788 at ¶ 4 (2d Dist).
{¶ 21} After independently reviewing the record, we agree with appellate counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal.
{¶ 22} We 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. CT2023-0089 8
{¶ 23} The judgment of the Court of Common Pleas of Muskingum County, Ohio,
is hereby affirmed.
By King, J.,
Gwin, J. and
Delaney, J. concur.