State v. Guerry , 2016 Ohio 962 ( 2016 )

[Cite as State v. Guerry, 2016-Ohio-962.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2015-CA-30
Plaintiff-Appellee :
: Trial Court Case No. 2014-CR-245
v. :
: (Criminal Appeal from
JORDAN GUERRY : Common Pleas Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 11th day of March, 2016.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 200 West Main Street, Eaton,
Ohio 45320
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Jordan R. Guerry appeals from his conviction and
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sentence, following a guilty plea, for Attempted Rape. His assigned counsel has filed a
brief under the authority of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967), indicating that has not found any potential assignments of error having
arguable merit. Neither have we. Accordingly, the judgment of the trial court is
Affirmed.
I. The Course of Proceedings
{¶ 2} Guerry was charged by indictment with Rape of a Child Under 13, in violation
of R.C. 2907.02(A)(1)(b). He moved to suppress statements he made to police, claiming
that they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). Following a hearing, his motion to suppress was overruled.
Subsequently, he moved to dismiss the charge on Ohio statutory speedy-trial grounds.
Following a hearing, this motion was overruled.
{¶ 3} Pursuant to a plea bargain, the indictment was amended to charge Guerry
with Attempted Rape, in violation of R.C. 2907.02(A)(1)(b) and 2923.02(A), and Guerry
pled guilty to the amended charge of Attempted Rape, a felony of the first degree.
Guerry was sentenced to ten years in prison, with five years of post-release control. He
was classified as a Tier III sex offender. From his conviction and sentence, Guerry
appeals.
{¶ 4} After Guerry’s assigned counsel filed an Anders brief, by entry dated
December 11, 2015, we afforded Guerry the opportunity to file his own, pro se brief. He
has not done so.
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II. We Find No Potential Assignments of Error Having Arguable Merit
{¶ 5} In his Anders brief, counsel notes two potential assignments of error, both
relating to the suppression issue, but after analyzing them, concludes that they have no
arguable merit. We agree, not only for the reasons counsel cites, but also for the reason
that a plea of guilty waives any error in the trial court’s failure to suppress evidence.
State v. Carson, 2d Dist. Montgomery 20285, 2004-Ohio-5809, ¶ 8. Any error in the trial
court’s ruling on the suppression motion is necessarily harmless, since none of the
evidence sought to be suppressed was admitted against Guerry; his conviction derived
from his guilty plea.
{¶ 6} In general, a guilty plea waives all claims of error preceding the plea except
claims of ineffective assistance of counsel sufficient to cause the defendant’s guilty plea
to be less than knowing and voluntary. State v. Kidd, 2d Dist. Clark No. 03CA43, 2004-
Ohio-6784, ¶ 16. We have performed our duty, under Anders v. California, of
independent review of the record, including the plea hearing transcript, and we have
found nothing to suggest that Guerry’s guilty plea was less than knowing and voluntary.
{¶ 7} We have also found no potential assignments of error having arguable merit.
Although the ten-year prison sentence imposed was only one year less than the maximum
sentence that could have been imposed, the trial court heard from the eleven-year-old
victim’s mother at the sentencing hearing:
We trusted [Guerry] to come into our home. We took him on family
vacations. I loved him just like a son. I let him watch my kids, and he took
away the best part of my son. My son can’t sleep in his room. Ninety
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percent of the time he sleeps in between me and my husband.
He doesn’t want to go to school. I have had to replace everything
that reminds him of the situation. And I just want my son to know that he
can’t be hurt anymore. Thank you.
{¶ 8} That the offender’s relationship with the victim facilitated the offense is a
statutory sentencing factor. R.C. 2929.12(B)(6). So is the fact that the victim suffered
serious psychological harm. R.C. 2929.12(B)(2). We conclude that a potential
assignment of error that the trial court abused its discretion in imposing a ten-year
sentence, or that the record clearly and convincingly fails to support the sentence,1 has
no arguable merit.
{¶ 9} After independently reviewing the entire record, we find no potential
assignments of error having arguable merit.
III. Conclusion
{¶ 10} No potential assignments of error with arguable merit having been found,
the judgment of the trial court is Affirmed.
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HALL and WELBAUM, JJ., concur.
Copies mailed to:
Megan M. Farley
Brian A. Muenchenbach
Hon. Douglas M. Rastatter
1 See State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.).