State v. Cologie , 2017 Ohio 9217 ( 2017 )

[Cite as State v. Cologie, 2017-Ohio-9217.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 17 BE 0009
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
JOSHUA ALAN COLOGIE, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court Of
Common Pleas of Belmont County, Ohio
Case No. 16 CR 299
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: No Brief Filed
For Defendant-Appellant: Atty. John D. Falgiani, Jr.
P.O. Box 8533
Warren, OH 44484
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 22, 2017
[Cite as State v. Cologie, 2017-Ohio-9217.]
ROBB, P.J.
{¶1} Defendant–Appellant Joshua Cologie appeals from his convictions
entered in Belmont County Common Pleas Court for two counts of gross sexual
imposition. Appellant's counsel filed an Anders brief and requested leave to withdraw.
A review of the case file and brief reveals there is no merit with this appeal.
Accordingly, appointed counsel's motion to withdraw is granted, and the convictions
are affirmed.
Statement of the Case
{¶2} Appellant was indicted on December 7, 2016 for three counts of gross
sexual imposition in violation of R.C. 2907.05(A)(4), third-degree felonies. The
indictment alleged over a 15 month period Appellant had sexual contact with the
victim who was less than thirteen years of age.
{¶3} A plea agreement was reached by the state and Appellant. The state
agreed to dismiss count three of the indictment and Appellant agreed to plead guilty
to counts one and two of the indictment. 1/20/17 J.E. After the plea colloquy, the
trial court accepted the guilty plea and dismissed count three of the indictment.
1/20/17 J.E.; 1/19/17 Plea Tr. 12.
{¶4} Sentencing occurred on February 6, 2017. Appellant received an
aggregate sentence of 120 months; he received 60 months for each gross sexual
imposition conviction and those sentences were ordered to be served consecutively.
2/7/17 J.E. In addition to the prison term, Appellant was sentenced to 5 years of post-
release control and he was advised of the consequences for violating post-release
control. 2/7/17 J.E. Appellant was designated a Tier II sex offender and informed of
his reporting requirements. 2/7/17 J.E.
{¶5} Appellant timely appealed his convictions. After reviewing the record,
appointed counsel filed an Anders brief and moved to withdraw as counsel.
ANALYSIS
{¶6} When appellate counsel seeks to withdraw and discloses there are no
meritorious arguments for appeal, the filing is known as an Anders brief or a no-merit
brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In this district, it is
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also called a Toney brief. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th
Dist.1970).
{¶7} In Toney, this court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
3. Where court-appointed counsel, with long and extensive experience
in criminal practice, concludes that the indigent's appeal is frivolous and
that there is no assignment of error which could be arguably supported
on appeal, he should so advise the appointing court by brief and
request that he be permitted to withdraw as counsel of record.
4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
***
7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as
counsel of record should be allowed, and the judgment of the trial court
should be affirmed.
Id. at syllabus.
{¶8} The Anders brief was filed by appellate counsel on June 2, 2017. In
that brief, appellate counsel identified three potential issues for appeal and
determined there were no reasonable, arguable issues. Appellant was notified of
appellate counsel’s Anders brief and was granted 30 days to file his own written brief.
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7/21/17 J.E. Appellant has not filed a brief and the time for filing a brief has passed.
Accordingly, our analysis will proceed with an independent examination of the record
to determine if the appeal is frivolous. Our review will encompass the following
issues: 1) whether the plea was entered knowingly, intelligently, and voluntarily; 2)
whether the sentence complies with the law; and 3) whether Appellant received
ineffective assistance of counsel. These are the three issues counsel identified as
potentially appealable.
Plea
{¶9} Crim.R. 11(C) provides that a trial court must make certain advisements
prior to accepting a defendant's guilty plea to ensure the plea is entered into
knowingly, intelligently, and voluntarily. These advisements are divided into
constitutional rights and nonconstitutional rights.
{¶10} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses
against him; 3) the compulsory process for obtaining witnesses in his favor; 4) the
state must prove the defendant's guilt beyond a reasonable doubt at trial; and 5) the
defendant cannot be compelled to testify against himself. Crim.R. 11(C)(2)(c); State
v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E.2d 621, ¶ 19–21. The trial
court must strictly comply with these requirements; if it fails to strictly comply, then
the defendant's plea is invalid. Veney at ¶ 31; State v. Ballard, 66 Ohio St.2d 473,
477, 423 N.E.2d 115 (1981).
{¶11} The nonconstitutional rights the defendant must be informed of are: 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)
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; State v.
Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 423 N.E.2d 1224, ¶ 19–26, (post-
release control is a nonconstitutional advisement). For the nonconstitutional rights,
the trial court must substantially comply with Crim.R. 11's mandates. State v. Nero,
56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that
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under the totality of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving.” Veney at ¶ 15, quoting Nero at
108. Furthermore, a defendant who challenges his guilty plea on the basis that the
advisement for the nonconstitutional rights did not substantially comply with Crim.R.
11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have
been otherwise entered. Veney at ¶ 15, citing Nero at 108.
{¶12} The record indicates the trial court's advisement on the constitutional
rights strictly complied with Crim.R. 11(C)(2)(c). Appellant was informed and
indicated he understood by pleading guilty he was waiving his right to a jury trial, his
right to confront witnesses against him, his right to subpoena witnesses in his favor,
and his right to have the state prove beyond a reasonable doubt every element of the
indicted offenses. 1/19/17 Plea Tr. 8-9. He was also informed and stated he
understood if he went to trial he could not be compelled to testify against himself.
1/19/17 Plea Tr. 9.
{¶13} As to the nonconstitutional rights, the trial court’s advisement
substantially complied with Crim.R. 11. Appellant was advised of the charges, the
maximum sentence, and maximum fine. 1/19/17 Plea Tr. 2. He was informed the
maximum penalty for each gross sexual imposition conviction was 60 months and a
$10,000 fine. 1/19/17 Plea Tr. 2. He was advised, if convicted, he would be
classified as a Tier II sex offender. 1/19/17 Plea Tr. 2. The trial court also explained
to Appellant that following his release from prison he would be subject to 5 years of
post-release control, and he was advised of the consequences for violating post-
release control. 1/19/17 Tr. 7. Appellant was also advised the crimes did not require
a mandatory prison term, and he was eligible for community control. 1/19/17 Plea Tr.
6. The trial court also explained it could proceed immediately to sentencing. 1/19/17
Tr. 6.
{¶14} Consequently, for the above reasons, there are no appealable issues
concerning the plea. The record confirms that the plea was intelligently, voluntarily,
and knowingly entered.
Sentencing
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{¶15} The trial court imposed 60 months for each gross sexual imposition
conviction and ordered the sentences to be served consecutively. Appellant was
sentenced to 5 years of post-release control and he was classified as a Tier II sex
offender.
{¶16} Review of felony sentences is governed by R.C. 2953.08(G)(2). State v
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C.
2953.08(G)(2) an “appellate court may vacate or modify a felony sentence on appeal
only if it determines by clear and convincing evidence that the record does not
support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law.” Id. at ¶ 1, 23. 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.” Marcum at ¶ 22,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
{¶17} A sentence is clearly and convincingly contrary to law if the sentence
falls outside the statutory range for the particular degree of offense, the trial court
failed to consider the purposes and principles of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors in R.C. 2929.12, or if consecutive
sentences are ordered and the trial court did not make the necessary consecutive
sentence finding. State v. Fenske, 7th Dist. No. 16 JE 006, 2017-Ohio-7761, ¶ 26,
(Indicating a sentence is contrary to law if the sentence falls outside statutory range
and/or the trial court failed to consider R.C. 2929.11 and R.C. 2929.12); State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-2177, 16 N.E.3d 659, ¶ 30 (Failing to make
consecutive sentence findings in the judgment entry does not render the sentence
contrary to law, but failing to make those findings at the sentencing hearing does
render the sentence contrary to law. A nunc pro tunc order can correct the failure to
make findings in the judgment entry as long as the findings were made at the
sentencing hearing.); Marcum at ¶ 23 (“[I]t is fully consistent for appellate courts to
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review those sentences that are imposed solely after consideration of the factors in
R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the
sentencing court. That is, an appellate court may vacate or modify any sentence that
is not clearly and convincingly contrary to law only if the appellate court finds by clear
and convincing evidence that the record does not support the sentence.”).
{¶18} A violation of R.C. 2907.05 that is a third-degree felony has a
sentencing range of 12, 18, 24, 20, 26, 42, 48, 54 or 60 months. R.C.
2929.14(A)(3)(a). Thus, the 60 month sentence for each third-degree felony gross
sexual imposition conviction was within the statutory range.
{¶19} The trial court’s imposition of five years of post-release control also
complied with the statutory mandates. R.C. 2929.19(B)(2)(c) requires a trial court to
give notice of post-release control to a defendant at sentencing if a prison term is
imposed for a first-degree felony, a second-degree felony, or for a felony sex offense.
Gross sexual imposition is a “felony sex offense” and carries a five-year period of
post-release control. R.C. 2967.28(A)(3), (B)(1). The trial court is required to notify
the defendant of the consequences of violating post-release control. R.C.
2929.19(B)(2)(e). The trial court did this at both the sentencing hearing and in the
judgment entry. 2/6/17 Sentencing Tr. 11; 2/7/17 J.E.
{¶20} Appellant’s classification as a Tier II sex offender also complied with the
statutes. R.C. 2950.01(F)(1)(c) indicates this is the appropriate classification for a
violation of R.C. 2907.05(A)(4), gross sexual imposition. The trial court in the
sentencing judgment entry and at the sentencing hearing informed Appellant of his
reporting requirements. 2/7/17 J.E.; 2/6/17 Sentencing Tr. 11-12. An explanation of
duties to register was also completed by the court and Appellant. 2/6/17 Explanation
of Duties J.E.
{¶21} In rendering the 60 month sentence for each conviction, the trial court
considered the purposes and principles in R.C. 2929.11 and the serious and
recidivism factors in R.C. 2929.12. In the judgment entry, the trial court stated:
The Court, in sentencing, may, in its discretion to determine the most
effective way to comply with the principles and purposes of sentencing
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set forth in Revised Code §2929.12(B), (C), (D), and (E) and any other
factors relevant to achieving those purposes and principles.
In light of that guidance, the Court finds that the factors contained in
Ohio Revised Code §2929.12(B) and (D) and in §2929.13(B)(2) which
indicate more serious conduct and more likelihood of recidivism include
the following:
1. As an adult, Defendant has convictions for OVI (3), No
Operator’s License (M-1: 1), Failure to Control (4) and safety belt
nonuse;
2. Defendant’s victim suffered physical and psychological harm
which was exacerbated by her young age;
3. Defendant held a position of trust as the caregiver of the child;
4. Defendant’s relationship with the victim facilitated the offense;
5. Defendant was a custodian and the victim was a household
member;
6. Defendant shows a pattern of drug and alcohol abuse and
blames this misconduct upon that abuse;
7. Defendant shows little genuine remorse and blames his nine (9)
year old victim for initiating the sexual contact and excuses the
sexually abusive conduct by claiming the child enjoyed what he
was doing; and
8. Defendant already received consideration when Count III was
dismissed.
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In accordance with Ohio Revised Code §2929.12(C) and (E), which
suggest that his conduct is less serious and that recidivism is less likely,
the Court can find no factors in Defendant’s favor.
The Court further finds in accordance with Ohio Revised Code §
2929.11(A), that the overriding purposes of felony sentencing are to
protect the public from future crime by the offender and others to punish
the offender, using the minimum sanctions that the Court determines
accomplishes these purposes, without imposing an unnecessary
burden on State and local government resources. In this case, the
message must be clear that adults may not engage in sexual behavior
with children.
2/7/17 J.E.
Very similar statements were made at the sentencing hearing:
The Court in sentencing has discretion to determine the most effective
way to comply with the principles and purposes of sentencing,
considering, however, the seriousness and recidivism factors that are
relevant to achieving those purposes and principles.
The factors that indicate more serious conduct, more likelihood of
recidivism, the Court finds are as follows: As an adult, you do have
convictions for OVI, three of those; no operator’s license; failure to
control, there’s four of those; and there’s a seatbelt offense. No
felonies, as Mr. Ryncarz [defense counsel] has pointed out. The victim
suffered physical and psychological harm, which is exacerbated by her
young age. You held a possession [sic] of trust as the caregiver of that
child. Your relationship with the child facilitated the offense. You were
a custodian. The victim was a household member. There’s a pattern of
drug and alcohol abuse. You blame that for your misconduct. Again,
you have done that today.
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Other than today, I haven’t seen a showing of any real genuine
remorse, and the two factors that primarily stand out to me, Mr. Cologie,
are the following: You accused the child of initiating contact and you
said it was okay in your mind, because she enjoyed it.
You’ve already received consideration when Count III was dismissed.
The factors that indicate less serious conduct, less likelihood of
recidivism, there simply aren’t any. Again, the purposes of felony
sentencing are to protect the public from future crime by you and
others, and to punish you using the minimum sanctions that accomplish
those purposes without imposing an unnecessary burden on state or
local government resources. In this case, the message has to be clear
that adults may not engage in sexual behavior with children.
2/6/17 Sentencing Tr. 8-9.
{¶22} The record in this case, including the PSI, indicates the trial court’s
statements regarding Appellant’s record, remorse, and relationship with the child are
accurate. Accordingly, the record confirms the trial court did consider the factors and
the principles and purposes of sentencing, and the sentence imposed was not clearly
and convincingly contrary to law.
{¶23} Our review moves to the trial court’s imposition of consecutive
sentences. When a trial court imposes consecutive sentences it must make the
required R.C. 2929.14(C)(4) findings at the sentencing hearing, and it must
incorporate those findings into the sentencing entry. Bonnell, 2014–Ohio–3177 at
¶ 29. We have previously explained R.C. 2929.14(C)(4) requires a sentencing court
to find: “(1) consecutive sentences are necessary to protect the public from future
crime or to punish the offender, (2) that consecutive sentences are not
disproportionate to the seriousness of the defendant's conduct and to the danger he
poses to the public, and (3) one of the findings described in subsections (a), (b) or
(c).” State v. Jackson, 7th Dist. No. 15 MA 93, 2016-Ohio-1063, ¶ 13. Subsections
(a), (b), and (c) provide:
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(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.
R.C. 2929.14(C)(4)(a)-(c).
At the sentencing hearing, the trial court stated:
The Court is also going to find in this matter that prison terms are
necessary and that they must be consecutive so as to protect the public
and to punish you. Consecutive terms are not disproportionate with
your conduct. The harm that you caused is so great or unusual that a
single term does not adequately reflect the seriousness of your
conduct. Consecutive terms are necessary to protect the public from
you. You engaged in sexually molesting this child over a period of 15
months. That’s the hell that she lived.
2/6/17 Sentencing Tr. 9-10.
{¶24} These statements constitute a R.C. 2929.14(C)(4) finding. Admittedly,
the trial court did not use the exact words of the statute. For instance, for the R.C.
2929.14(C)(4)(b) finding the trial court did not state the “multiple offenses were
committed as part of one or more courses of conduct.” However, the course of
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conduct finding was made when the trial court indicated the offenses occurred over a
15 month period. Similarly, when the trial court stated, “Consecutive prison terms are
necessary to protect the public from you,” the trial court was finding the second part
of R.C. 2929.14(C)(4), that Appellant posed a danger to the public. The Supreme
Court has explained, “A word-for-word recitation of the language of the statute is not
required, and 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.” Bonnell, 2014–Ohio–
3177 at ¶ 29. Consequently, using ‘magic’ or ‘talismanic’ words is not needed to
impose consecutive sentences. State v. Jackson, 7th Dist. No. 14 MA 99, 2015-
Ohio-1365, ¶ 10, citing State v. Bellard, 7th Dist. No. 12 MA 97, 2013–Ohio–2956, ¶
17. Given the statements made during the hearing, it is discernable that the trial
court engaged in the correct analysis. Therefore, the trial court’s statements at the
sentencing hearing complied with the mandates of Bonnell and R.C. 2929.14(C)(4).
{¶25} The trial court was also required to state the findings in the sentencing
judgment entry. In the entry the court stated:
The Court finds that consecutive prison terms are necessary in this
action so as to protect the public and to punish this Defendant. The
Court further finds that consecutive terms are not disproportionate with
Defendant’s conduct. The harm in Defendant’s conduct was so great or
unusual that a single term does not adequately reflect the seriousness
of his conduct, and Defendant’s criminal history shows that consecutive
terms are needed to protect the public from him. Defendant engaged in
this sexual molestation over a period of fifteen (15) months.
2/7/17 J.E.
{¶26} This statement is very similar to the statements made at the sentencing
hearing. Thus, for the same reasons espoused above, the statement demonstrates
compliance with R.C. 2929.14(C)(4).
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{¶27} As to sentencing, there are no appealable issues regarding the
sentence being within the statutory range, the imposition of consecutive sentences,
and consideration of R.C. 2929.11 and R.C. 2929.12. The sentence, including the
post-release control sentence and the sex offender classification, was within the
applicable statutory range, R.C. 2929.14(C)(4) was followed for the imposition of
consecutive sentences, and the record indicates the trial court considered R.C.
2929.11 and R.C. 2929.12 when it imposed the sentence.
Ineffective Assistance of Counsel
{¶28} We review a claim of ineffective assistance of counsel under a two-part
test, which requires the defendant to demonstrate: (1) trial counsel's performance fell
below an objective standard of reasonable representation; and (2) prejudice arose
from the deficient performance. State v. Bradley, 42 Ohio St.3d 136, 141–143, 538
N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Both prongs must be established; if the performance was not
deficient, then there is no need to review for prejudice and vice versa. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶29} A voluntary guilty plea waives an ineffective assistance of counsel claim
except to the extent that counsel's performance causes the waiver of Defendant's
trial rights and the entry of his plea to be less than knowing and voluntary. State v.
Fatula, 7th Dist. No. 07 BE 24, 2008-Ohio-1544, ¶ 9. Where a defendant has
entered a guilty plea, the defendant can prevail on an ineffective assistance of
counsel claim only by demonstrating that there is a reasonable probability that, but
for counsel's deficient performance, he would not have pled guilty to the offenses at
issue and would have insisted on going to trial. State v. Wilson, 7th Dist. No. 15 BE
0074, 2016-Ohio-8548, ¶ 16, citing State v. Williams, 8th Dist. No. 100459, 2014–
Ohio–3415, ¶ 11.
{¶30} The record in this case does not support a claim there is a reasonable
probability Appellant would not have pled guilty absent counsel’s deficient
performance. In fact, nothing in the record even suggests deficient performance.
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Appellant was charged with three counts of gross sexual imposition and he received
a plea offer where the state agreed to dismiss the third count.
{¶31} Furthermore, as discussed above, the plea colloquy complied with
Crim.R. 11. During the plea colloquy, the trial court asked if anyone promised him
anything, threatened him in any way, coerced him or done anything to cause him to
enter the plea against his will. 1/19/17 Plea Tr. 4. He responded “no.” 1/19/17 Plea
Tr. 4. He was also asked if he was satisfied with the advice and competence of his
counsel. 1/19/17 Plea Tr. 5-6. He responded he was satisfied. 1/19/17 Plea Tr. 6.
{¶32} Given all the above, including the admitted facts and the plea
agreement, there is nothing to suggest counsel’s performance was deficient or that
Appellant was prejudiced in any way. There are no appealable issues regarding a
claim for ineffective assistance of counsel.
Conclusion
{¶33} For all the above stated reasons, counsel’s motion to withdraw is
granted, and the convictions are affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.