State v. Reed

[Cite as State v. Reed, 2017-Ohio-7001.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27215
:
v. : Trial Court Case No. 16-CR-142
:
JERRY REED, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of July, 2017.
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MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JENNIFER MARIETTA, Atty. Reg. No. 0089642, 74 North Orange Street, Suite 105,
Xenia, Ohio, 45385
Attorney for Defendant-Appellant
JERRY REED, JR., #724-163, Allen Correctional Institution, P.O. Box 4501, Lima, Ohio
45802
Defendant-Appellant
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HALL, P.J.
{¶ 1} Jerry Reed, Jr. appeals from his conviction and sentence following a guilty
plea to one count of third-degree felony domestic violence.
{¶ 2} Reed’s appointed appellate counsel has filed a brief under Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of
any non-frivolous issues for review. Counsel has identified potential issues concerning
(1) the trial court’s compliance with Crim.R. 11 and (2) the length of Reed’s prison
sentence. Counsel has concluded, however, that neither issue possesses arguable merit.
Reed has filed a pro se brief raising one assignment of error. He contends the trial court
erred in accepting his guilty plea to domestic violence as a third-degree felony rather than
as a misdemeanor or a fourth-degree felony.
{¶ 3} The record reflects that Reed was indicted on one count of domestic violence
in February 2016. The indictment charged the offense as a third-degree felony, and it
referenced two prior domestic-violence convictions. (Doc. #3). On March 16, 2016, Reed
pled guilty to the charge. The written plea form he signed stated that he was pleading
guilty to “Domestic Violence (knowingly) (2 priors), in violation of 2929.25(A); a Felony of
the Third Degree.” (Doc. #14). The form also referenced a negotiated agreement set forth
on the record. (Id.). That agreement was addressed during a plea hearing held the same
day. It involved the promise of a 24-month prison sentence. (Tr. at 4, 6). During the
hearing, the trial court engaged in a Crim.R. 11 colloquy with Reed. After assuring itself
that he had been properly advised and that he was entering his plea knowingly,
intelligently, and voluntarily, the trial court accepted the plea. Reed waived a PSI report,
and the case proceeded to sentencing on March 23, 2016. The trial court imposed the
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promised 24-month prison term. It also imposed court costs, as it had told Reed it would
do, but declined to impose any fine. Finally, the trial court advised Reed that he would be
on post-release control for three years and explained the potential consequences of a
violation. The trial court’s March 24, 2016 termination entry accurately reflects the
sentence imposed. (Doc. #17).
{¶ 4} On appeal, Reed’s counsel first asks us to consider whether the prosecutor’s
recitation of Reed’s two prior domestic-violence convictions during the plea hearing,
combined with Reed’s oral agreement with that recitation and his signature on the plea
form, established that he understood the nature of the charge, particularly the enhanced
felony status due to the prior convictions. Counsel also asks us to consider whether
Reed’s 24-month prison sentence was proper. Upon review, we see no non-frivolous
issue with regard to either of the foregoing matters.
{¶ 5} Under Crim.R. 11(C)(2)(a), the trial court was obligated to determine that
Reed understood the nature of the charge against him and the maximum penalty
involved. The record reflects that the trial court satisfied this requirement. During the plea
hearing, the prosecutor stated that Reed knowingly had caused or attempted to cause
physical harm to a named family or household member. The prosecutor stated that the
offense was a third-degree felony based on Reed’s two prior domestic-violence
convictions. (Tr. at 7). Reed indicated his understanding that this was “the nature of the
offense” to which he was pleading guilty. (Id.). The trial court proceeded to explain the
potential penalties for a third-degree felony, with the maximum penalty being 36 months
in prison and a $10,000 fine. The trial court also told Reed that it would impose a 24-
month term and would not impose a fine, but it would impose court costs. (Id. at 7-8).
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Finally, the trial court explained Reed’s post-release control obligations and the potential
consequences of a violation. (Id. at 7-9). Again, Reed indicated his understanding of these
things. (Id.). Upon review, we agree with appellate counsel’s assessment that no non-
frivolous issue exists regarding Reed’s understanding of the nature of the charge against
him.
{¶ 6} We also see no non-frivolous issue with regard to Reed’s sentence. His 24-
month prison term is within the authorized statutory range and is not contrary to law. Reed
also pled guilty in exchange for a promise of the sentence he received. (Plea Tr. at 4, 6).
Under these circumstances, there is no basis to challenge his sentence.
{¶ 7} We turn next to Reed’s pro se brief. He argues that domestic violence under
R.C. 2919.25(A) is a misdemeanor or, with one prior violation, is a fourth-degree felony.
That being so, he contends the trial court erred in convicting and sentencing him for third-
degree felony domestic violence. We disagree. If an offender is convicted of domestic
violence and previously has been convicted of two such offenses, the offender is guilty of
third-degree felony domestic violence. R.C. 2919.25(D)(4). As set forth above, Reed’s
indictment charged him with third-degree felony domestic violence based on two prior
domestic-violence convictions, which the indictment identified by date and case number.
The prosecutor correctly stated during the plea hearing that the current offense was a
third-degree felony based on Reed’s conviction for two prior domestic-violence offenses,
and Reed acknowledged that this was the nature of his current offense. Reed’s plea form
also stated that he was pleading guilty to third-degree felony domestic violence based on
the existence of two prior offenses. Because domestic violence with two prior such
offenses is a third-degree felony, Reed’s argument is frivolous. His assignment of error is
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overruled.
{¶ 8} Finally, in compliance with our responsibility under Anders, we have
conducted an independent review of the record, including the transcript of Reed’s plea
and sentencing, and have found no non-frivolous issues for review. In particular, we note
that the trial court satisfied its responsibilities under Crim.R. 11(C)(2) during the plea
hearing. (Tr. at 5-11). The trial court fully complied with Crim.R. 11(C)(2)(c) with regard
to Reed’s constitutional rights. With regard to Crim.R. 11(C)(2)(a) and (b), which involve
non-constitutional rights, the only possible issue we have found involves the trial court’s
obligation to tell Reed that upon accepting his plea it could “proceed with judgment and
sentencing.” See Crim.R. 11(C)(2)(b). We have not found this specific advisement in the
hearing transcript prior to the acceptance of Reed’s plea. Its omission was non-prejudicial,
however, because the trial court stated, before accepting his plea, that it would postpone
sentencing for one week, which it did. (Tr. at 5). In addition, the plea form Reed signed
did advise him that upon acceptance of his plea, the trial court “may proceed with
judgment and sentence.” (Doc. #14). Because the trial court explicitly stated during the
hearing that it would postpone sentencing and the plea form contained the proper
advisement, we see no possible prejudice stemming from the trial court’s failure to tell
Reed that it could proceed immediately with sentencing. We find substantial compliance
with Crim.R. 11(C)(2)(b). Any argument that the trial court’s omission resulted in a
prejudicially-defective plea is frivolous.
{¶ 9} For the foregoing reasons, the judgment of the Montgomery County Common
Pleas Court is affirmed.
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FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
Michael Scarpelli
Jennifer Marietta
Jerry Reed Jr.
Hon. Erik Blaine