State v. Ross

[Cite as State v. Ross, 2023-Ohio-1800.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. CT2022-0053
BRIAN A. ROSS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2022-0123
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 30, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD WELCH JAMES S. SWEENEY
Muskingum County Prosecuting Attorney 285 South Liberty Street
327 North Fifth Street, Box 189 Powell, OH 43065
Zanesville, OH 43702
Muskingum County, Case No. CT2022-0053 2
Gwin, P.J.
{¶1} Appellant Brian Ross appeals his conviction and sentence from the
Muskingum County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On March 13, 2022, an officer attempted to initiate a traffic stop for a vehicle
going 50 miles per hour in a 25 mile per hour zone. The owner of the vehicle had an
active warrant for her arrest, but a male was driving the vehicle. The driver was later
identified as appellant. The vehicle did not stop, and a pursuit ensued, with speeds
reaching up to approximately 120 miles per hour on I-70 eastbound. After the Ohio State
Highway Patrol became involved, the vehicle exited at the New Concord exit, and sped
through residential streets. Ultimately, the pursuit ended at a residential street in
Cambridge, Ohio. Appellant got out of the vehicle and fled on foot. After a short foot
chase, appellant was apprehended by officers. The passenger in the vehicle indicated
appellant was aware the officers were trying to get appellant to stop, but appellant refused
to do so.
{¶3} On March 23, 2022, appellant was indicted on the following charges: (1)
failure to comply with the order or signal of a police officer, a violation of R.C. 2921.331(B),
a felony of the third degree, and (2) abduction of passenger A.W., a violation of R.C.
2905.02(A)(2), a felony of the third degree.
{¶4} Appellant, his trial counsel, and counsel for the State of Ohio each signed
a guilty plea form on May 25, 2022. Simultaneously, the State of Ohio filed a motion to
dismiss Count Two (abduction) as part of a negotiated plea, which the trial court granted.
The plea form specifically states the maximum prison term for the failure to comply
Muskingum County, Case No. CT2022-0053 3
charge, and also specifically states the maximum penalty for the failure to comply charge
includes a Class II license suspension, with the suspension being from three years to life.
{¶5} Additionally, the form detailed the plea agreement as follows: upon a plea
of guilty to Count One, as contained in the indictment, the parties agree to a joint
recommendation that Defendant be sentenced to three years in prison; the State agrees
to dismiss Count Two of the indictment; the joint recommendation is conditioned upon
Defendant’s compliance with all bond conditions and Defendant’s compliance with all
laws pending sentencing on this matter; and Defendant acknowledges that he
understands any sentencing recommendation does not have to be followed by the Court.
{¶6} The trial court held a plea hearing on May 25, 2022. The trial court informed
appellant of his constitutional rights. Appellant confirmed he was voluntarily waiving each
constitutional right. The trial court informed appellant of the maximum penalties, including
a prison term of thirty-six months, a maximum $10,000 fine, and a mandatory Class II
driver’s license suspension of three years to life. Appellant stated he understood the
charge and the possible penalties. The trial court then reviewed the plea agreement and
joint sentencing recommendation. Appellant confirmed he understood the plea
agreement, the joint sentencing recommendation, and stated he had not been promised
anything in exchange for his guilty plea. The trial court accepted appellant’s guilty plea.
{¶7} Appellant requested the trial court waive a pre-sentence investigation, and
the parties jointly stipulated that appellant should receive seventy-three days in jail time
credit. The trial court sentenced appellant to thirty-six months in prison with a license
suspension of ten years.
Muskingum County, Case No. CT2022-0053 4
{¶8} The trial court issued a judgment entry on June 2, 2022. The entry provides
as follows: defendant had his constitutional rights fully explained to him pursuant to
Criminal Rule 11; the defendant made a knowing, intelligent, and voluntary waiver of
those rights; the defendant understands the nature of the charges, the effect of a guilty
plea, and the maximum penalty that can be imposed for each offense to which he has
entered a plea of guilty; the court accepted the plea of guilty; the court found the defendant
guilty of failure to comply (risk of harm), a felony of the third degree, in violation of R.C.
2921.331(B); the defendant waived a pre-sentence investigation; and the court
proceeded to sentencing.
{¶9} The trial court stated it considered the record, all statements, the plea
recommendation, the principles and purposes of sentencing under R.C. 2929.11 and the
factors contained in R.C. 2929.12 in its sentence, and imposed the sentence of thirty-six
months in prison with a ten-year license suspension.
{¶10} Appellate counsel for appellant has filed a motion to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), rehearing den., 388 U.S. 924(1967), indicating that the within appeal was wholly frivolous and setting forth one
proposed assignment of error:
{¶11} “I. THE IMPOSITION OF THE TEN-YEAR LICENSE SUSPENSION WAS
CONTRARY TO LAW BECAUSE IT WAS NOT PART OF THE RECOMMENDED
SENTENCE.”
{¶12} This Court issued a judgment entry notifying appellant that his counsel filed
an Anders brief, and allowing appellant file a pro se brief within sixty days of the entry.
Muskingum County, Case No. CT2022-0053 5
Appellant has not filed a pro se brief and this Court has not received a responsive brief
from appellee.
Anders Law
{¶13} In Anders, the United States Supreme Court held, if after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
he should so advise the court and request permission to withdraw. Id. Counsel may
accompany his or her request with a brief identifying anything in the record that could
arguably support the client’s appeal. Id. Counsel also must: (1) furnish the client with a
copy of the brief and request to withdraw; and (2) allow the client sufficient time to raise
any matters that the client chooses. Id.{¶14} 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 wholly 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.I.
{¶15} In his proposed assignment of error, appellant contends his sentence was
contrary to law because the license suspension was not part of the jointly recommended
sentence.
{¶16} This Court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.
Subsection (G)(2) sets forth this Court’s standard of review as follows:
Muskingum County, Case No. CT2022-0053 6
(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 (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.
{¶17} “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, 120 N.E.2d 118 (1954).
{¶18} “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, 5th Dist. Ashland No. 20-COA-015, 2021-
Muskingum County, Case No. CT2022-0053 7
Ohio-2646, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022, and CA2019-
03-026, 2019-Ohio-4209.
{¶19} Here, appellant pled guilty to a third-degree felony. Appellant does not argue
his sentence is not within the permissible statutory range. Rather, appellant argues the
trial court did not follow the jointly recommended sentence because the ten-year license
suspension was not included in the jointly recommended sentence.
{¶20} However, a “recommended” sentence is just as it sounds: “a nonbinding
recommendation to the court, which the court is not required to accept or comment on.”
State v. Link, 5th Dist. Licking No. 21CA0059, 2022-Ohio-2067.” Trial courts may reject
plea agreements and they are not bound by a jointly-recommended sentence. State v.
Penrod, 5th Dist. Licking No. 16-CA-83, 2017-Ohio-7732 citing State ex rel. Duran v.
Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430. The decision to accept or
reject a plea bargain rests solely within the discretion of the trial court. State v. Jefferson,
5th Dist. Delaware No. 11 CAA 04 0033, 2012-Ohio-148, citing State v. Asberry, 173 Ohio
App.3d 443, 2007-Ohio-5436, 878 N.E.2d 1082.
{¶21} In this case, the plea agreement specifically states, “Defendant
acknowledges that he understands any sentencing recommendation does not have to be
followed by the Court.” The trial court also correctly informed appellant prior to sentencing
that the maximum possible penalty included a license suspension of three years to life.
The trial court imposed a sentence (prison of thirty-six months and a ten-year license
suspension) which is within the statutory sentencing guidelines. This Court has
consistently held that a trial court does not commit error by imposing a sentence greater
than a sentence recommended by the state when the trial court forewarns the defendant
Muskingum County, Case No. CT2022-0053 8
of the range of penalties which may be imposed upon conviction. State v. Parks, 5th Dist.
Licking No. 16-CA-4, 2016-Ohio-5745.
{¶22} Further, the trial court stated in its sentencing entry that it “considered the
record, all statements, any victim impact statement, the plea recommendation in this
matter, as well as the principles and purposes of sentencing under Ohio Revised Code
2929.11 and its balance of seriousness and recidivism factors under Ohio Revised Code
2929.12.” Appellant’s sentence was within the statutory range and he does not point to
anything in the record showing the court ignored the sentencing factors.
{¶23} After independently reviewing the record, we agree with counsel’s
conclusion that no arguably meritorious claims exist upon which to base an appeal. Thus,
we find the appeal to be wholly frivolous under Anders, grant counsel’s request to
withdraw, and affirm the judgment of the Muskingum County Court of Common Pleas.