State v. Bateman

[Cite as State v. Bateman, 2011-Ohio-5808.]

IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010CA15

vs. : T.C. CASE NO. 2010CR19

JOSHUA ROSS BATEMAN : (Criminal Appeal From
Common Pleas Court)
Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 10th day of November, 2011.

. . . . . . . . .

Nick Selvaggio, Pros. Attorney, 200 North Main Street, Urbana,
OH 43078
Attorney for Plaintiff-Appellee

Jessica R. Moss, Atty. Reg. No. 0085437, 2233 Miamisburg
Centerville Road, Dayton, OH 45459
Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, Joshua Bateman, entered pleas of guilty to

illegal conveyance of drugs of abuse onto the grounds of a detention

facility, R.C. 2921.36(A)(2), a third degree felony, and

trafficking in heroin, R.C. 2925.03(A)(2), a fifth degree felony.
 2

In exchange for Defendant’s guilty pleas, the State dismissed

a possession of heroin charge and agreed to recommend community

control sanctions at sentencing. The trial court sentenced

Defendant to concurrent one year prison terms on each offense,

and fined Defendant four hundred dollars.

{¶ 2} Defendant timely appealed to this court from his

conviction and sentence. Defendant’s appellate counsel filed an

Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.

1396, 19 L.Ed.2D 493, stating that she could find no meritorious

issues for appellate review. We notified Defendant of his

appellate counsel’s representations and afforded him ample time

to file a pro se brief. None has been received. This case is

now before us for our independent review of the record. Penson

v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.

{¶ 3} Defendant’s appellate counsel has identified two possible

issues for appeal, the first of which is:

{¶ 4} “1. DID THE TRIAL COURT COMPLY WITH THE REQUIREMENTS

OF CRIMINAL RULE 11 IN ACCEPTING THE APPELLANT’S PLEA OF GUILTY

TO ONE (1) COUNT OF ILLEGAL CONVEYANCE OF DRUGS OF ABUSE ONTO GROUNDS

OF A DETENTION FACILITY, IN VIOLATION OF ORC 2921.36(A)(2)(G)(2),

A FELONY OF THE THIRD DEGREE, AND TO ONE (1) COUNT OF TRAFFICKING

IN HEROIN, IN VIOLATION OF ORC 2925.03(A)(2)(C)(6)(a), A FELONY

OF THE FIFTH DEGREE?”
 3

{¶ 5} To be constitutionally valid and comport with due process,

a guilty plea must be entered knowingly, intelligently, and

voluntarily. Boykin v. Alabama (1969),395 U.S. 238, 89 S.Ct. 1709,

23 L.Ed.2d 274. Compliance with Crim.R. 11(C)(2) in accepting

guilty or no contest pleas portrays those qualities. State v.

Fisher, Montgomery App. No, 23992, 2011-Ohio-629, at ¶16.

{¶ 6} Crim. R. 11(C)(2) provides:

{¶ 7} “In felony cases the court may refuse to accept a plea

of guilty or a plea of no contest, and shall not accept a plea

of guilty or no contest without first addressing the defendant

personally and doing all of the following:

{¶ 8} “(a) Determining that the defendant is making the plea

voluntarily, with understanding of the nature of the charges and

of the maximum penalty involved, and if applicable, that the

defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.

{¶ 9} “(b) Informing the defendant of and determining that the

defendant understands the effect of the plea of guilty or no

contest, and that the court, upon acceptance of the plea, may

proceed with judgment and sentence.

{¶ 10} “(c) Informing the defendant and determining that the

defendant understands that by the plea the defendant is waiving

the rights to jury trial, to confront witnesses against him or
 4

her, to have compulsory process for obtaining witnesses in the

defendant's favor, and to require the state to prove the defendant's

guilt beyond a reasonable doubt at a trial at which the defendant

cannot be compelled to testify against himself or herself.”

{¶ 11} In State v. Russell, Clark App. No. 10CA54,

2011-Ohio-1738, we stated:

{¶ 12} “¶7. The Supreme Court of Ohio has urged trial courts

to literally comply with Crim.R. 11. Clark at ¶ 29. The trial court

must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to

the waiver of constitutional rights. Clark at ¶ 31. The failure

to adequately inform a defendant of his constitutional rights would

invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly. State v. Griggs, 103 Ohio St.3d

85, 2004–Ohio–4415, ¶ 12.

{¶ 13} “¶8. However, because Crim.R. 11(C)(2)(a) and (b)

involve non-constitutional rights, the trial court need only

substantially comply with those requirements. State v. Nero (1990),

56 Ohio St.3d 106, 108; Greene at ¶ 9. 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. State v. Miller, Clark App. No. 08 CA 90,

2010–Ohio–4760, ¶ 8, citing State v. Veney, 120 Ohio St.3d 176,

2008–Ohio–5200, ¶ 15. A defendant who challenges his guilty plea
 5

on the ground that the trial court did not substantially comply

with Crim.R. 11(C)(2)(a) and (b) must show a prejudicial effect,

which requires the defendant to show that the plea would otherwise

not have been entered. Griggs at ¶ 12.”

{¶ 14} With respect to the requirement in Crim.R. 11(C)(2)(b)

that the trial court advise Defendant about and determine that

Defendant understands the effect of his guilty or no contest

plea(s), Defendant argues that statements that he made at the

hearing on his motion to withdraw his pleas demonstrate that he

did not understand the effect of his pleas. Defendant claims that

he mistakenly thought that his no contest plea would enable him

to get of jail on bond so he could then prove his innocence or

have his day in court. That claim is refuted by the discussion

held between the court and Defendant during the plea hearing, in

which Defendant acknowledged his understanding of the court’s

explanation that the Defendant’s plea would result in a waiver

of his right to trial and a finding of guilty to the charges against

him.

{¶ 15} The record of the plea hearing in this case demonstrates

that the trial court meticulously complied with both Crim.R.

11(C)(2) in advising Defendant about the various constitutional

rights he would be giving up by entering pleas of guilty, and with

Crim.R. 11(C)(2)(a) and (b) in advising Defendant about the
 6

non-constitutional matters including the nature of the charges,

the effect of Defendant’s guilty pleas, and the maximum penalties

involved. Defendant’s guilty pleas were entered knowingly,

intelligently, and voluntarily. This assignment of error lacks

arguable merit.

{¶ 16} “2 DID THE TRIAL COURT ERR IN SENTENCING THE APPELLANT

TO ONE (1) YEAR IMPRISONMENT BASED ON HIS CONVICTION FOR ILLEGAL

CONVEYANCE OF DRUGS OF ABUSE ONTO GROUNDS OF A DETENTION FACILITY,

IN VIOLATION OF ORC 2921.36(A)(2)(G)(2), A FELONY OF THE THIRD

DEGREE, AND TO TRAFFICKING IN HEROIN, IN VIOLATION OF ORC

2925.03(A)(2)(C)(6)(a), A FELONY OF THE FIFTH DEGREE?”

{¶ 17} In State v. Jeffrey Barker, Montgomery App. No. 22779,

2009-Ohio-3511, at ¶36-37, we wrote:

{¶ 18} “The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing

maximum, consecutive, or more than minimum sentences. State v.

Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at

paragraph 7 of the syllabus. Nevertheless, in exercising its

discretion the trial court must consider the statutory policies

that apply to every felony offense, including those set out in

R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846

11 N.E.2d 1, 2006-Ohio-855, at ¶37.
 7

{¶ 19} “When reviewing felony sentences, an appellate court

must first determine whether the sentencing court complied with

all applicable rules and statutes in imposing the sentence,

including R.C. 2929.11 and 2929.12, in order to find whether the

sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,

896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly

and convincingly contrary to law, the trial court's decision in

imposing the term of imprisonment must be reviewed under an abuse

of discretion standard. Id.”

{¶ 20} At sentencing, the trial court heard the oral statements

of counsel for both parties and Defendant’s statement. The court

also informed Defendant about post release control requirements.

In its Journal Entry of Conviction and Sentence, the court

indicated that it had considered the purposes and principles of

felony sentencing, R.C. 2929.11, and had reviewed the presentence

investigation report. The court also once again advised Defendant

about post release control requirements. The court did not,

however, specifically state that it had considered the seriousness

and recidivism factors in R.C. 2929.12.

{¶ 21} Even if there is no specific statement in the record

by the trial court that the trial court considered the purposes

and principles of felony sentencing, R.C. 2929.11, or the

seriousness and recidivism factors, R.C. 2929.12, it is presumed
 8

that the trial court gave proper consideration to those statutes.

State v. Miller, Clark App. No. 09CA28, 2010-Ohio-2138, at ¶43;

Kalish, at fn. 4. We additionally note that the one year prison

term the court imposed on each offense is within the authorized

range of available punishments for felonies of the third and fifth

degree. R.C. 2929.14(A)(3, (5). Defendant’s sentence is not

contrary to law. Kalish.

{¶ 22} With respect to the severity of the sentence, the trial

court imposed concurrent one year prison terms on each offense.

While that represents the maximum sentence for the fifth degree

felony of trafficking in heroin, it also represents the minimum

sentence for the third degree felony of illegally conveying drugs

of abuse onto the grounds of a detention facility.

{¶ 23} The charges in this case resulted from Defendant bringing

heroin into the TriCounty Jail while he was serving weekends- only

in that jail for the misdemeanor offense of receiving stolen

property. The sentencing court had allowed Defendant to serve

his sentence on the weekends so he would not lose his job. Another

inmate at that jail asked Defendant to bring in heroin in exchange

for one hundred dollars, which Defendant did. Defendant committed

the offense in this case while he was serving his sentence for

a previous offense.

{¶ 24} Defendant’s criminal history includes a prior conviction
 9

for receiving stolen property and some trespassing and underage

consumption charges. Defendant has serious substance abuse

issues. Additionally, at the time of sentencing in this case,

Defendant had felony charges pending against him in Franklin County

for misuse of a credit card. The factors in R.C. 2929.12(D)(2)

and (3) indicating that Defendant is likely to commit future crimes

apply in this case.

{¶ 25} The overriding purposes of felony sentencing are to

protect the public from future crime by the offender and to punish

the offender. R.C. 2929.11(A). The trial court has discretion

to determine the most effective way to comply with the purposes

and principles of sentencing. R.C. 2929.12(A). We see no abuse

of discretion on the part of the trial court in imposing a one

year sentence in this case. This assignment of error lacks

arguable merit.

{¶ 26} In addition to reviewing the possible issues for appeal

raised by Defendant’s appellate counsel, we have conducted an

independent review of the trial court’s proceedings and have found

no error having arguable merit. Accordingly, Defendant’s appeal

is without merit and the judgment of the trial court will be

affirmed.
 10

DONOVAN, J., And HALL, J., concur.

Copies mailed to:

Nick A. Selvaggio, Esq.
Jessica R. Moss, Esq.
Joshua Bateman
Hon. Roger B. Wilson