[Cite as State v. Beerman, 2016-Ohio-772.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 15 BE 30
VS. )
) OPINION
JASON MICHAEL BEERMAN )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Belmont County, Ohio
Case No. 15 CR 2
JUDGMENT: Affirmed. Motion to Withdraw Sustained.
APPEARANCES:
For Plaintiff-Appellee Attorney Daniel P. Fry
Belmont County Prosecutor
Attorney J. Flanigan
Assistant Prosecutor
Courthouse Annex 1
147-A West Main Street
St. Clairsville, Ohio 43950
For Defendant-Appellant Attorney John Jurco
P.O. Box 783
St. Clairsville, Ohio 43950
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: February 29, 2016
[Cite as State v. Beerman, 2016-Ohio-772.]
DeGENARO, J.
{¶1} Defendant-Appellant, Jason Michael Beerman, appeals the April 15,
2015 judgment of the Belmont County Court of Common Pleas convicting him of one
count of conspiracy and sentencing him accordingly. Appointed appellate counsel for
Beerman has filed a no-merit brief and a request to withdraw as counsel pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and State v.
Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970). For the following reasons we
sustain counsel's motion to withdraw and affirm the trial court's judgment.
{¶2} On January 7, 2015, Beerman was indicted on two counts of
possession of a deadly weapon while under detention, R.C. 2923.131(B) and
(C)(2)(c)(i), third-degree felonies. Beerman was accused of possessing a homemade
shank while an inmate in the Belmont Correctional Institution where he was serving a
prison sentence for second-degree felonies committed in Hamilton County.
{¶3} Beerman subsequently entered into a Crim.R. 11 plea agreement and
agreed to plead guilty to one amended count of conspiracy to possess a deadly
weapon while under detention pursuant to R.C. 2923.01(A)(1), a fourth-degree felony
under R.C. 2923.01(J)(2), in exchange for dismissal of the second count and for a
jointly agreed sentence recommendation of 9 months to be served consecutively to
the prison sentence Beerman was already serving.
{¶4} During an April 13, 2015 hearing, the trial court sustained the State's
motion to amend count one to conspiracy and to dismiss the second count. The trial
court advised Beerman of all the constitutional and nonconstitutional rights he was
waiving by entering the plea, and then accepted his guilty plea, finding Beerman's
plea was knowing, voluntary and intelligent, and proceeded immediately to
sentencing. The trial court's April 15, 2015 judgment entry imposed the agreed
sentence of 9 months in prison to be served consecutively to the prison sentence
Beerman was serving for the Hamilton County offenses.
{¶5} An attorney appointed to represent an indigent criminal defendant may
seek permission to withdraw if the attorney can show that there is no merit to the
appeal. See generally Anders, 386 U.S. 738. To support such a request, appellate
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counsel is required to undertake a conscientious examination of the case and
accompany his or her request for withdrawal with a brief referring to anything in the
record that might arguably support an appeal. Toney, 23 Ohio App.2d at 207.
Counsel's motion must then be transmitted to the defendant in order to assert any
error pro se. Id. at syllabus. The reviewing court must then decide, after a full
examination of the proceedings and counsel's and the defendant's filings, whether
the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is
granted, new counsel is denied, and the trial court's judgment affirmed. Id.
{¶6} Counsel filed a no-merit brief and we granted Beerman 30 days to file a
pro-se brief which, to date, he has failed to file. In the typical Anders case involving a
guilty plea, the only issues that can be reviewed relate to the plea or the sentence.
See, e.g., State v. Verity, 7th Dist. No. 12 MA 139, 2013–Ohio–1158, ¶ 11.
{¶7} A guilty plea must be made knowingly, voluntarily and intelligently.
State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 7. If it is
not, it has been obtained in violation of due process and is void. State v. Martinez,
7th Dist. No. 03 MA 196, 2004–Ohio–6806, ¶ 11, citing Boykin v. Alabama, 395 U.S.
238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness
of a plea, this court must consider all of the relevant circumstances surrounding it.
State v. Johnson, 7th Dist. No. 07 MA 8, 2008–Ohio–1065, ¶ 8, citing Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
{¶8} The trial court must engage in a Crim.R. 11(C) colloquy with the
defendant in order to ensure that a felony defendant's plea is knowing, voluntary and
intelligent. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶
25–26. During the colloquy, the trial court is to provide specific information to the
defendant, including constitutional and nonconstitutional rights being waived. Crim.R.
11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.
{¶9} The constitutional rights the defendant must be notified of are the right
against self-incrimination, to a jury trial, to confront one's accusers, to compel
witnesses to testify by compulsory process, and to have the state prove guilt beyond
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a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008–
Ohio–5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these
requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115
(1981). "Strict compliance" does not require a rote recitation of the exact language of
the rule. Rather, a reviewing court should focus on whether the "record shows that
the judge explained these rights in a manner reasonably intelligible to the defendant."
Id. at paragraph two of the syllabus.
{¶10} The nonconstitutional rights the defendant must be informed of are the
effect of his plea, the nature of the charges, and the maximum penalty, which
includes an advisement on post-release control if applicable. Further, a defendant
must be notified, if applicable, that he is not eligible for probation or the imposition of
community control sanctions. Finally, this encompasses notifying the defendant that
the court may proceed to judgment and sentence after accepting the guilty plea.
Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d 176 at ¶ 10–13; Sarkozy, 117 Ohio
St.3d 86, at ¶ 19–26. The trial court must substantially comply with these
requirements. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
"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." Id. at 108. In addition to demonstrating the trial court did not substantially
comply with Crim.R. 11(C)(2)(a)(b) the defendant must also show a prejudicial effect,
meaning the plea would not have otherwise been made. Veney, 120 Ohio St.3d 176
at ¶ 15 citing Nero, 56 Ohio St.3d at 108.
{¶11} The trial court's advisement of Beerman's constitutional rights strictly
complied with Crim.R. 11(C)(2)(c), and he indicated he understood he was giving up
all of the above rights. The trial court also substantially complied with Crim.R. 11(C)
when advising Beerman of his nonconstitutional rights. As the trial court's colloquy
with Beerman complied with Crim.R. 11(C), the plea was knowingly, voluntarily, and
intelligently entered. Accordingly, there are no appealable issues regarding the plea.
{¶12} The parties jointly recommended a nine month sentence to be served
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consecutively to the prison term Beerman was incarcerated for at the time. A jointly
recommended sentence that is authorized by law and that is accepted and imposed
by the trial court is not subject to direct appeal. State v. Reed, 7th Dist. No. 09 MA
53, 2010–Ohio–1096; R.C. 2953.08(D)(1). "A sentence is 'authorized by law' and is
not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all
mandatory sentencing provisions." State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, 922 N.E.2d 923.
{¶13} Further, we join our sister districts in holding that where, as here, the
parties jointly recommend consecutive sentences, the trial court was not required to
make the R.C. 2929.14(C)(4) findings in order to impose consecutive sentences, nor
is the sentence subject to appellate review.
{¶14} For example, State v. Weese, 2d Dist. No. 2013–CA–61, 2014–Ohio–
3267, the Second District explained:
Ordinarily, R.C. 2929.14(C)(4) requires certain findings to be
made before consecutive sentences can be imposed. However, the
Ohio Supreme Court explicitly has held that "[a] sentence imposed
upon a defendant is not subject to review under [R.C. 2953.08(D) ] if
the sentence is authorized by law, has been recommended jointly by
the defendant and the prosecution in the case, and is imposed by a
sentencing judge." State v. Porterfield, 106 Ohio St.3d 5, 2005–Ohio–
3095, 829 N.E.2d 690, ¶ 25. In addition, the court stated that "[t]he
General Assembly intended a jointly agreed-upon sentence to be
protected from review precisely because the parties agreed that the
sentence is appropriate. Once a defendant stipulates that a particular
sentence is justified, the sentencing judge no longer needs to
independently justify the sentence." Id. Therefore, not only were
findings unnecessary, but the agreed sentence is not subject to
appellate review. Any argument to the contrary lacks arguable merit
and would be frivolous. Id.
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Weese at ¶5. Accord State v. Rue, 9th Dist. No. 27622, 2015-Ohio-4008; State v.
Pulliam, 4th Dist. No. 14CA3609, 2015-Ohio-759; State v. Savage, 12th Dist. No.
CA2014-02-002, 2015-Ohio-574; State v. Jefferson, 10th Dist. No. 12AP–238, 2014–
Ohio–11; and State v. Miller, 8th Dist. No. 101086, 2014-Ohio-5685, ¶ 9.1
{¶15} Finally, the trial court properly notified Beerman that upon his release
from prison he would be subject to a discretionary three-year period of post-release
control and explained the ramifications of violating post-release control. R.C.
2967.28(C). The 9 month prison sentence Beerman received is within the 6 to 18
month statutory range for the charge. R.C. 2929.14(A)(4).
{¶16} In conclusion, because the record contains no apparent errors, counsel
is permitted to withdraw and the judgment of the trial court is affirmed.
Donofrio, P. J., concurs
Waite, J., concurs
1
We note that currently pending before the Ohio Supreme Court is the following certified conflict
question: "In the context of a jointly-recommended sentence, is the trial court required to make
consecutive-sentence findings under R.C. 2929.14(C) in order for its sentence to be authorized by law
and thus not appealable?" State v. Sergent, Case No. 2015-1093. The conflict cases are Weese,
supra, Pulliam, supra, and State v. Sergent, 11th Dist No. 2013–L–125, 2015-Ohio-2603 (holding that
trial court still required to make findings regarding consecutive sentences under R.C. 2929.14(C)(4)
even where the consecutive sentence was jointly recommended).