[Cite as State v. Hale, 2016-Ohio-7522.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
State of Ohio Court of Appeals No. H-15-021
Appellee Trial Court No. CRI-2015-0118
v.
Curtis M. Hale DECISION AND JUDGMENT
Appellant Decided: October 28, 2016
*****
John M. Felter, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal brought by appellant from the judgment of the Huron
County Court of Common Pleas. In this case, the court accepted appellant’s guilty plea
to a violation of R.C. 2925.11(A)(C)(6)(a), Possession of Heroin, a felony of the fifth
degree, R.C. 2925.03(A)(2)(C)(6)(d), Trafficking in Heroin, a felony of the third degree,
and to R.C. 2923.24(A), Possession of Criminal Tools, a felony of the fifth degree.
{¶ 2} The remaining two counts of the indictment were dismissed.
{¶ 3} Appellant was sentenced to serve a period of incarceration of 12 months on
Count 1, possession of heroin, 36 months on Count 2, trafficking in heroin, and 12
months on Count 5, possession of criminal tools. The court further ordered that the
sentences imposed in Count 1 and Count 2 were to be served consecutively and Count 5
was to run concurrently, for a total of 48 months in prison.
{¶ 4} Appellant was also ordered to pay costs.
{¶ 5} Appointed counsel has filed a brief and requested leave to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Under Anders, if, after a conscientious examination of the case, counsel
concludes the appeal to be wholly frivolous, he should so advise the court and request
permission to withdraw. Id. at 744. This request must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. In addition,
counsel must provide appellant with a copy of the brief and request to withdraw, and
allow appellant sufficient time to raise any additional matters. Id. Once these
requirements are satisfied, the appellate court is required to conduct an independent
examination of the proceedings below to determine if the appeal is indeed frivolous. Id.
If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the
appeal without violating any constitutional requirements. Id.
2.
{¶ 6} In this case, appellant’s appointed counsel has satisfied the requirements set
forth in Anders, supra. This court further notes that appellant did not file a pro se brief
on his own behalf in this appeal. Appellee state of Ohio has not filed a responsive brief.
{¶ 7} Accordingly, this court shall proceed with an examination of the potential
assignments of error set forth by counsel. We have reviewed and considered the entire
record from below including the transcript of all proceedings and journal entries and
original papers from the Huron County Court of Common Pleas as well as the briefs filed
by counsel. Upon this review we will determine if this appeal lacks merit and is,
therefore, wholly frivolous.
{¶ 8} Counsel refers to several possible, but ultimately indefensible assignments
of error:
1. The trial court erred by not properly arraigning the
Defendant/Appellant.
2. The trial court erred by accepting the Defendant/Appellant’s
guilty plea.
3. The trial court erred by imposing consecutive sentences on
Defendant/Appellant.
4. The trial court erred by failing to merge Counts One (1) and Two
(2).
5. Defendant/Appellant was denied effective assistance of counsel.
3.
{¶ 9} Counsel argues as a possible assignment that appellant was not properly
arraigned and there may have been defects with regard to time, place or manner of
service. However, the record reflects that appellant was appointed counsel at his
arraignment and acknowledged receipt of the indictment at least 24 hours prior to his first
court appearance and further, waived any reading of the charges and entered pleas of not
guilty to all of the charges. Appellant ultimately entered pleas of guilty to three counts
and the remaining counts were dismissed. Counsel is correct in asserting that when a
defendant enters a guilty plea, his appellate issues are limited to attacking the voluntary,
knowing, and intelligent nature of the plea and “may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry
of the guilty plea.” State v. Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d
Dist.1991). Therefore, the first proposed assignment of error is found not well-taken.
{¶ 10} Counsel’s next proposed assignment of error concerns the acceptance of
appellant’s guilty plea. A guilty or no contest plea must be made knowingly,
intelligently, and voluntarily to be valid under both the United States and Ohio
Constitutions. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);
State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Therefore, before
accepting a plea of guilty or no contest to a felony offense, Crim.R. 11(C)(2) requires that
a trial court conduct a hearing with a personal colloquy with the defendant, make specific
determinations and give specific warnings required by Crim.R. 11(C)(2)(a) and (b), and
4.
notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c) that he
would be waiving. State v. Acosta, 6th Dist Wood No. WD-15-066, 2016-Ohio-5698.
{¶ 11} The transcript of the June 29, 2015 plea hearing establishes that the trial
court engaged in a full and complete colloquy with the appellant concerning his pleas as
required by Crim.R.11(C) (2). Based upon this fact, we find the second proposed
assignment of error not well taken.
{¶ 12} Counsel further presents as a third potential assignment of error the
imposition of consecutive sentences. Before imposing consecutive sentences, a trial
court must find that consecutive sentences are necessary to protect the public from future
crime or to punish the offender, that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public,
and that one of the circumstances listed at R.C. 2929.14(C)(4)(a), (b), (c) existed.
{¶ 13} Specifically, R.C. 2929.14( C) (4) provides:
(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and if the court also finds any of the
following:
5.
(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.
{¶ 14} Both the transcript of the sentencing proceeding of August 12, 2015 and the
sentencing judgment entry establish that the trial court found that a consecutive sentence
was necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. Further, the court specifically
found that at least one of the offenses were committed while the appellant was under a
community control sanction from Richland County, Ohio and that the criminal history of
the appellant was extensive.
6.
{¶ 15} Upon review of the record, we agree with appellant’s counsel and find this
proposed assignment to be meritless.
{¶ 16} Another proposed assignment of error is whether the trial court should have
merged Count 1 and Count 2. However, Count 1 of the indictment alleges that the
possession of heroin occurred on October 11, 2013. In Count 2 it is alleged that the
appellant engaged in trafficking in heroin on February 11, 2015. The dates of these
offenses are over 16 months apart. Counsel is correct in his conclusion that the doctrine
of merger does not apply where the offenses occurred in such remote time. Under R.C.
2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of
all the offenses if any one of the following are true: (1) the conduct constitutes offenses
of dissimilar import, (2) the conduct shows that the offenses were committed separately,
or (3) the conduct shows that the offenses were committed with separate animus.
{¶ 17} Therefore, we agree that this potential assignment of error is likewise
meritless.
{¶ 18} Counsel raises one final potential assignment of error that appellant was
denied effective assistance of counsel. It is well-established that claims of ineffective
assistance of counsel are reviewed under the standard set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish
ineffective assistance of counsel, an accused must show: (1) that his trial counsel’s
performance was so deficient that the attorney was not functioning as the counsel
7.
guaranteed by the Sixth Amendment of the United States Constitution, and (2) that
counsel’s deficient performance prejudiced the defense. Id. at 687. Prejudice is shown
where there is a reasonable probability that a different result would have occurred in the
case but for the counsel’s unprofessional errors. State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraph three of the syllabus. The Supreme Court defines a
reasonable probability as “a probability sufficient to undermine confidence in the
outcome.” Strickland at 694. State v. Chaney, 6th Dist. Lucas No. L-14-1161, 2015-
Ohio-3293.
{¶ 19} We have thoroughly reviewed the record of the proceedings below and can
find nothing to establish any deficiency in the performance of appellant’s trial counsel.
Therefore, this proposed assignment of error is without merit.
{¶ 20} We have accordingly conducted an independent examination of the record
pursuant to Anders v. California and have further considered the appellant’s proposed
assignments of error. The motion of counsel for appellant requesting to withdraw as
counsel is granted, and this appeal is dismissed for the reason that it is wholly frivolous.
{¶ 21} The judgment of the Huron County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24. The clerk is
ordered to serve all parties with notice of this decision.
Judgment affirmed.
8.
H-15-021
State v. Hale
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
9.