[Cite as State v. Goldsmith, 2017-Ohio-484.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1126
Appellee Trial Court No. CR0201601625
v.
Charles Goldsmith DECISION AND JUDGMENT
Appellant Decided: February 10, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Grant C. Kozy, Assistant Prosecuting Attorney, for appellee.
Steven T. Casiere, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Charles Goldsmith, appeals the May 31, 2016 judgment of the
Lucas County Court of Common Pleas sentencing him following his conviction of one
count of possessing criminal tools. For the reasons that follow, we affirm.
{¶ 2} On April 5, 2016, appellant was indicted on one count of theft, one count of
possessing criminal tools and one count of receiving stolen property. Appellant pled not
guilty to the charges.
{¶ 3} On May 9, 2016, appellant withdrew his not guilty plea and entered a no
contest plea to one count of possessing criminal tools, a felony of the fifth degree. On
May 31, 2016, a sentencing hearing was held and appellant was sentenced to 11 months
in prison. A nolle prosequi was entered as to the two other counts of the indictment.
This appeal ensued.
{¶ 4} On August 8, 2016, appellant’s appointed counsel filed a request to
withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Counsel asserted that after thoroughly reviewing the transcript of proceedings in
the trial court and the applicable case law, no meritorious assignments of error could be
presented. Counsel did, however, submit three potential assignments of error:
1.) The trial court committed reversible error by sentencing appellant
to prison for a 5th degree felony.
2.) The trial court committed reversible error by accepting
appellant’s no contest plea.
3.) The trial court committed reversible error by ordering appellant
to pay costs of confinement and assigned counsel.
2.
{¶ 5} The state filed a brief concurring with the conclusion of appellant’s counsel
that there was no arguable basis for a valid assignment of error and urging this court to
permit counsel to withdraw.
{¶ 6} The procedure to be followed by appointed counsel who desires to withdraw
for want of a meritorious, appealable issue is set forth in Anders, as well as State v.
Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the United
States Supreme Court found if counsel, after a conscientious examination of the case,
determines that the appeal is wholly frivolous, counsel should so advise the court and
request permission to withdraw. Anders at 744. This request must be accompanied by a
brief identifying anything in the record which could arguably support the appeal. Id. In
addition, counsel must furnish the client with a copy of the brief and request to withdraw
and allow the client sufficient time to raise any matters the client so chooses. Id. Once
these requirements have been fulfilled, the appellate court must conduct a full
examination of the proceedings held below to decide if the appeal is indeed frivolous. Id.
If the appellate court determines the appeal is frivolous, it may grant counsel’s request to
withdraw and dismiss the appeal without violating constitutional requirements, or it may
proceed to a decision on the merits if required by state law. Id.
{¶ 7} Here, appellant’s counsel has satisfied the requirements set forth in Anders.
We observe appellant has not filed a pro se brief or otherwise responded to counsel’s
request to withdraw. Accordingly, we shall proceed with an examination of the potential
3.
assignments of error set forth by appellant’s counsel, as well as the entire record, to
determine if this appeal lacks merit and is, therefore, wholly frivolous.
First Potential Assignment of Error
{¶ 8} Appellant contends the trial court erred by sentencing him to prison since
there is a presumption against imposition of a prison sentence for a fifth-degree felony.
{¶ 9} R.C. 2929.13(B)(1)(a) creates a presumption against imposing prison time
and in favor of community control sanctions for nonviolent fourth or fifth-degree felonies
which meet certain criteria. Despite this presumption, a trial court may sentence an
offender to prison if the court finds one of the factors under R.C. 2929.13(B)(1)(b)(i)-(xi)
exists to overcome the presumption. One of these factors includes “[t]he offender
committed the offense * * * as part of an organized criminal activity.” R.C.
2929.13(B)(1)(b)(ix).
{¶ 10} Here, appellant was convicted of a nonviolent fifth-degree felony. In
addition, none of the criteria in R.C. 2929.13(B)(1)(a)(i)-(iv) apply. Thus, the
presumption against a prison term under R.C. 2929.13(B)(1)(a) has been met. However,
the trial court found at sentencing that appellant’s case was a coordinated calculated theft
ring. The court noted the effort, plan and organization that appellant and his cohorts
perpetrated on businesses in northwest Ohio. The court also found appellant was not
amenable to community control.
4.
{¶ 11} The trial court’s finding, that R.C. 2929.13(B)(1)(b)(ix) is applicable,
overcomes the presumption for community control sanctions and allows the court to
sentence appellant to a prison term, within the statutory range.
{¶ 12} The appellate standard of review for felony sentences is set forth in R.C.
2953.08. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.
R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a
sentence and remand for resentencing where we clearly and convincingly find that either
the record does not support the trial court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
Id. In determining whether a sentence is clearly and convincingly contrary to law, the
approach in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, can
provide guidance. Id. at ¶ 15.
Significantly, Kalish determined that a sentence was not clearly and
convincingly contrary to law in a scenario in which it found that the trial
court had considered the R.C. 2929.11 purposes and principles of
sentencing, had considered the R.C. 2929.12 seriousness and recidivism
factors, had properly applied post release control, and had imposed a
sentence within the statutory range. Id.
{¶ 13} Here, the record shows at the sentencing hearing the trial court indicated it
had considered the record, the oral statements made at the hearing and the presentence
report. The court stated appellant’s crime was “far greater, far more serious * * * and
5.
therefore, far more appropriate to punish” with a prison term. The court also noted that
prison was consistent with the purposes of the sentencing statute.
{¶ 14} We find the record supports the trial court’s finding that appellant was
involved in a coordinated calculated theft ring. We further find the trial court properly
considered the purposes and principles of sentencing, as stated in R.C. 2929.11, as well
as the factors in R.C. 2929.12. We further find the eleven-month prison sentence
imposed upon appellant is within the permissible statutory sentencing range for a fifth-
degree felony. See R.C. 2929.14(A)(5).
{¶ 15} Based on the foregoing, we conclude the trial court properly sentenced
appellant to a term of imprisonment, and the eleven-month sentence is not contrary to
law. The first potential assignment of error is not well-taken.
Second Potential Assignment of Error
{¶ 16} Appellant argues the trial court erred by accepting his no contest plea
without complying with Crim.R. 11.
{¶ 17} The trial court must substantially comply with Crim.R. 11(C)(2)(a) before
accepting a guilty plea or no contest plea. State v. Nero, 56 Ohio St.3d 106, 108, 564
N.E.2d 474 (1990); State v. Faulkner, 6th Dist. Lucas No. L-10-1147, 2011-Ohio-2696,
¶ 14. Substantial compliance means “‘under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving.’” State v. Lamb, 156 Ohio App.3d 128, 2004-Ohio-474, 804 N.E.2d 1027, ¶ 14
(6th Dist.) (Citations omitted.).
6.
{¶ 18} Here, at a joint plea hearing with one of appellant’s co-defendants, the trial
court, in accordance with Crim.R. 11(C)(2)(a), addressed appellant personally and
ascertained that appellant was 22 years old, could read and write the English language
and was not under the influence of alcohol or drugs.
{¶ 19} The court explained to appellant the penalty for a fifth-degree felony was a
minimum of six months in prison and a maximum of 12 months in prison, if a prison
sentence was imposed, a possible three-year term of postrelease control, and a potential
fine of “between zero, no fine, and the maximum fine of $2,500.” The court informed
appellant that, by entering a plea, he was waiving his right to a jury trial, to have the
elements of the charged offenses proved beyond a reasonable doubt, to cross-examine
witnesses at trial, to subpoena witnesses, and to refuse to testify on his own behalf. The
court also apprised appellant of the consequences of a felony conviction as well as the
limited rights to appeal his plea and sentence. The court confirmed that appellant had
consulted with his attorney and appellant was satisfied with counsel’s advice and
competence.
{¶ 20} Following the above exchange, the court found appellant was adequately
informed of his constitutional rights and knowingly, intelligently and voluntarily waived
those rights. The court further found appellant’s plea was knowingly and voluntarily
made, appellant understood the nature of the charge, the effect of the plea as well as the
penalties involved. The court also found appellant was advised of his right of appeal.
7.
{¶ 21} The trial court accepted appellant’s plea, and found appellant guilty of one
count of possession of criminal tools. The matter was continued for sentencing to allow a
presentence report to be prepared.
{¶ 22} Based upon the foregoing, we find the trial court substantially complied
with Crim.R. 11(C), appellant’s plea was knowingly, voluntarily and intelligently made,
and the trial court properly accepted appellant’s plea. Accordingly, the second potential
assignment of error is not well-taken.
Third Potential Assignment of Error
{¶ 23} Appellant argues the trial court committed plain error by ordering him to
pay the costs of confinement and assigned counsel fees.
{¶ 24} The record reveals appellant did not object, at the time of sentencing, to the
imposition of costs. An appellate court need not consider an error which was not called
to the trial court’s attention when the error could have been avoided or corrected by the
trial court. State v. Carter, 89 Ohio St.3d 593, 598, 734 N.E.2d 345 (2000). Thus, the
error is waived absent plain error. Id. “Plain error does not exist unless it can be said
that but for the error, the outcome of the trial would clearly have been otherwise.” State
v. Wogenstahl, 75 Ohio St.3d 344, 357, 662 N.E.2d 311 (1996).
{¶ 25} R.C. 2929.18(A)(5)(a)(ii) permits a trial court to impose on an offender all
or part of the costs of confinement, and R.C. 2941.51(D) mandates that an offender pay
some or all of the costs of assigned counsel. However, before these costs can be
imposed, the trial court must find the offender has the ability to pay, and this finding must
8.
be supported by clear and convincing evidence in the record. State v. Jobe, 6th Dist.
Lucas No. L-07-1413, 2009-Ohio-4066, ¶ 80.
{¶ 26} Clear and convincing evidence is that degree of proof which is more than a
mere “preponderance of the evidence,” but not of such certainty that is required “beyond
a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of
facts a firm belief as to the facts sought to be established. Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 27} Here, the trial court found appellant had or reasonably would be expected
to have the ability to pay all or a part of the costs of confinement and assigned counsel as
well as supervision and prosecution. The record contains evidence that appellant was
22 years old at the time of sentencing, he could read and write English and he had
graduated from high school. The record further reveals appellant was single with no
dependents, he had no previous criminal record and he had been employed as a real estate
agent in Kentucky making $500 a week.
{¶ 28} We conclude the trial court’s finding that appellant had or may be expected
to have the means to pay the costs of confinement and appointed counsel is supported by
clear and convincing evidence in the record. Given the circumstances that appellant was
sentenced to less than one year in prison and he is a high school graduate with prior work
experience, it was not plain error for the trial court to order appellant to pay the costs of
confinement and appointed counsel. Accordingly, the third potential assignment of error
is not well-taken.
9.
{¶ 29} Next, we have an obligation to fully examine the record in this case to
determine whether an appeal would be frivolous. Anders, 386 U.S. 738, 744, 87 S.Ct.
1396, 18 L.Ed.2d 493. Our review of the record, including the transcripts of appellant’s
arraignment, plea hearing and sentencing hearing, does not disclose any errors by the trial
court which would justify a reversal of the judgment. We therefore find this appeal to be
wholly frivolous, and counsel’s request to withdraw is found well-taken and is granted.
{¶ 30} The judgment of the Lucas County Court of Common Pleas is hereby
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.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
10.