State v. Colburn

[Cite as State v. Colburn, 2022-Ohio-1029.]

COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 21-COA-006
BROCK COLBURN :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 2020-
CRI-106

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 29, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ASHLAND COUNTY PROSECUTOR DONALD GALLICK
110 Cottage Street #3 190 North Union Street, #102
Ashland, OH 44805 Akron, OH 44304
[Cite as State v. Colburn, 2022-Ohio-1029.]

Gwin, P.J.

{¶1} Appellant Brock Colburn appeals his conviction and sentence from the

Ashland County Court of Common Pleas.

Facts & Procedural History

{¶2} On June 11, 2020, appellant was indicted on the following charges:

aggravated possession of drugs (methamphetamine), a felony of the fifth degree, in

violation of R.C. 2925.11(C)(1)(a), and falsification, a misdemeanor of the first degree, in

violation of R.C. 2921.13(A)(3) and (F)(1).

{¶3} The trial court initially held a plea hearing on January 21, 2021. The trial

judge began the plea, reviewed the plea form with appellant, asked if appellant was under

the influence of drugs or alcohol, and asked appellant if he was satisfied with his

attorney’s representation. When the trial judge asked appellant if he was currently on

post-release control, appellant stated he was. However, it was unclear how much time

appellant had left on post-release control. Thus, the trial judge stated he would not take

a plea on that day.

{¶4} The trial court issued a judgment entry on January 21, 2021, stating that,

“during the [plea] hearing the Court became aware that the Defendant is currently under

Post Release Control (PRC) and that the Court does not have the PRC information.”

Accordingly, the trial court continued the matter until January 27, 2021.

{¶5} The trial court held another plea hearing on January 27, 2021. At the

beginning of the hearing, the trial court stated it received a statement from the Adult

Parole Authority that the post-release control enhancement was 1,698 days. Appellant
Ashland County, Case No. 21-COA-006 3

confirmed he wanted to continue with the plea, even in light of the post-release control

enhancement.

{¶6} The trial court stated, “okay, well, Mr. Colburn, I am basically going to start

over. I think that we got about halfway through the plea colloquy last time when we hit

the post-release control section, that is what slowed us down, but I am going to start over

from the beginning since this is a new hearing and a new day.” Appellant confirmed he

was not under the influence or alcohol or medications, and he was satisfied with his

attorney.

{¶7} The trial court reviewed the plea form with appellant, showing him on the

document where it stated the maximum penalties and where it stated the various rights

appellant was giving up by pleading guilty.

{¶8} The trial court then asked appellant if he understood the maximum penalty.

Specifically, the court asked appellant if he understood that if the court imposed all or part

of the remaining post-release control time of 1,698 days, any time imposed with regard

to the post-release control enhancement would be served consecutive to any prison

sanction the court imposed on the aggravated possession of drugs offense. Appellant

responded, “yes, your honor.” Appellant again confirmed he understood there was the

potential for 1,698 days of post-release control enhancement time to be imposed

consecutive to the sentence for the new felony. Appellant stated he understood that, in

a worst-case scenario, the court could impose a twelve (12) month prison sentence on

the aggravated possession of drugs charge and then impose 1,698 days consecutively

for a total of 5 and 2/3 years in prison.
Ashland County, Case No. 21-COA-006 4

{¶9} The trial court then asked appellant if he gave up his constitutional rights as

follows: the right to a jury trial, right to have the state prove his guilt beyond a reasonable

doubt, the right to confront and cross-examine witnesses, the right to subpoena

witnesses, and the right to remain silent. Appellant stated he did.

{¶10} At the conclusion of the plea colloquy, the trial court found appellant had

knowingly, voluntarily, and intelligently waived his constitutional rights. Appellant entered

a plea of guilty to Count 1, aggravated possession of drugs. The trial court accepted

appellant’s plea and entered a finding of guilty.

{¶11} The trial court issued a judgment entry on January 27, 2021, finding

appellant guilty, ordering a pre-sentence investigation, and dismissing Count 2 as part of

the plea agreement.

{¶12} The trial court ordered a pre-sentence investigation and set the matter for a

sentencing hearing on March 15, 2021. After considering the statutory factors and the

pre-sentence investigation report, the trial court sentenced appellant to serve six (6)

months in prison for aggravated possession of drugs. The trial court specifically noted

that appellant had a case in 2016 in which he had multiple opportunities to prove himself

on community control, but had at least two violations of community control. Further, when

appellant was released on post-release control, he committed this new felony within six

months.

{¶13} The trial court also revoked appellant’s post-release control and imposed

an additional twelve (12) month prison sentence for violation of post-release control

supervision, to be served consecutively with the prison sentence for the new felony. The
Ashland County, Case No. 21-COA-006 5

aggregate prison term was eighteen (18) months. The sentence was journalized via

sentencing entry filed on March 30, 2021. A timely notice of appeal was filed.

{¶14} This Court issued a judgment entry on September 27, 2021, notifying

appellant that his counsel filed an Anders brief, and allowing appellant to file a pro se brief

on or before October 29, 2021. A copy of the judgment entry was served on appellant

via certified U.S. Mail at the Belmont Correctional Institution. Appellant did not file a pro

se brief.

{¶15} Appellate counsel for appellant has filed a motion to withdraw and a brief

pursuant to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S.

924, indicating that the within appeal was wholly frivolous and setting forth two proposed

assignments of error:

{¶16} “I. THE GUILTY PLEA MUST BE VACATED BECAUSE THE TRIAL

COURT CONDUCTED THE PLEA HEARING ON TWO SEPARATE DAYS.

{¶17} “II. THE TRIAL COURT’S DECISION TO IMPOSE A SIX-MONTH PRISON

TERM FOR A FIFTH-DEGREE FELONY CONVICTION MAY HAVE VIOLATED OHIO’S

SENTENCING STATUTES; AND THE TRIAL COURT IMPOSED A CONSECUTIVE

SENTENCE WITHOUT FINDINGS.”

Anders Law

{¶18} 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 must

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
Ashland County, Case No. 21-COA-006 6

copy of the brief and request to withdraw; and, (2) allow the client sufficient time to raise

any matters that the client chooses. Id. 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.

{¶19} In his first proposed assignment of error, appellant asks whether his guilty

plea must be vacated because the trial court conducted the plea hearing on two separate

days.

{¶20} The trial court reset the plea hearing for another day in order to make sure

appellant’s plea was knowing, intelligent, and voluntary because there was not definite

information as to how much time appellant had remaining on post-release control. While

there was an attempt at a plea hearing on January 21st, an entirely new and separate

plea hearing was conducted on January 27th. As the trial court told appellant at the

beginning of the January 27th hearing, the trial court “start[ed] over from the beginning

since this is a new hearing and a new day.”

{¶21} A criminal defendant’s choice to enter a guilty plea is a serious decision.

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. Due process

requires a defendant’s plea be made knowingly, intelligently, and voluntarily; otherwise,

the defendant’s plea is invalid. Id.
Ashland County, Case No. 21-COA-006 7

{¶22} Criminal Rule 11(C) prescribes the process a trial court must use before

accepting a plea of guilty to a felony. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, 897 N.E.2d 621. The trial court must follow certain procedures and engage the

defendant in a detailed colloquy before accepting his or her plea. State v. Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. The court must make determinations and

give the warnings that Criminal Rule 11(C)(2)(a) and (b) require and must notify the

defendant of the constitutional rights that Criminal Rule 11(C)(2) identifies. State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621. The underlying purpose

of Criminal Rule 11 is to convey information to the defendant so that he or she can make

a voluntary and intelligent decision regarding whether to plead. State v. Ballard, 66 Ohio

St.2d 473, 423 N.E.2d 115 (1981). “When a trial court or appellate court is reviewing a

plea submitted by a defendant, its focus should be on whether the dictates of Crim.R. 11

have been followed.” State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991).

{¶23} In this case, there is no issue with the plea hearing, as the trial court

completed the entire Criminal Rule 11 plea colloquy on January 27, 2021. The record

demonstrates the trial court very carefully adhered to Criminal Rule 11, and strictly

complied with all of the requirements of Criminal Rule 11 on January 27, 2021. The trial

court conducted a complete and through colloquy. Appellant acknowledged he

understood his rights, the charges, the plea agreement, the maximum penalties, and the

specific constitutional rights he was waving with the plea. The record supports a

conclusion that the plea was properly entered and accepted.
Ashland County, Case No. 21-COA-006 8

{¶24} The record in this case shows the trial court’s compliance with Criminal Rule

11, and supports the trial court’s determination that appellant’s plea was knowingly,

intelligently, and voluntarily made.

{¶25} Appellant’s first proposed assignment of error is overruled.

II.

{¶26} In his second proposed assignment of error, appellant makes two separate

arguments: (1) the six-month prison term for the fifth-degree felony conviction may have

violated Ohio’s sentencing statutes and (2) the trial court imposed a consecutive sentence

without the required findings for consecutive sentences.

Six-Month Prison Term Sentencing

{¶27} Under R.C. 2953.08(G)(2), 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 sentencing 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. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.

{¶28} “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).

{¶29} 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
Ashland County, Case No. 21-COA-006 9

within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-

015, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-03-026,

2019-Ohio-4209.

{¶30} Appellant was found guilty of aggravated trafficking in drugs, a felony of the

fifth degree. Pursuant to R.C. 2929.14(A)(5), felonies of the fifth degree are punishable

by “a definite term of six, seven, eight, nine, ten, eleven, or twelve months.” The trial court

sentenced appellant to six months in prison. Appellant’s sentence is not contrary to law,

and we find his sentence is within the statutory range for a fifth-degree felony.

{¶31} This Court is therefore without authority to disturb appellant’s sentence

absent a finding by clear and convincing evidence that the record does not support the

trial court’s findings under R.C. 2929.11 and 2929.12. In its judgment entry, the trial court

noted it considered the record, all statements, the pre-sentence investigation report, and

the factors set forth in R.C. 2929.11 and R.C. 2929.12.

{¶32} During the sentencing hearing, the trial court specifically noted that

appellant had a case in 2016 in which he had multiple opportunities to prove himself on

community control, but he violated community control twice. Further, when appellant was

given post-release control the second time, he committed the new felony in this case less

than six months later. The trial court concluded appellant is not amenable to community

control sanctions, and a prison term is consistent with the purposes and principles of

sentencing.

{¶33} We do not find clear and convincing evidence that the record does not

support the trial court’s findings or that the sentence is contrary to law. R.C.
Ashland County, Case No. 21-COA-006 10

2953.08(G)(2). This portion of appellant’s proposed second assignment of error is

overruled.

Consecutive Sentences

{¶34} Also, in his second proposed assignment of error, appellant contends the

trial court committed error when it revoked his post-release control and imposed a

consecutive prison term without making the appropriate findings for consecutive

sentences. We disagree.

{¶35} Unlike in a case requiring specific findings for consecutive sentences, R.C.

2929.141(A)(1) does not grant the trial court any discretion. If the trial court chooses to

impose an additional prison term for a violation of post-release control, the defendant

must serve the additional term consecutive to the prison term for the new felony. R.C.

2929.141(A)(1); State v. Baker, 5th Dist. Ashland No. 20 COA 011, 2020-Ohio-3199.

“Because consecutive sentencing for such a prison term is statutorily required, no findings

are necessary.” State v. Byrd, 2nd Dist. Champaign No. 2020-CA-30, 2021-Ohio-1893;

State v. Hahn, 5th Dist. Muskingum No. CT2018-0057, 2019-Ohio-3451.

{¶36} In State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766,

the Ohio Supreme Court held a trial court must inform a defendant who is on post-release

control and is pleading guilty to a new felony offense of the trial court’s authority to revoke

the defendant’s post-release control and impose a prison term consecutively to any term

of imprisonment it imposes for that new felony offense. State v. Krouskoupf, 5th Dist.

Muskingum No. CT2018-0020, 2019-Ohio-806.

{¶37} A majority of the Ohio Supreme Court found in Bishop:
Ashland County, Case No. 21-COA-006 11

Crim.R. 11(C)(2)(a) requires a trial court to advise a criminal defendant on

post-release control for a prior felony, during his plea hearing in a new

felony case, of the trial court’s authority under R.C. 2929.141 to terminate

the defendant’s existing post-release control and to impose a consecutive

sentence for the post-release control violations.

{¶38} Upon our review of the change of plea hearing, we find the trial court

informed appellant there was a potential post-release control prison sanction in this case.

The trial court specifically stated that the court could impose all or part of the remaining

post-release control supervision time of 1,698 days consecutive to the prison sentence

for the aggravated possession of drugs charge. Appellant stated he understood.

Appellant again confirmed he understood there was the potential for 1,698 days of post-

release control enhancement time to be imposed consecutive to the potential sentence

for the new felony. Appellant stated he understood that, in a worst-case scenario, the

court could impose a twelve (12) month prison sentence on the aggravated possession

of drugs charge and then impose 1,698 days for a total of 5 and 2/3 years in prison.

{¶39} We find the trial court complied with the requirements of Bishop and R.C.

2929.141.

{¶40} Based on the foregoing, appellant’s proposed assignments of error are

overruled.
Ashland County, Case No. 21-COA-006 12

{¶41} 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 Ashland County Court of Common Pleas.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur