[Cite as State v. Watts, 2023-Ohio-1297.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-49
:
v. : Trial Court Case No. 21-CR-145
:
JOSEPH WATTS : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on April 21, 2023
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ANDREW PARKER PICKERING, Attorney for Appellee
THOMAS M. KOLLIN, Attorney for Appellant
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HUFFMAN, J.
{¶ 1} Joseph Watts appeals from his convictions in the Clark County Court of
Common Pleas, following pleas of guilty to two counts of rape, both felonies of the first
degree. Watts’s appointed counsel submitted an appellate brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he cannot
find any potentially meritorious appellate issues. Watts was informed of his right to file a
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pro se brief, but none has been filed. The State also did not file a brief. Following an
independent review of the record as required by Anders, we find no issues with arguable
merit for Watts to advance on appeal, and the judgment of the trial court will be affirmed.
Facts and Procedural History
{¶ 2} The victims herein were Watts’s stepdaughters. In exchange for his guilty
pleas to two counts of rape, the State dismissed 25 additional sex offense charges.
Further, by agreement of the parties, the court sentenced Watts to a mandatory term of
10 years for rape on one count and to a mandatory minimum of 10 years to a maximum
of 15 years for rape on the other count, to be served consecutively, for a total minimum
term of 20 years to a maximum of 25 years. The court designated Watts a Tier III sex
offender. This appeal followed.
Anders Standard
{¶ 3} Upon the filing of an Anders brief, an appellate court must determine, “after
a full examination of the proceedings,” whether the appeal is “wholly frivolous.” Anders
at 744; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An
issue is not wholly frivolous based upon a conclusion that the State has a strong
responsive argument. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-
6788, ¶ 4. Rather, a frivolous issue is one about which, “on the facts and law involved,
no responsible contention can be made that offers a basis for reversal.” State v.
Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Upon finding that any
issue is not wholly frivolous, we must reject the Anders brief and appoint new appellate
counsel to represent Watts.
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Anders Analysis and Potential Assignments of Error
Guilty Plea
{¶ 4} Counsel for Watts suggests as a first potential assignment of error that the
trial court failed to comply with Crim.R. 11(C) prior to accepting Watts’s pleas. Counsel
concludes, however, that any argument concerning this issue would be wholly frivolous.
Based upon our independent review, we agree.
{¶ 5} Due process requires that a defendant’s plea be knowing, intelligent, and
voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);
State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, ¶ 15. In accepting a
plea, the trial court must follow the mandates of Crim.R. 11(C). State v. Brown, 2d Dist.
Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 13. “[T]he rule ‘ensures an adequate
record on review by requiring the trial court to personally inform the defendant of his rights
and the consequences of his plea and determine if the plea is understandingly and
voluntarily made.’ ” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d
286, ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975). In
State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 17, the Supreme
Court of Ohio noted that it has “never mandated that a trial court use particular words in
order to comply with Crim.R. 11(C)(2)(c).”
{¶ 6} Crim.R. 11(C)(2)(c) requires that a defendant be advised of certain
constitutional rights, and strict compliance with this part of the rule is required. State v.
Thompson, 2d Dist. Montgomery No. 28308, 2020-Ohio-211, ¶ 5. If a trial court fails to
strictly comply with Crim.R. 11(C)(2)(c), “the defendant’s plea should be deemed invalid
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on appeal. * * *.” State v. Hutchins, 2d Dist. Clark No. 2021-CA-22, 2021-Ohio-4334,
¶ 7.
Crim.R. 11(C)(2)(a) requires that a trial court determine whether a
defendant is “making [a] plea voluntarily,” and Crim.R. 11(C)(2)(b) requires
that the court inform the defendant of the consequences of the plea. Given
that these parts of the rule relate to nonconstitutional issues, the “defendant
must affirmatively show prejudice to invalidate [a] plea” where the trial court
fails to comply fully with Crim.R. 11(C)(2)(a)-(b). (Citation omitted.) State
v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 14; State
v. Rogers, 2020-Ohio-4102, 157 N.E.3d 142, ¶ 16 (12th Dist.). To show
that he was prejudiced by the trial court's partial noncompliance with
Crim.R. 11(C)(2)(a)-(b), the defendant must demonstrate that [he] “would
[not] otherwise have entered the plea.” State v. Thompson, 2d Dist.
Montgomery No. 28308, 2020-Ohio-211, ¶ 5. Where a trial court
completely fails to comply with Crim.R. 11(C)(2)(a)-(b), however, a
defendant's plea should be invalidated on appeal, and the defendant need
not show prejudice. Dangler at ¶ 14; Rogers at ¶ 16.
Id. at ¶ 8.
{¶ 7} The transcript of the plea hearing, which we have independently and
thoroughly reviewed, reveals that the trial court fully complied with the requirements of
Crim.R. 11(C). The court strictly complied with Crim.R. 11(C)(2)(c) in personally advising
Watts of his constitutional rights, namely that his guilty pleas waived his rights to a jury
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trial, to confront witnesses, to have compulsory process for obtaining witnesses in his
favor, and to require the State to prove his guilt beyond a reasonable doubt at a trial in
which Watts could not be compelled to testify. Finally, the court ascertained that Watts’s
pleas were entered voluntarily, with an understanding of the charges and the maximum
penalties involved, and the court informed him that his mandatory sentences precluded
consideration of community control at disposition. Crim.R. 11(C)(2)(a) and (b).
Accordingly, any argument regarding noncompliance with Crim.R. 11 would be wholly
frivolous.
Sentencing
{¶ 8} Counsel’s second potential assignment of error suggests that Watts’s
consecutive sentences were not clearly and convincingly supported by the record.
“Agreed sentences, like the ones in this case, are generally not reviewable on appeal
* * *.” State v. Coffee, 2d Dist. Nos. 2022-CA-54, 2022-CA-55, 2023-Ohio-474, ¶ 11.
R.C. 2953.08(D)(1) provides that a “sentence imposed upon a defendant is not subject to
review under this section 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.” “In other words, a sentence that is ‘contrary to law’ is appealable by a defendant;
however, an agreed-upon sentence may not be if (1) both the defendant and the state
agree to the sentence, (2) the trial court imposes the agreed sentence, and (3) the
sentence is authorized by law. ” Coffee at ¶ 11, quoting State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16, citing R.C. 2953.08(D)(1). “ ‘If all three
conditions are met, the defendant may not appeal the sentence.’ ” Id., quoting
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Underwood.
{¶ 9} 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.’ ” Id.
at ¶ 12, quoting Underwood at ¶ 20. These provisions include “ ‘making, when
applicable, the findings required for the imposition of consecutive sentences * * *.’ ” Id.,
quoting State v. Smith, 2d Dist. Montgomery Nos. 28208, 28209, 28210, 2020-Ohio-2854,
¶ 8. However, “in the context of a jointly recommended sentence that includes
nonmandatory consecutive sentences, a trial court is not required to make the
consecutive-sentence findings set out in R.C. 2929.14(C)(4).” State v. Sergent, 148
Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 43.
{¶ 10} Here, the court imposed the mandatory sentences agreed to by Watts and
the State. We note that Watts’s sentences were not mandatory consecutive sentences,
as in the case of, for example, failure to comply, pursuant to R.C. 2921.331(D).
Moreover, Watts’s sentences were authorized by law. Although not required to do so,
the trial court made findings pursuant to R.C. 2929.14(C)(4). Specifically, it found
“consecutive sentences necessary to protect the public from future crime by the
defendant and that consecutive sentences are not disproportionate to the seriousness of
his conduct and to the danger he poses to the public.” The court further found that “these
two multiple offenses were committed as part of one or more courses of conduct, and the
harm caused by these two multiple offenses so committed was so great or unusual that
no single term for any of the offenses committed as part of the course of conduct
adequately reflects the seriousness of the defendant’s conduct.” R.C. 2929.14(C)(4)(b).
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The court incorporated its findings into the judgment entry of conviction. Watts’s
sentences were also within the statutory range. R.C. 2929.14 (A)(1)(b); R.C.
2929.14(1)(a); R.C. 2929.144(B)(2). Based upon the foregoing, Watts’s sentences are
not reviewable on appeal. Accordingly, any argument on appeal that his consecutive
sentences are not clearly and convincingly supported by the record is wholly frivolous.
Conclusion
Our independent Anders review demonstrates no issues with arguable merit for
appellate purposes. The judgment of the trial court is affirmed.
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WELBAUM, P.J. and TUCKER, J., concur.