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State v. Martin

Court of Appeals of Ohio, Sixth District, Sandusky

February 16, 2018

State of Ohio Appellee
Jodi A. Martin Appellant

         Trial Court No. 15 CR 996

          Brett A. Klimkowsky, for appellant.


          OSOWIK, J.

         {¶ 1} This is an appeal brought by appellant from the judgment of the Sandusky County Court of Common Pleas. In this case, the court accepted appellant's plea of guilty to the offense of theft, a violation of R.C. 2913.02(A)(1), a felony of the fifth degree. The state recommended the imposition of no more than 60 days in the local jail and restitution to the victim, Fremont VFW, in the amount of $175, 000.

         {¶ 2} Appellant was sentenced to serve a period of incarceration of 12 months in prison. Appellant was also found to be reasonably expected to have the ability to pay all or part of the costs of assigned counsel and prosecution pursuant to R.C. 2941.51(D) and was therefore ordered to pay those costs.

         {¶ 3} 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

         {¶ 4} In this case, appellant's appointed counsel has satisfied the requirements set forth in Anders, supra.

         {¶ 5} 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 Sandusky County Court of Common Pleas as well as the brief filed by counsel. Upon this review we will determine if this appeal lacks merit and is, therefore, wholly frivolous.

         {¶ 6} At the outset, we note that appellee has not filed a responsive brief and appellant herself has not filed a brief on her own behalf.

         {¶ 7} Counsel has not identified any potential assignments of error but has outlined his analysis and review of the record that included examination of the plea, the sentence and effectiveness of trial counsel.

         {¶ 8} 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 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 No. WD-15-066, 2016-Ohio-5698.

         {¶ 9} The transcript of the March 21, 2017 plea hearing establishes that the trial court engaged in a full and complete colloquy with appellant concerning her plea as required by Crim.R. 11(C) (2). Appellant understood the nature of her guilty plea and answered affirmatively when advised of each of her constitutional rights that she would be forfeiting by not proceeding to trial. She also acknowledged that the court was not bound by the recommendation of the prosecution concerning the 60 day jail sentence and that she could be sentenced up to a maximum period of incarceration of 12 months in prison and be subjected to as much as a $2, 500 fine and costs as well as restitution in the amount of $175, 000. She was also appropriately notified of her postrelease control. Based upon this review, we agree with counsel and find no error in the plea before the trial court.

         {¶ 10} Appellant was sentenced to serve a period of 12 months imprisonment, which is the maximum period of incarceration for a fifth-degree felony pursuant to R.C. 2929.14(A)(5). As such, although entitled to an appeal as of right under R.C. 2953.08(A)(1), her sentence is reviewed under R.C. 2953.08(G), which compels appellate courts to modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.

         {¶ 11} 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 ...

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