Salus Populi Suprema Lex Esto

About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 01-11-2019

Case Style:


Case Number: 18 CA 0035

Judge: John W. Wise


Plaintiff's Attorney: DAN BENOIT

Defendant's Attorney: JENNIFER WARMOLTS


On September 17, 2017, a male individual and members of his family were
walking near Geller Park in Newark, Ohio. According to the State’s allegations, appellant
drove by in a Ford Mustang, and the male individual yelled at him to slow down. Appellant
turned the vehicle around and drove back. A verbal altercation ensued. Appellant
ultimately accelerated toward the man who had yelled. He then struck him with the
Mustang and “continued to swerve and accelerate” for a time. The man finally fell off of
the hood, and had to be taken to the hospital. He later reported being unable to work and
to pay his rent. See Plea and Sentencing Transcript at 9-11, 19.
{¶3} On March 12, 2018, appellant appeared with counsel before the trial court
and pled guilty to one count of felonious assault, R.C. 2903.11(A)(2)/(D)(1)(a), a felony of
the second degree. The State dismissed an additional misdemeanor count of aggravated
menacing. Appellant was thereupon sentenced to two years in prison.
{¶4} Appellant, originally proceeding pro se, initiated a delayed appeal, with
subsequent leave of this Court, on May 9, 2018.
{¶5} Appellant's present counsel, upon her assignment to the case, reviewed the
matter and thereafter filed a brief pursuant to Anders v. California, infra, asserting that
1 The State has not filed a response brief in this matter.
Licking County, Case No. 18 CA 0035 3
she could find no error prejudicial to appellant for argument. Appellate counsel, on the
same day, filed a conditional motion to withdraw.
{¶6} However, counsel for appellant has submitted one potential assigned error
under Anders, which we re-state as follows:
{¶8} Appellant was given an opportunity to file a pro se brief raising additional
potential assignments of error, but he has apparently chosen not to do so.
{¶9} As noted in our recitation of facts, present appellate counsel has presented
us with an Anders brief following her appointment to the case. In Anders v. California
(1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the United States Supreme Court
established the following five criteria: (1) A showing that appellant's counsel thoroughly
reviewed the transcript and record in the case before determining the appeal to be
frivolous; (2) a showing that a motion to withdraw has been filed by appellant's counsel;
(3) the existence of a brief filed by appellant's counsel raising any potential assignments
of error; (4) a showing that appellant's counsel provided to the appellant a copy of said
brief; and (5) a showing that appellant's counsel provided appellant adequate opportunity
to file a pro se brief raising any additional assignments of error appellant believes the
appellate court should address. See State v. Jennings, 5th Dist. Richland No. 98CA24,
1999 WL 547919.
{¶10} Pursuant to Anders, if, after a conscientious examination of the record, a
defendant's counsel concludes the case is wholly frivolous, then he or she should so
Licking County, Case No. 18 CA 0035 4
advise the court and request permission to withdraw. Id. at 744. Once the defendant's
counsel satisfies the aforesaid 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.
{¶11} We initially find appellate counsel in this matter has adequately followed the
procedures required by Anders v. California, supra.
{¶12} We first turn to the merits of appellant's counsel's potential Assignment of
Error alleging ineffective assistance of trial counsel in appellant’s entry of a guilty plea.
{¶13} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio
adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for
ineffective assistance of counsel. First, we must determine whether counsel's assistance
was ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his or her essential duties to the
client. If we find ineffective assistance of counsel, we must then determine whether or not
the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
of the outcome of the trial is suspect. This requires a showing that there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the trial would have
been different. Id. However, trial counsel is entitled to a strong presumption that all
Licking County, Case No. 18 CA 0035 5
decisions fall within the wide range of reasonable professional assistance. State v. Sallie
(1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.
{¶14} Crim.R. 11(C)(2) states as follows:
In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest without
first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant's favor, and to require the state to
prove the defendant's guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
{¶15} Generally, an attorney's advice to take a plea deal is not ineffective
assistance of counsel. See State v. Shannon, 11th Dist. Trumbull No. 2017-T-0012, 2017
Ohio-9344, ¶ 34, citing State v. Sturgill, 12th Dist. Clermont No. CA2014–09–066, 2015–
Ohio–1933, ¶ 20. In order to show ineffective assistance of counsel in a plea deal, a
Licking County, Case No. 18 CA 0035 6
defendant must show that the ineffective assistance “precluded a defendant from entering
his plea knowingly and voluntarily.” State v. Selvaggio, 11th Dist. Lake No. 2017-L-128,
2018-Ohio-3532, ¶ 15, quoting State v. Madeline, 11th Dist. Trumbull No. 2000-T-0156,
2002 WL 445036.
{¶16} In reviewing the present issue in an Anders context, an appellate court
should review the transcript of the plea hearing in light of Crim.R. 11 and consider whether
there are any arguable issues with respect to the knowing, intelligent, and voluntary
nature of the appellant’s guilty plea. See State v. Kerr, 2nd Dist. Champaign No. 2018
CA-8, 2018-Ohio-4882, ¶ 5. Having done so in the case sub judice, we find no arguable
issues in regard to appellant’s counsel’s sole potential Assignment of Error, and it is
therefore overruled.
Additional Potential Issues
{¶17} In the case sub judice, appellant was convicted, following his guilty plea, of
a single second-degree felony count. We sua sponte note, inter alia, that a guilty plea
waives a defendant's right to challenge the sufficiency or manifest weight of the evidence.
See State v. Loper, 5th Dist. Licking No. 09-CA-0043, 2009-Ohio-5919, ¶ 7. The fact of
the sole count would also obviate any issues of merger of offenses. Furthermore, “[a]
prison sentence for a second-degree felony is not mandatory, but presumed.” State v.
Bauman, 7th Dist. Columbiana No. 17 CO 0016, 2018-Ohio-4913, ¶87; R.C.
2929.13(D)(1). Under R.C. 2929.14(A)(2), the possible prison sentences for a second
degree felony are two, three, four, five, six, seven, or eight years. Here, appellant’s prison
sentence was the minimum term under the statutory range.
Licking County, Case No. 18 CA 0035 7
{¶18} Accordingly, after independently reviewing the record, we agree with
counsel's conclusion that no arguably meritorious claims presently exist upon which to
base further direct appeal.
{¶19} Therefore, we find the present appeal to be wholly frivolous under Anders,
grant counsel's request to withdraw, and affirm the trial court’s judgment of conviction and

Outcome: For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Licking County, Ohio, is hereby affirmed.

Plaintiff's Experts:

Defendant's Experts:


Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2019 MoreLaw, Inc. - All rights reserved.