[Cite as State v. Ringel,
2016-Ohio-5172.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1298
Appellee Trial Court No. CR0201501854
v.
Andrew Ringel DECISION AND JUDGMENT
Appellant Decided: July 29, 2016
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
Andrew Ringel, pro se.
…
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Andrew Ringel, appeals the October 30, 2015
judgment of the Lucas County Court of Common Pleas which, following his guilty plea
to one count of permitting drug abuse, was sentenced to 11 months of imprisonment. For
the reasons that follow, we affirm.
{¶ 2} On May 22, 2015, appellant was indicted on one count of trafficking in
marijuana, R.C. 2925.03, a third degree felony, and one count of possession of marijuana,
R.C. 2925.11, a third degree felony. Appellant entered not guilty pleas to the charges.
On September 16, 2015, appellant agreed to be charged under a bill of information to one
count of permitting drug abuse, R.C. 2925.13, a fifth degree felony. In exchange for
appellant’s guilty plea, the state agreed to recommend a community control sanction.
Appellant then entered a plea of guilty to the charge and was sentenced to 11 months in
prison. The trial court entered a nolle prosequi to the charges brought under the
indictment. This appeal followed.
{¶ 3} Appellant has appealed the conviction and sentence to this court through
appointed counsel. Appellant’s counsel advises the court, however, under procedures
announced in Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967),
that she has thoroughly examined the record, discussed the case with appellant, and is
unable to find meritorious grounds for appeal. Following Anders procedure, appellate
counsel filed a brief setting forth potential grounds for appeal and also filed a request to
withdraw as counsel.
{¶ 4} Counsel notified appellant of her inability to find meritorious grounds for
appeal and provided appellant with copies of both the Anders brief and her motion to
withdraw. Counsel advised appellant of his right to file his own appellate brief.
Appellant has filed an additional brief.
2.
{¶ 5} In her Anders brief, counsel has asserted two potential assignments of error:
Potential First Assignment of Error: The trial court committed
reversible error when it allowed appellant to plead guilty to a felony charge
which was not presented to a grand jury, based on appellant’s waiver of
prosecution by indictment, and consent to be prosecuted through
information.
Potential Second Assignment of Error: The trial court committed
reversible error when it did not follow the state’s sentencing
recommendation, and sentenced appellant to prison.
{¶ 6} Appellant has also raised two potential assignments of error. They provide:
First Assignment of Error: The trial court committed reversible
error when the judge overreached her powers in not allowing defendant to
put his legal affairs in order prior to sentencing. Due to this defendant’s
sentencing [sic] was prejudiced by the unresolved issues in California.
Second Assignment of Error: Defendant’s counsel acted
unreasonably under prevailing professional norms when acting on
defendant’s behalf and with advice. Due to this defendant received
ineffective assistance of counsel.
{¶ 7} Appellant’s counsel first argues that the trial court erred when it allowed
appellant to enter a guilty plea to a felony change which was not presented to grand jury
and charged by indictment. As to a charge by information, R.C. 2941.021provides:
3.
Any criminal offense which is not punishable by death or life
imprisonment may be prosecuted by information filed in the common pleas
court by the prosecuting attorney if the defendant, after he has been advised
by the court of the nature of the charge against him and of his rights under
the constitution, is represented by counsel or has affirmatively waived
counsel by waiver in writing and in open court, waives in writing and in
open court prosecution by indictment.
{¶ 8} As required under R.C. 2941.021, during appellant’s September 16, 2015
plea hearing the trial court informed appellant of his right to be charged through an
indictment by a grand jury; appellant indicated that he understood and that he desired to
waive prosecution by indictment and consent to be prosecuted by information.
Appellant’s consent was memorialized in a signed document which specifically indicated
his waiver of prosecution by indictment. Accordingly, we find that appellant’s counsel’s
first potential assignment of error is not well-taken.
{¶ 9} In appellant’s counsel’s second potential assignment of error she argues that
the trial court erred when it rejected the state’s sentencing recommendation and sentenced
appellant to prison. As this court has stated:
The plain meaning of the term “recommendation” undermines
appellant’s contention that he believed that the trial court was bound by the
state’s recommended two year sentence under the plea agreement. To
recommend is to “advise” or “to present as worthy of acceptance or trial.”
4.
Webster’s Ninth New Collegiate Dictionary (1990) 984. (Internal citation
omitted.) State v. Medrano, 6th Dist. Wood No. WD-08-006, 2008-Ohio-
5809, ¶ 13.
{¶ 10} At the plea hearing appellant was clearly informed that the trial court was
not required to follow the state’s sentencing recommendation. The following discussion
took place:
THE COURT: [A]s to that promise [that the state] will recommend
community control, you understand I’m not bound by that
recommendation, do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And in other words, so you truly understand the
consequences of the plea, presume the worst in the sense that you’ll know
your exposure that would be that the court would make findings, send you
to the penitentiary, … do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you understand the court is not bound by the
State’s recommendation?
THE DEFENDANT: Yes, Your Honor.
{¶ 11} Based on the foregoing, we find that the court did not err by not following
the state’s sentencing recommendation. Appellant’s counsel’s second potential
assignment of error is not well-taken.
5.
{¶ 12} In appellant’s first potential assignment of error he contends that the trial
court erred by not allowing him to return to California prior to sentencing in order to “put
his legal affairs in order.” Denying appellant’s request to go to California for one week,
the court noted that there was not a fugitive warrant pending and that, due to the distance,
it was in Ohio’s interest to retain appellant to ensure that he address the charges against
him.
{¶ 13} Reviewing the argument, we note that a trial court has discretion to
continue bond pending the imposition of sentence. Giving v. Erie Cty. Sheriff, 6th Dist.
Erie No, E-05-092, 2005-Ohio-6844, ¶ 10. Such discretion contemplates the conditions
of bond, including conditions of travel. Reviewing the discussion regarding appellant’s
request to travel to California, we cannot find that the trial court abused its discretion
when it denied the request. Appellant’s first potential assignment of error is not well-
taken.
{¶ 14} In appellant’s second potential assignment of error he complains that his
trial counsel was ineffective by failing to properly pursue appellant’s desire to return to
California to address an outstanding warrant. Specifically, appellant argues that counsel
should have addressed the issue by motion prior to the plea hearing. Appellant claims
that his inability to return to California may have impacted his decision to enter a plea.
{¶ 15} To establish ineffective assistance of counsel, an appellant must
demonstrate “(1) deficient performance of counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
6.
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St.3d 118,
2008-Ohio-3426,
892 N.E.2d 864, ¶ 204,
citing Strickland v. Washington,
466 U.S. 668, 687-88,
104 S.Ct. 2052,
80 L.Ed.2d 674
(1984). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” State v. Sanders,
94 Ohio St.3d 150, 151,
761 N.E.2d 18 (2002). When,
however, a defendant enters a guilty plea or no contest plea, he waives the right to claim
that he was prejudiced by constitutionally ineffective counsel, unless the conduct
complained of is shown to have prevented the defendant from making a knowing and
voluntary plea. State v. Barnett,
73 Ohio App.3d 244, 248-249,
596 N.E.2d 1101 (2d
Dist.1991).
{¶ 16} Upon review of the record below, we cannot say that appellant’s trial
counsel was ineffective. Appellant was indicted on trafficking in marijuana and
possession of marijuana, third degree felonies, each count with a prison sentence range of
nine to 36 months. Appellant’s counsel negotiated a very favorable plea agreement,
permitting drug abuse, a fifth degree felony, with a prison term range of six to 12 months.
{¶ 17} Regarding appellant’s desire to return to California, at the September 16,
2015 plea hearing counsel addressed the matter at length with the trial court
demonstrating that he had been in contact with appellant’s probation officer in California
and had made arrangements necessary to ensure that appellant would be gone only for the
week requested. The state did not make an opposing argument. Appellant has not
presented any evidence in the record that the court would have granted a motion had one
7.
been filed or that appellant would not have entered his guilty plea. Appellant indicated
that he was satisfied with counsel’s representation. In addition, at the October 29, 2015
sentencing hearing it was apparent that appellant’s counsel was well-acquainted with
appellant and the facts of his case; he spoke effectively on appellant’s behalf.
Accordingly, appellant’s second potential assignment of error is not well-taken.
{¶ 18} This court, as required under Anders, has undertaken an independent
examination of the record to determine whether any issue of arguable merit was
presented for appeal. We have found none. Accordingly, we find this appeal is without
merit and wholly frivolous. We grant the motion of appellant’s counsel to withdraw as
counsel in this appeal and affirm the judgment of the Lucas County Court of Common
Pleas. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. The
clerk is ordered to serve all parties, including the defendant if he has filed a brief, 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.
8.
State v. Ringel
C.A. No. L-15-1298
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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