[Cite as State v. Dashner,
2017-Ohio-8259.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1053
Appellee Trial Court No. CR0201602508
v.
Christopher Dashner DECISION AND JUDGMENT
Appellant Decided: October 20, 2017
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Andrew J. Lastra, Assistant Prosecuting Attorney, for appellee.
Patricia Horner, for appellant.
…
OSOWIK, J.
{¶ 1} This is an appeal brought by appellant from the judgment of the Lucas
County Court of Common Pleas. In this case, the court accepted appellant’s no contest
plea to a violation of R.C. 2903.11(A) and (D), Count 1 of the original indictment,
felonious assault, a felony of the second degree. Appellant was sentenced to serve a
period of incarceration of four years, to be served consecutively to a community control
term of ten months imposed in another case not subject to review by this court.
{¶ 2} 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, she 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.
{¶ 3} In this case, appellant’s appointed counsel has satisfied the requirements set
forth in Anders, supra. This court further notes that appellant did not file a pro se brief
on his own behalf in this appeal. Appellee, state of Ohio, has filed a responsive brief.
{¶ 4} 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 Lucas County Court of Common Pleas as well as the briefs filed
2.
by counsel. Upon this review we will determine if this appeal lacks merit and is,
therefore, wholly frivolous.
{¶ 5} Counsel refers to several possible, but ultimately indefensible, issues:
(1) appellant’s plea was not entered into willingly, knowingly or involuntarily and
(2) appellant could argue the sentence was excessive.
{¶ 6} A plea of guilty or a plea of no contest operates as a waiver of important
rights, and is valid only if done voluntarily, knowingly, and intelligently, “with sufficient
awareness of the relevant circumstances and likely consequences.” Brady v. United
States, 397 U.S. 742, 748,
25 L.Ed.2d 747,
90 S.Ct. 1463 (1970).
{¶ 7} Failure on any of those points renders enforcement of the plea unconstitutional
under both the United States Constitution and the Ohio Constitution. State v. Engle (1996),
74 Ohio St.3d 525, 527,
1996 Ohio 179,
660 N.E.2d 450.
{¶ 8} Crim.R. 11(C)(2) provides detailed instruction to trial courts on the
procedure to follow when accepting pleas. That rule states:
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
3.
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.
{¶ 9} In this case before the court, the transcript of the plea proceedings of
January 3, 2017, establishes that the court engaged in a proper colloquy with the
appellant. The court initially inquired about his educational status, whether he
understood the English language and whether he was under the influence of any
medication. The court then proceeded to explain each of the enumerated rights that he
was giving up with his plea, including the right to a jury trial, to confront witnesses
against him, to have compulsory process for obtaining witnesses in the appellant’s favor,
and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial
at which the appellant would not have been compelled to testify against himself. In each
instance, appellant responded that he understood. The court also went on to then explain
4.
to appellant the maximum sentence that was associated with his plea to the charge of the
indictment. Appellant indicated that he understood the sentence. The trial court also
properly advised appellant that he would be subject to a mandatory period of three years
of postrelease control.
{¶ 10} The transcript also reveals that the trial court advised appellant of the
consequences of being placed on community control.
{¶ 11} The plea form that was executed by appellant in the courtroom on
January 3, 2017, also advised appellant of his constitutional rights.
{¶ 12} The record shows that Crim.R. 11(C) was properly followed and appellant
made an intelligent, knowing, and voluntary acceptance of the plea agreement.
Therefore, the record establishes that appellant’s plea was knowingly, intelligently, and
voluntarily entered into by appellant. The proposed first assignment of error presented by
counsel is found not well-taken.
{¶ 13} Counsel presents a second proposed assignment of error that claims that the
trial court imposed an excessive period of incarceration when it sentenced appellant to a
period of incarceration of four years and further ordered the sentence to be served
consecutive to a community control violation in case No. CR0201502700.
{¶ 14} The record establishes that at the time of the felonious assault, appellant
was a patient in the psychiatric ward of Flower Hospital. He was also under a term of
community control in another felony, in case No. CR0201502700. The record further
establishes that appellant brutally attacked a nurse who required 13 stitches, suffered a
5.
broken nose and an orbital fracture as a direct result of appellant’s attack. The record
clearly demonstrates that the trial court considered the enumerated factors set forth in
R.C. 2929.12
{¶ 15} We also find that the trial court properly imposed consecutive sentences.
R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
6.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 16} In this case, on the record at the February 14, 2017 sentencing hearing and
in the judgment entry, the trial court found that the imposition of consecutive sentences
was necessary to protect the public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. The court also specifically
found that appellant was under postrelease control for a prior offense at the time of the
commission of the felonious assault.
{¶ 17} After a thorough review of the entire record including the pleadings,
transcripts and reports made available to the court, we find appellant’s second proposed
assignment of error not well-taken.
Conclusion
{¶ 18} We have accordingly conducted an independent examination of the record
pursuant to Anders v. California and have further considered appellant’s proposed
assignments of error. Finding this appeal to be wholly frivolous, the motion of counsel
for appellant to withdraw is granted.
7.
{¶ 19} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The clerk is
ordered to serve all parties 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.
Thomas J. Osowik, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
8.
