[Cite as State v. Merrick,
2020-Ohio-5209.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-52
:
v. : Trial Court Case No. 2018-CR-691
:
BRET MERRICK : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 6th day of November, 2020.
...........
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road,
Fairborn, Ohio 45324
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
-2-
{¶ 1} Appellant Bret Merrick was convicted in the Greene County Court of
Common Pleas of two counts of involuntary manslaughter, with one firearm specification.
His appointed counsel has filed a brief under the authority of Anders v. California, 386
U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), indicating he could not find any
potentially meritorious appellate issues. Thereafter, Merrick filed a pro se brief.
Following an independent review of the record, we agree with counsel’s assessment. As
such, the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} This case involves the deaths of Sherri Mendenhall and William “Skip”
Brown. As a result of the circumstances surrounding these deaths, Merrick was indicted
on two counts of aggravated murder, two counts of murder, two counts of aggravated
burglary, one count of felonious assault, and one count of tampering with evidence. The
indictment included firearm specifications and aggravating circumstance specifications;
the aggravating circumstance specifications made Merrick eligible for the death penalty.
The indictment was assigned Greene C.P. No. 2017-CR-57.
{¶ 3} Ultimately, Merrick and the State of Ohio entered into a plea and sentencing
agreement which was signed by Merrick, his counsel, and two assistant Greene County
prosecutors. A bill of information was filed in conjunction with the parties’ agreement and
was assigned Greene C.P. No. 2018-CR-691. The bill of information charged Merrick
as follows: two counts of involuntary manslaughter – Count 1 regarding the death of
Brown and Count 2 regarding the death of Mendenhall. Count 1 included a three-year
firearm specification. The parties’ agreement provided that Merrick would plead guilty to
each count of involuntary manslaughter and the firearm specification. The agreement
-3-
recommended an aggregate 25-year prison term as follows: Count 1 – an 11-year prison
sentence plus a 3-year prison term on the firearm specification, to be served
consecutively to the 11-year prison term; Count 2 – an 11-year prison term to be served
consecutively to Count 1. The agreement also recommended that no fines be levied and
included a provision that Case No. 2017-CR-57 would be dismissed. Merrick appeared
before the trial court and pleaded guilty to the two counts of involuntary manslaughter and
the firearm specification. The trial court imposed the recommended 25-year prison term,
and no fines were imposed. Thereafter, Case No. 2017-CR-57 was dismissed.1
{¶ 4} This appeal followed.
Anders Standard
{¶ 5} Upon the filing of an Anders brief, an appellate court has a duty to determine,
“after a full examination of the proceedings,” whether the appeal is, in fact, “wholly
frivolous.” Anders, 386 U.S. at 744,
87 S.Ct. 1396,
18 L.Ed.2d 493; Penson v. Ohio,
488
U.S. 75, 80,
109 S.Ct. 346,
102 L.Ed.2d 300 (1988). An issue is not 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. A frivolous issue, instead, 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. If we find that any issue is not wholly frivolous, we must reject the Anders
brief and appoint new counsel to represent the defendant.
1
Dustin Merrick, Bret’s brother, was also indicted for the murders of Mendenhall and
Brown. The indictment also made Dustin death penalty eligible. Dustin pleaded guilty
to two counts of aggravated murder and was sentenced to an agreed-upon term of life
without parole plus six years. Dustin’s convictions were affirmed on appeal. State v.
Merrick, 2d Dist. Greene No. 2019-CA-29,
2020-Ohio-3744.
-4-
Analysis
{¶ 6} Counsel suggests as a potential assignment of error that the trial court’s
sentence is not authorized by law. R.C. 2953.08(D)(1) provides that “[a] sentence
imposed upon a defendant is not subject to [appellate] review … if the sentence is
authorized by law, has been recommended jointly by the defendant and the prosecution
…, and is imposed by the sentencing judge …. If all three conditions are met, the
defendant may not appeal the sentence.” State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1,
922 N.E.2d 923, ¶ 15-16. Merrick and the prosecution jointly
recommended the sentence and the trial court imposed the recommended sentence;
thus, these two conditions have been satisfied. “The ‘authorized by law’ condition is a
bit more nuanced, with a sentence being so authorized ‘only if it comports with all
mandatory sentencing provisions.’ Such mandatory provisions include the proper
imposition of postrelease control (PRC), making, when applicable, the findings required
for the imposition of consecutive sentences, and ordering the merger of allied offenses of
similar import.” State v. Smith, 2d Dist. Montgomery Nos. 28208, 28209, 28210, and
28211,
2020-Ohio-2854, ¶ 8, quoting Underwood at ¶ 20, 33.
{¶ 7} Our independent review confirms that Merrick’s sentence is authorized by
law. The involuntary manslaughter sentences were within the allowed statutory range,
and the firearm specification sentence was the required 3-year consecutive prison term.
Moreover, the trial court correctly informed Merrick of the maximum prison term and fines
he faced. 2 The trial court also correctly informed Merrick of the mandatory PRC
2
The 25-year prison term represents the maximum prison term for the offenses contained
in the bill of information. But, of course, the parties’ plea agreement eliminated the
murder indictments and, quite importantly, the possibility of the death penalty.
-5-
implications of his plea, and the judgment entry accurately reflected this discussion.
Finally, though not necessary based upon the agreed sentence, the trial court made
appropriate consecutive sentence findings, and these findings were incorporated into the
judgment entry. In short, Merrick’s sentence was authorized by law, and any appellate
argument suggesting otherwise would be wholly frivolous.
{¶ 8} Secondly, counsel suggests as a possible assignment of error that the trial
court’s PRC advisement was inadequate. As already noted, the trial court correctly
advised Merrick of the mandatory PRC implications triggered by his guilty pleas, and the
judgment entry reflects this discussion. Given this, any appellate argument asserting
otherwise would be without potential merit.
{¶ 9} Finally, counsel suggests as a potential assignment of error that the trial court
did not comply with Crim.R. 11, making Merrick’s plea less than knowing, intelligent, and
voluntary. Specifically, counsel suggests that Merrick’s understanding of the nature of
the charges to which he pleaded guilty may have been compromised because “there was
no elicitation of the facts at the … Crim.R. 11 [plea] hearing.”
{¶ 10} As discussed, a jointly recommended sentence which is imposed by the trial
court and which is authorized by law eliminates appellate review of the sentence.
Nonetheless, due process requires that the 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. Clark,
119 Ohio St.3d 239,
2008-Ohio-3748,
893 N.E.2d 462, ¶ 25. A trial court’s compliance
with Crim.R. 11 insures compliance with this constitutional mandate. State v. Cole, 2d
Dist. Montgomery No. 26122,
2015-Ohio-3793, ¶ 12.
{¶ 11} Counsel, with the noted exception, concedes the trial court’s compliance
-6-
with Crim.R. 11. Our independent review of the Crim.R. 11 plea hearing confirms this
concession.
{¶ 12} Turning then to counsel’s specific suggestion, Crim.R. 11(C)(2)(a) requires
the trial court to determine, among other things, that the defendant, before entering a
guilty plea, has an understanding of the nature of the charges to which he is pleading
guilty. But, contrary to counsel’s suggestion, the trial court’s determination of such
understanding does not require that the facts of an offense be recited at the plea hearing.
State v. Hill, 2d Dist. Clark No. 2019-CA-11, 2020-Ohio-7, ¶ 11, citing State v. Riddle,
2017-Ohio-1199,
88 N.E.3d 475, ¶ 39 (2d Dist.). “This is so because a guilty plea is a
complete admission of the facts contained in the [bill of information].”
Id. However, the
Crim.R. 11(C)(2)(a) requirement that the trial court insure the defendant’s understanding
of the charges does “prompt[ ] the State, [usually] as a matter of routine, to articulate the
factual basis supporting the plea (often in the form of a verbatim recitation of the [bill of
information]).”
Id. But, as stated, such a recitation is not required. The dispositive
inquiry is whether the defendant “subjectively understood the nature of the charge[s].”
Hill at ¶ 12. See also State v. Greathouse,
158 Ohio App.3d 135,
2004-Ohio-3402,
814
N.E.2d 502, ¶ 8 (2d Dist.).
{¶ 13} Count one of the bill of information set forth the elements of involuntary
manslaughter, stating that Merrick had “cause[d] the death of William ‘Skip’ Brown as a
proximate result of … committing or attempting to commit Aggravated Burglary ….”
The firearm specification stated that Merrick “had a firearm on or about his person or
under his control while committing the offense, and displayed the firearm, brandished the
firearm, indicated he possessed the firearm, or used it to facilitate the offense ….”
-7-
Count two stated that Merrick had “cause[d] the death of Sherri Mendenhall as a
proximate result of … committing or attempting to commit … Aggravated Burglary.”
Thus, Merrick, by pleading guilty, admitted to the facts set forth in the two counts of
involuntary manslaughter and the firearm specification. Moreover, the parties’ plea
agreement stated that Merrick “acknowledges that he has consult[ed] with his attorneys
since he was indicted regarding the charges contained in Case No. 2017-CR-57 and the
Bill of Information in Case No. 2018-CR-691, which are both related factually to the
murders of William Brown and Sherri Mendenhall, and has continued to consult with his
attorneys regarding a resolution of the deaths of William Brown and Sherri Mendenhall.”
The plea agreement also stated that the “parties contemplate that … Merrick will on the
record and in open court confirm that he did not shoot either William Brown or Sherri
Mendenhall with any firearms whatsoever.” Merrick, on the record and in open court, did
so state.3 The record supports the conclusion that Merrick subjectively understood the
nature of the two involuntary manslaughter counts and the firearm specification to which
he pleaded guilty. Any appellate argument to the contrary would be without potential
merit.
{¶ 14} We now turn to Merrick’s pro se brief. The brief asserts that the trial court
erred when it overruled a motion to suppress statements filed in Case No. 2017-CR-57,4
and it also seems to assert that appellate counsel rendered ineffective assistance of
3
This on-the-record statement was required, it would seem, to differentiate Bret Merrick’s
conduct from Dustin Merrick’s conduct.
4
As noted, Case No. 2017-CR-57 was dismissed after Merrick pleaded guilty in Case No.
2018-CR-691. This appeal is, of course, being pursued under Case No. 2018-CR-691,
and, as a consequence, the appellate record does not include anything relating to the
motion to suppress.
-8-
counsel by not raising the suppression issue on appeal. The plea agreement states that
Merrick “stipulates and agrees, with the advice of counsel, that he withdraws and waives
any potential constitutional challenge to any and all evidence obtained by the police and
prosecution.” This language is consistent with the reality that, upon pleading guilty, a
defendant “waives his ability to challenge [a] suppression ruling on appeal.” State v.
Barron, 2d Dist. Greene No. 2017-CA-46, 2018-Ohio-1221, ¶ 5, citing State v. Guerry, 2d
Dist. Clark No. 2015-CA-30,
2016-Ohio-962, ¶ 5, citing State v. Carson, 2d Dist.
Montgomery No. 20285,
2004-Ohio-5809, ¶ 8. Based upon the parties’ agreement and
the case law, any appellate argument attacking the trial court’s suppression ruling would
be wholly frivolous, and appellate counsel cannot be faulted for a failure to assert a wholly
frivolous argument.
{¶ 15} Finally, we note that we have reviewed the entire record. Our review has
not revealed any non-frivolous appellate issues.
Conclusion
{¶ 16} We have found no non-frivolous issue for appellate review. As such,
counsel is granted leave to withdraw from the case, and the judgment of the Greene
County Common Pleas Court is affirmed.
.............
FROELICH, J. and HALL, J., concur.
Copies sent to:
-9-
Marcy A. Vonderwell
David R. Miles
Bret Merrick
Hon. Michael A. Buckwalter
