State v. Jones

[Cite as State v. Jones, 

.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                     Hon. Patricia A. Delaney, J.
                                                Hon. Earle E. Wise, Jr., J.
 -vsCase No. 20 CAA 09 0037
 RUSSELL JONES

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Delaware County Court
                                                of Common Pleas, Case No. 20 CRI
                                                020131


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        June 2, 2021


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 MELISSA A. SCHIFFEL                            APRIL F. CAMPBELL
 Delaware County Prosecutor                     Campbell Law, LLC
                                                46 ½ N. Sandusky Street
 ELIZABETH A. MATUNE                            Delaware, Ohio 43015
 Assistant Prosecutor
 70 N. Union Street                             RUSSELL JONES
 Delaware, Ohio 43015                           Lake Erie Correctional Institute
                                                501 Thompson Road
                                                Conneaut, Ohio 44030
Delaware County, Case No. 20 CAA 09 0037                                                  2


Hoffman, P.J.
       {¶1}   Defendant-appellant Russell Jones appeals the judgment entered by the

Delaware County Common Pleas Court convicting him of domestic violence (R.C.

2919.25(A)) upon a plea of guilty and sentencing him to fourteen months incarceration.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant was indicted by the Delaware County Grand Jury with abduction

and domestic violence.      The domestic violence charge was a fourth degree felony

because Appellant was previously convicted of domestic violence in Mount Vernon

Municipal Court.

       {¶3}   The case proceeded to a plea hearing based on a plea agreement.

Appellant was to plead guilty to the charge of domestic violence, in return for which the

State would dismiss the charge of abduction.

       {¶4}   Appellant appeared by video conference at the plea hearing due to the

Covid-19 pandemic. The trial court entered into a plea colloquy with Appellant. During

the colloquy, Appellant claimed he never laid “one finger” on the victim. The trial court

asked about the possibility of an Alford plea due to Appellant’s claim of innocence. The

State recommended the matter be set for trial.

       {¶5}   The trial court asked the State to proffer facts. The State reported Appellant

became intoxicated on the date in question and got into an argument with the victim,

during which he threatened to kill her, choked her, and smacked her across her face,

throwing her to the ground. When the trial court asked Appellant if those facts were

accurate, Appellant responded affirmatively. When asked if he was being forced to enter
Delaware County, Case No. 20 CAA 09 0037                                                   3


a plea, Appellant stated, “Well, I’ll leave it at that, Your Honor. No one’s forcing me to do

this?” Plea Tr. 18.

       {¶6}   Counsel for Appellant interjected, stating Appellant’s hesitation was a result

of the fact he was pleading guilty to domestic violence in order to avoid the larger penalty

carried by the abduction charge. The State represented it was not willing to keep the plea

agreement in place unless Appellant entered a plea of no contest or guilty.

       {¶7}   Appellant then spoke privately with counsel. When proceedings resumed

on the record, counsel for Appellant told the court the evening in question was “not one

of the great moments” of Appellant’s life, and Appellant wanted to make it clear his actions

were “nowhere as mean-spirited and severe and questionable” as the victim alleged.

Plea Tr. 21. Appellant stated he wanted to plead guilty. The court engaged in the Crim.

R. 11 colloquy. The trial court reiterated to Appellant he was pleading guilty to causing

or attempting to cause physical harm to the victim by choking and slapping her. He

agreed he was conceding to those facts. The trial court found Appellant guilty of domestic

violence based on his plea, and the State dismissed the charge of abduction.

       {¶8}   The matter was set for sentencing. At the sentencing hearing, Appellant

apologized to the court and the victim. He told the court he had been studying the law

with respect to the underlying conviction which elevated the instant conviction from a

misdemeanor to a felony, and he believed his earlier conviction could not be used as

enhancement because he entered a plea of no contest to that charge. He stated he

raised this matter to his attorney, and his attorney was “basically working against me.”

Sent. Tr. 26. The trial court imposed a fourteen month sentence for domestic violence,
Delaware County, Case No. 20 CAA 09 0037                                                      4


and imposed a sentence of twelve months for a community control violation, which is not

the subject of this appeal.

       {¶9}   Appellate counsel for Appellant has filed a Motion to Withdraw and a brief

pursuant to Anders v. California, 

 (1967), rehearing den., 

,

indicating the within appeal is wholly frivolous.

       {¶10} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant's counsel concludes the case is wholly frivolous,

then he or she should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany the request with a brief identifying anything in the record which

could arguably support the appeal. Id. Counsel also must: (1) furnish the client with a

copy of the brief and request to withdraw; and, (2) allow the client sufficient time to raise

any matters the client chooses. Id. Once the defendant's counsel satisfies these

requirements, the appellate court must fully examine the proceedings below to determine

if any arguably meritorious issues exist. If the appellate court also determines 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} Appellant’s counsel has filed a brief identifying four arguably meritorious

issues in the record: the trial court erred in accepting Appellant’s plea, the trial court erred

in sentencing, trial counsel was ineffective, and the trial court erred in allowing Appellant

to appear by videoconference.

       {¶12} Appellant has filed a pro se brief, arguing the trial court erred in accepting

his plea, the trial court did not inform him of his right to be present in the courtroom for
Delaware County, Case No. 20 CAA 09 0037                                                5


sentencing, the judge falsified a judgment entry of his prison sentence, trial counsel was

ineffective, and appellate counsel should not have filed an Anders brief.

         {¶13} We find Appellant's counsel has followed the procedures required by

Anders.

         {¶14} After independently reviewing the record and considering the issues raised

in the brief filed by Appellate counsel and those raised by Appellant’s pro se brief, we

agree with Counsel's conclusion no arguably meritorious claims exist upon which to base

an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's

request to withdraw, and affirm the judgment of the Delaware County Court of Common

Pleas.



By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur