[Cite as State v. Carson,
2021-Ohio-209.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109592
v. :
D’ERISE MARCEL CARSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: January 28, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-635174-A
Appearances:
Scott J. Friedman, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, D’Erise Marcel Carson, filed a delayed notice of
appeal of his convictions and sentence following his guilty plea. After reviewing the
record, Carson’s appointed counsel filed a brief pursuant to Anders v. California,
386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), seeking leave to withdraw as
counsel. Following our independent review, we grant counsel’s motion to withdraw
and dismiss the appeal.
I. Procedural Background
In Cuyahoga C.P. No. CR-18-635174-A, Carson was named in a five-
count indictment charging him with theft, and two counts each of aggravated
robbery and having weapons while under disability. The aggravated robbery counts
contained one- and three-year firearm specifications. Carson pleaded guilty to one
count of aggravated robbery with a three-year firearm specification. The remaining
offenses were dismissed. As part of his plea, he agreed to pay $680 in restitution.
In Cuyahoga C.P. No. CR-18-626156-B, a six-count indictment charged
Carson with trafficking, which contained firearm and schoolyard specifications;
drug possession, with a firearm specification; having weapons while under
disability; carrying a concealed weapon; improper handling firearms in a motor
vehicle; and possessing criminal tools. All counts contained forfeiture
specifications. Carson pleaded guilty to trafficking, including the schoolyard and
forfeiture specifications, and having weapons while under disability, including the
forfeiture specification.
In 2019, the court sentenced Carson in both cases to a total of seven
years in prison — concurrent 18 months on each count in Case No. 626156-B to run
concurrently with a seven-year sentence in Case No. 635174-A.
II. Anders Review
Carson has only appealed his convictions and sentence in Case No.
635174-A; he has not appealed his convictions in Case No. 626156-B. Based on the
belief that no prejudicial error occurred in the trial court and that any grounds for
appeal would be frivolous, Carson’s counsel filed a motion to withdraw pursuant to
Anders. This court entered a judgment entry granting Carson approximately 45
days to file a supplemental pro se brief raising any additional assignments of error.
That time has expired, and no supplemental brief has been filed.
Anders outlined a procedure for counsel to follow to withdraw due to
the lack of any meritorious grounds for appeal. In Anders, the United States
Supreme Court held that if counsel thoroughly studies the case and conscientiously
concludes that an appeal is frivolous, he may advise the court of that fact and request
permission to withdraw from the case. Anders, 386 U.S. at 744,
87 S.Ct. 1396,
18
L.Ed.2d 493. Counsel’s request to withdraw must “be accompanied by a brief
referring to anything in the record that might arguably support the appeal.”
Id.
Counsel must also furnish a copy of the brief to his client, and the court must allow
time for the appellant to file his own pro se brief.
Id.
When these requirements have been satisfied, the appellate court must
complete an independent examination of the trial court proceedings to determine
whether the appeal is “wholly frivolous.” Id. If the court, in its independent review,
determines that a possible issue exists, it must discharge current counsel and
appoint new counsel to prosecute the appeal.
Id. If, however, the court determines
that the appeal is wholly frivolous, the appellate court will grant the motion to
withdraw and dismiss the appeal.
Id.
This panel recognizes there have been criticisms of the Anders
approach by some judges of this court. See, e.g., State Ruffin, 8th Dist. Cuyahoga
Nos. 109134 and 109135, 2020-Ohio-5085 (S. Gallagher, J., dissenting); State v.
Sims,
2019-Ohio-4975,
149 N.E.3d 1143 (8th Dist.) (Boyle, J., dissenting) (both
would find that the Eighth District should eliminate the Anders procedure).
Additionally, other districts have declined to accept Anders briefs, noting that the
procedure outlined in Anders is a constitutional safeguard but not a constitutional
requirement. See, e.g., State v. Wilson,
2017-Ohio-5772,
83 N.E.3d 942 (4th Dist.);
State v. Wenner,
2018-Ohio-2590,
114 N.E.3d 800 (6th Dist.); State v. Cruz-Ramos,
2018-Ohio-1583,
125 N.E.3d 193 (7th Dist.). Despite these criticisms, this court
continues to adhere to the procedures announced in Anders. See State v. Taylor,
8th Dist. Cuyahoga No. 101368,
2015-Ohio-420; State v. Williams, 8th Dist.
Cuyahoga No. 109847,
2019-Ohio-3766; State v. J.L., 8th Dist. Cuyahoga No.
109626,
2020-Ohio-5254.
In this case, therefore, we must consider whether to grant counsel’s
request to withdraw because any appeal would be wholly frivolous. Although
Carson’s counsel asserts that an appeal in this case is wholly frivolous, he presents
two potential errors: (1) whether Carson was competent to enter a knowing,
intelligent, and voluntary guilty plea; and (2) whether the court erred in ordering
Carson to pay restitution without considering his ability to pay.
Crim.R. 11
Counsel raises as a potential error that Carson was not competent to
enter a knowing, intelligent, and voluntary guilty plea because he was taking
medications for schizoaffective disorder. We have conducted an independent
examination of the record and agree with counsel that the record reflects that Carson
was competent and that he entered a knowing, intelligent, and voluntary guilty plea.
A defendant’s guilty plea must be made knowingly, intelligently, and
voluntarily, and “[f]ailure on any of those points renders enforcement of the plea
unconstitutional under both the United States Constitution and the Ohio
Constitution.” State v. Engle, 74 Ohio St.3d 525, 527,
660 N.E.2d 450 (1996). To
ensure that a plea is entered knowingly, intelligently, and voluntarily, Crim.R. 11(C)
requires the trial judge to determine whether the criminal defendant is fully
informed of his rights, both constitutional and nonconstitutional. The court must
also confirm that the defendant understands the consequences of his plea before
accepting a guilty plea.
Id.
During the plea, Carson informed the court that he was taking
medication for schizoaffective disorder. It is well established, however, that a
defendant does not lack mental capacity to enter a plea, or that a trial court does not
err in accepting a plea, merely because a defendant was suffering from a mental
illness or was taking psychotropic medication when he entered the plea. See, e.g.,
State v. McClendon, 8th Dist. Cuyahoga No. 103202, 2016-Ohio-2630, ¶ 16; State
v. Robinson, 8th Dist. Cuyahoga No. 89136,
2007-Ohio-6831, ¶ 18; see also State v.
Ketterer,
111 Ohio St.3d 70,
2006-Ohio-5283,
855 N.E.2d 48, ¶ 71 (the fact that a
defendant is taking psychotropic drugs does not negate a defendant’s competence
to stand trial).
In this case, there is nothing in the record to suggest that there was a
concern that Carson was incapable of understanding the proceedings, the nature of
the offenses, the rights he would waive by pleading guilty, and the penalties
associated with the offenses. His counsel stated that Carson underwent a prior
psychological evaluation that revealed that Carson suffered from depressive
disorder, not a psychosis disorder. (Tr. 9.) Nevertheless, Carson stated at the plea
hearing that he felt “clearheaded” and did not have any trouble understanding the
nature of the proceedings. (Tr. at id.) At sentencing, counsel assured the court that
Carson was competent and assisted in his defense throughout the case. (Tr. 24.)
Our review of the record reveals that that the trial court complied with
the dictates of Crim.R. 11(C) before accepting Carson’s plea. The trial court advised
him of the constitutional rights he would waive by pleading guilty, and Carson
acknowledged that he understood those rights. The trial court also advised Carson
of the penalties he could face by pleading guilty, which included a discussion that
Carson would pay the victim restitution. He acknowledged that he understood the
consequences of his plea. The trial court also established that Carson was satisfied
with his attorney and that all parties were satisfied that the court complied with
Crim.R. 11. Accordingly, we agree with counsel that Carson was competent to enter
a guilty plea, which he made knowingly, intelligently, and voluntarily.
Restitution
Counsel also raises as a potential error that the trial court erred in
imposing restitution without considering Carson’s ability to pay. The record reflects
that Carson expressly agreed to pay $680 in restitution to the victim as part of his
plea agreement. See tr. 11. When payment of restitution to the victim is part and
parcel of a plea agreement, there is no reversible error in imposing a financial
sanction, without first determining the defendant’s ability to pay. State v. McElroy,
8th Dist. Cuyahoga Nos. 104639, 104640, and 104641, 2017-Ohio-1049; ¶ 53; State
v. St. Martin, 8th Dist. Cuyahoga No. 96834,
2012-Ohio-1633, ¶ 8 (the stipulation
and agreement to pay restitution is sufficient to support the trial court’s order and
precludes the defendant from complaining about it on appeal). Accordingly, Carson
would be precluded from raising on appeal any argument regarding restitution.
III. Conclusion
The record reflects that the trial court complied with Crim.R. 11 when
it accepted Carson’s guilty plea and there is nothing in the record to suggest that
Carson did not enter a knowing, intelligent, and voluntary plea. Accordingly, we
agree with counsel that any error raised on appeal suggesting otherwise would be
wholly frivolous. We also agree with counsel that any error raised challenging
restitution would be wholly frivolous because Carson agreed as part of the plea deal
to pay the victim restitution. Accordingly, pursuant to Anders, counsel’s request to
withdraw is granted and the appeal is dismissed.
Dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
LISA B. FORBES, J., and
EILEEN T. GALLAGHER, J., CONCUR
