[Cite as State v. Smith,
2024-Ohio-3369.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2024-A-0009
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
RYAN THOMAS SMITH,
Trial Court No. 2022 CR 00579
Defendant-Appellant.
OPINION
Decided: September 3, 2024
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, 25 West Jefferson Street, Jefferson,
OH 44047 (For Plaintiff-Appellee).
Sean P. Martin, 113 North Chestnut Street, Suite A, Jefferson, OH 44047 (For
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Ryan Smith (“Appellant”) appeals his convictions after pleading guilty.
Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and a Motion to Withdraw. In the appellate brief, counsel asserts there are no meritorious
issues for appeal. After considering the record, pursuant to Anders, we agree with
counsel, affirm the trial court's judgments, and grant counsel's motion to withdraw.
{¶2} On December 5, 2022, the Ashtabula County Grand Jury indicted Appellant
on four counts: (1) and (2) Gross Sexual Imposition, fourth-degree felonies in violation of
R.C. 2907.05(A)(1); (3) Rape, a first-degree felony in violation of R.C. 2907.02(A)(2); and
(4) Gross Sexual Imposition, a third-degree felony in violation of R.C. 2907.05(A)(4).
{¶3} Appellant entered a plea agreement in which he agreed to plead guilty to
counts three and four. The State agreed to dismiss counts one and two.
{¶4} On September 28, 2023, the court held a hearing to determine whether or
not to accept Appellant’s guilty plea. The court found that Appellant entered his plea
knowingly, intelligently, and voluntarily, and accepted his guilty plea.
{¶5} On October 10, 2023, Appellant moved to withdraw his guilty plea. In his
motion, Appellant wrote two sentences explaining why he wished to withdraw his plea.
He asserted: “Defendant proclaims his innocence and has expressed a desire to have a
bench trial in this matter. Defendant also would like to obtain counsel other than the
Ashtabula County Public Defender’s Office.”
{¶6} On November 9, 2023, the court held a hearing on Appellant’s motion.1 On
November 15, 2023, the court denied Appellant’s motion, finding “no just reason” to permit
him to withdraw his plea.
{¶7} On January 3, 2024, the court held a sentencing hearing. The court noted
that it was “in receipt of a correspondence from the Defendant dated December 13,
[2023].” The court said the “issues that [were] raised in that correspondence were all the
subject of the Defendant’s motion to withdraw his guilty plea.” The court explained that it
denied Appellant’s motion to withdraw his guilty plea because Appellant’s claims
regarding his attorneys’ representation was unsubstantiated from the record. Specifically,
1. A transcript for the hearing on Appellant’s motion to withdraw his plea has not been provided on
appeal.
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the court noted that two attorneys were assigned to represent him, they “pursued the
matter as diligently as possible”, they hired an investigator on Appellant’s behalf, and they
consulted with an expert witness.
{¶8} Before sentencing Appellant, the court asked him if he would like to make
a statement on his behalf. Appellant replied that he did and spoke at length expressing
remorse for his actions.
{¶9} The court sentenced Appellant to an indefinite sentence of ten to fifteen
years imprisonment on count three, and thirty-six months on count four, to be served
consecutively.
{¶10} Appellant timely appealed. Counsel filed Appellant's appellate brief
pursuant to Anders v. California, 386 U.S. 738. Counsel represented that he had
reviewed the record, found no meritorious issues upon which to base an appeal, and
moved to withdraw.
{¶11} In Anders, the United States Supreme Court outlined the proper steps to
follow in this situation: “if counsel finds his client's case to be wholly frivolous, counsel
should advise the court and request permission to withdraw; . . . the request to withdraw
must be accompanied by a brief referring to anything in the record that might arguably
support the appeal; . . . counsel should furnish the indigent client with a copy of counsel's
brief, and time must be allowed for the client to raise any points [s]he chooses.” State v.
Spears, 2014-Ohio-2695, ¶ 5 (11th Dist.), citing
Anders at 744. The appellate court must
conduct “a full examination of all the proceedings, to decide whether the case is wholly
frivolous.”
Anders at 744.
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{¶12} This court granted Appellant 30 days in which to file his own submission to
raise any arguments in support of the appeal. This court held counsel's request to
withdraw in abeyance.
{¶13} Appellate counsel raises three potential assignments of error for review.
Appellant has filed a brief in support of his appeal raising his own independent
assignments of error.
{¶14} Counsel’s first assignment of error: “Did the Trial Court abuse its discretion
when it imposed consecutive sentences upon the Appellant?”
{¶15} R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce,
or otherwise modify consecutive sentences only if the record does not “clearly and
convincingly” support the trial court's R.C. 2929.14(C)(4) consecutive-sentence findings.
{¶16} There are three ways an appellant can challenge consecutive sentences on
appeal. State v. Lewis, 2002-Ohio-3373, ¶ 6 (11th Dist.). First, the appellant may argue
that the sentencing court failed to state the findings for consecutive sentences that R.C.
2929.14(C)(4) requires. State v. Torres,
2003-Ohio-1878, ¶ 18 (11th Dist.); R.C.
2953.08(G)(1). Second, the appellant may argue that the record clearly and convincingly
does not support the findings the sentencing court made to justify consecutive sentences.
State v. Lewis, at ¶ 7; R.C. 2953.08(G)(2)(a). Third, the appellant may argue that his
sentence is clearly and convincingly otherwise contrary to law. R.C. 2953.08(G)(2)(b).
{¶17} 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
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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 postrelease 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.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶18} In making its findings for consecutive sentences, the sentencing court is
required to engage in the analysis for consecutive sentencing and specify the statutory
criteria warranting its decision. State v. Bonnell, 2014-Ohio-3177, at ¶ 26. While the
sentencing court is not required to state exact reasons supporting its findings, the record
must contain a clear basis upon which a reviewing court can determine that the
sentencing court’s findings for imposing consecutive sentences are supported by the
record. Id. at ¶ 27-28.
{¶19} Here, the court made the findings pursuant to R.C. 2929.14(C)(4)(b) at the
sentencing hearing and on the entry of sentence.
{¶20} The record clearly and convincingly supports the court’s findings justifying
imposing consecutive sentences. The victim impact statements, which detail the
emotional impact the crimes had on the victims, support that consecutive sentences were
necessary to punish Appellant. Consecutive sentences are not disproportionate to the
seriousness of Appellant’s conduct and to the danger he poses to the public after having
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committed Rape and Gross Sexual Imposition. Lastly, the record supports that the
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.
{¶21} Having independently reviewed the record, we find that the trial court did
not err in imposing consecutive sentences.
{¶22} Counsel’s second assignment of error and Appellant’s first assignment of
error: “Did the Trial Court abuse its discretion by denying the Appellant the opportunity to
withdraw his plea prior to sentencing?”
{¶23} “The decision to grant or deny a presentence motion to withdraw a guilty
plea is within the sound discretion of the trial court.” State v. Xie, 62 Ohio St.3d 521,
(1992), paragraph two of the syllabus; State v. Bisson,
2013-Ohio-2141, ¶ 23, (11th Dist.)
(“since the determination of a motion to withdraw lies within the trial court's sound
discretion, the scope of our appellate review is limited to an ‘abuse-of-discretion’
analysis”).
{¶24} “‘The term “abuse of discretion” is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the record.’” State v. Underwood,
2009-Ohio-2089, ¶ 30 (11th Dist.). Stated differently, an abuse of discretion is “the trial
court's ‘failure to exercise sound, reasonable, and legal decision-making.’ State v.
Beechler,
2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black's Law Dictionary 11 (8th
Ed.Rev.2004).” State v. Raia,
2014-Ohio-2707, ¶ 9 (11th Dist.). “When an appellate
court is reviewing a pure issue of law, ‘the mere fact that the reviewing court would decide
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the issue differently is enough to find error[.] . . . By contrast, where the issue on review
has been confined to the discretion of the trial court, the mere fact that the reviewing court
would have reached a different result is not enough, without more, to find error.’” Id.,
quoting
Beechler at ¶ 67. When applying the abuse of discretion standard, a reviewing
court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med.
Bd.,
66 Ohio St.3d 619, 621(1993).
{¶25} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct a manifest injustice
the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her guilty plea.”
{¶26} A presentence motion to withdraw a plea should be granted liberally. Xie,
62 Ohio St.3d at 527. The Supreme Court has also recognized, however, that “[a]
defendant does not have an absolute right to withdraw a guilty plea prior to sentencing,”
but, instead, “[a] trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of the plea.”
Id. at paragraph one of
the syllabus.
{¶27} In evaluating whether a trial court properly exercised its discretion in ruling
on a presentence motion to withdraw a guilty plea, this court applies the four-factor test
pronounced in State v. Peterseim, 68 Ohio App.2d 211 (8th Dist.1980). State v. Parham,
2012-Ohio-2833, ¶ 19 (11th Dist.); State v. Humr,
2010-Ohio-5057, ¶ 15 (11th Dist.).
Under Peterseim, a trial court does not abuse its discretion in denying a motion to
withdraw a plea: “(1) where the accused is represented by highly competent counsel, (2)
where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered
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the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete
and impartial hearing on the motion, and (4) where the record reveals that the court gave
full and fair consideration to the plea withdrawal request.” Id.
{¶28} “A mere change of heart regarding a guilty plea is an insufficient justification
for the withdrawal of the guilty plea.” State v. Clifton, 2022-Ohio-3814, ¶ 64 (8th Dist.).
{¶29} We first note that we do not have a transcript of the hearing on Appellant’s
motion to withdraw his guilty plea.
{¶30} “When portions of the transcript necessary for resolution of assigned errors
are omitted from the record, the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower
court's proceedings and affirm.” Knapp v. Edwards Lab'ys, 61 Ohio St. 2d 197, 199,
(1980).
{¶31} The presumption is that the results of those proceedings are correct and
binding. See Holman v. Wiser, 2023-Ohio-4095, ¶ 49 (11th Dist.). That presumption is
rebuttable. See Acheson Hotels, LLC v. Laufer,
601 U.S. 1, 28 (2023) (Jackson, J.
concurring). The record that is submitted on appeal, whatever it might contain, may be
used to rebut the presumption.
{¶32} Appellate courts can also evaluate the legal conclusions reached by a trial
court based upon the trial court's factual findings even absent a transcript. Fifth Third
Mtge. Co. v. Berman, 2019-Ohio-1068, ¶ 16 (10th Dist.).
{¶33} What we can discern from the record is that Appellant was represented by
highly competent counsel. At the sentencing hearing, the court explained that Appellant
had been represented by counsel, whom “pursued the matter as diligently as possible.”
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Appellant has not demonstrated otherwise, and there is nothing in this record to suggest
otherwise.
{¶34} The record also shows that Appellant was afforded a full hearing on his
motion.
{¶35} Regarding the third and fourth Peterseim factors, we must presume the
validity of the lower court proceedings. Appellant has not rebutted our presumption that
the results of those proceedings were correct and binding.
{¶36} Counsel’s second assignment, and Appellant’s first assignment, are without
merit.
{¶37} Counsel‘s third assignment of error: “Did the trial court commit error by
imposing indefinite sentences?”
{¶38} The Reagan Tokes Law, as provided under R.C. 2967.271, allows courts to
impose an indefinite sentence for offenders convicted of first- or second-degree felonies
when a life sentence is not an option. Appellant, having been convicted of a first-degree
felony, was properly sentenced under the Reagan Tokes Law.
{¶39} This court, and the Ohio Supreme Court, have consistently upheld the
constitutionality of the Reagan Tokes Law. State v. Hacker, 2023-Ohio-2535, ¶ 41.
{¶40} Counsel’s third assignment of error is without merit.
{¶41} Appellant’s second assignment of error: “Did the trial court commit and error
[sic] by imposing a near maximum sentence on a 1st time offender.”
{¶42} Appellant argues that his sentence is contrary to law because, he alleges,
the court did not consider that he was a first-time offender with no prior criminal history
and that he has a low recidivism score (as provided under his pre-sentence investigation).
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{¶43} “A trial court is not required to give any particular weight or emphasis to a
given set of circumstances; it is merely required to consider the statutory factors in
exercising its discretion.” State v. Delmanzo, 2008-Ohio-5856, ¶ 23 (11th Dist.). “Nothing
in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in
the record and substitute its judgment for that of the trial court concerning the sentence
that best reflects compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 2020-Ohio-
6729, ¶ 42. A sentencing court fulfills its duty when it states that it has considered the
factors under R.C. 2929.11 and 2929.12. State v. DeLuca,
2021-Ohio-1007, ¶ 18 (11th
Dist.).
{¶44} Under Jones, this court is without authority to independently weigh
mitigating factors or to second guess the trial court's weighing of those factors. Jones at
¶ 42. The sentencing court fulfilled its duty by providing in its judgment entry that it
considered all factors under R.C. 2929.11 and 2929.12.
{¶45} Appellant also argues that his trial counsel rendered ineffective assistance
when it failed to object to a statement made at sentencing by the victim’s mother. That
statement was that Appellant “claims he was sexually abused by his high school band
director.”
{¶46} “‘In evaluating ineffective assistance of counsel claims, Ohio appellate
courts apply the two-part test enunciated by the United States Supreme Court in
Strickland v. Washington (1984), 466 U.S. 668].” State v. Woodard,
2010-Ohio-2949, ¶
11 (11th Dist.). “First, it must be determined that counsel's performance fell below an
objective standard of reasonableness.”
Id. “Second, it must be shown that prejudice
resulted.”
Id. “Prejudice exists when ‘the result of the trial would have been different’ but
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for counsel's ineffectiveness.’” Id., quoting State v. Bradley,
42 Ohio St.3d 136 (1989) at
paragraph 3 of the syllabus.
{¶47} In applying the foregoing standard, a reviewing court indulges a strong
presumption that counsel's conduct is within the wide range of reasonable professional
representation. Strickland at 689. An attorney's arguably reasoned strategic or tactical
decisions do not generally constitute ineffectiveness. State v. Phillips,
74 Ohio St.3d 72,
85 (1995).
{¶48} Here, Appellant asserts that counsel’s failure to object to the statement
“prejudiced the consideration of my past abuse as a mitigating factor.” Yet, the record
does not reflect that the statement affected his sentencing. In other words, there is
nothing in this record to demonstrate that if trial counsel had objected to the statement,
the result of his sentencing would have been different.
{¶49} Lastly, Appellant argues that trial counsel did not present mitigating
arguments on his behalf at sentencing. But, there is nothing requiring trial counsel to
make mitigating arguments. Moreover, Appellant spoke at length in mitigation of his
sentence.
{¶50} Appellant’s second assignment of error is without merit.
{¶51} We have independently reviewed the record pursuant to Anders. After a
thorough review, we find no arguable issues necessitating the appointment of new
counsel.
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{¶52} Counsel's Motion to Withdraw as counsel of record for Appellant is granted
and the judgment of the Ashtabula County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
ROBERT J. PATTON, J.,
concur.
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