State v. Harris

[Cite as State v. Harris, 

.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. W. Scott Gwin, P.J.
         Plaintiff-Appellee                     Hon. William B. Hoffman, J.
                                                Hon. Craig R. Baldwin, J.
 -vsCase No. CT2024-0058
 DONALD HARRIS

          Defendant-Appellant                   OPINION




 CHARACTER OF PROCEEDINGS:                      Appeal from the Muskingum County Court
                                                of Common Pleas, Case No. CR2023-
                                                0825


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        November 14, 2024


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 RON WELCH                                      APRIL F. CAMPBELL
 Muskingum County Prosecutor                    Campbell Law, LLC
                                                545 Metro Place, South, Suite 100
 JOSEPH PALMER                                  Dublin, Ohio 43017
 Assistant Prosecutor
 27 North 5th Street, Suite 201
 Zanesville, Ohio 43701
Muskingum County, Case No. CT2024-0058                                                        2


Hoffman, J.
        {¶1}    Defendant-appellant Donald Harris appeals the judgment entered by the

Muskingum County Common Pleas Court convicting him upon his pleas of guilty to two

counts of gross sexual imposition (R.C. 2907.05(A)(4)), and sentencing him to an

aggregate term of incarceration of eight years. Plaintiff-appellee is the State of Ohio.

                                        STATEMENT OF THE CASE1

        {¶2}    Appellant was indicted by the Muskingum County Grand Jury with fifteen

counts of gross sexual imposition involving two separate victims. The indictment alleged

the offenses as to one victim occurred between 2008 and 2010, and the offenses related

to the other victim occurred between 2010 and 2013.

        {¶3}    Pursuant to a negotiated plea agreement, Appellant pled guilty to two

counts of the indictment, one count as to each of the victims, and the State dismissed the

remaining charges. The parties agreed to jointly recommend a sentence of 48 months

incarceration on each count, to be served consecutively for an aggregate term of

incarceration of eight years. It is from the April 15, 2024 judgment of the trial court

Appellant prosecutes his appeal.

        {¶4}    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. 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



1 A rendition of the facts is unnecessary to our resolution of the issues raised on appeal.
Muskingum County, Case No. CT2024-0058                                                    3


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.

       {¶5}   We find counsel has complied with Anders. Appellant has not filed a pro se

brief, and the State has not filed a response brief. Counsel sets forth one assignment of

error which could arguably support the appeal:



              THE    TRIAL     COURT      ERRED      IN   AMENDING         HARRIS’S

       INDICTMENT, ERRED IN ACCEPTING HARRIS’S GUILTY PLEAS

       UNDER CRIM. R. 11, AND ERRED IN SENTENCING HARRIS.



                                  Amendment of Indictment

       {¶6}   At the plea hearing, the trial court allowed the State to amend the indictment

to remove the full names of the victims, and substitute the victims’ initials. Appellant had

no objection to the amendment. Plea Tr. 13.

       {¶7}   Crim. R. 7(D) allows errors of omission to be corrected during the course of

or even after the trial, as long as such amendment makes no change in the name or

identity of the crime charged. In the instant case, the amendment did not change the
Muskingum County, Case No. CT2024-0058                                                   4


name or identify of the crime charged, but merely changed the identification of the victims

from their full names to initials. We find no error in the amendment of the indictment. See

State v. Bennett, 

 (5th Dist.) (change of name of store as victim in

indictment did not change nature or identify of offense).

                                         Plea Hearing

       {¶8}   Counsel concedes the trial court engaged in a complete plea colloquy as

required by Crim. R. 11. Upon review of the plea hearing, we find no error in the trial

court’s acceptance of Appellant’s guilty pleas.

                                          Sentencing

       {¶9}   In the instant case, the sentence was jointly recommended.              R.C.

2953.08(D)(1), which governs appellate review of sentencing, states, “A sentence

imposed upon a defendant is not subject to review under this section if the sentence is

authorized by law, has been recommended jointly by the defendant and the prosecution

in the case, and is imposed by a sentencing judge.” The sentence in the instant case

was authorized by law. The sentence fell within the statutory range. The trial court is not

required to make the requisite findings to impose consecutive sentences set forth in R.C.

2929.14(C)(4) when the sentence is jointly recommended. State v. Sergent, 2016-Ohio-

2696, ¶ 43. Post-release control was properly imposed, and the trial court considered the

sentencing factors set forth in R.C. 2929.11 and R.C. 2929.12. Finally, the offenses are

not allied offenses of similar import because they involve two separate victims and two

distinct time periods. See State v. Ruff, 

. In addition, as part of the plea

agreement, the parties stipulated the offenses did not merge. We find no error in the

sentence imposed by the trial court.
Muskingum County, Case No. CT2024-0058                                             5


      {¶10} After independently reviewing the record, 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 Fairfield County Court of Common Pleas.



By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur