State v. Corbo

[Cite as State v. Corbo, 

.]

                                   COURT OF APPEALS OF OHIO

                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


STATE OF OHIO,                                  :

                 Plaintiff- Appellee,           :
                                                           No. 113756
        v.                                      :

JOHN A. CORBO,                                  :

                 Defendant-Appellant.           :

                 _______________________________________

                                    JOURNAL ENTRY AND OPINION

                 JUDGMENT: DISMISSED
                 RELEASED AND JOURNALIZED: November 21, 2024


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-23-685936-A


                                            Appearances:

                 Charles Ruiz-Bueno Co., LPA, and J. Charles Ruiz-Bueno,
                 for appellant.


MICHELLE J. SHEEHAN, P.J.:

                 John A. Corbo appeals his conviction for sexual battery after he

entered into a plea agreement with the State of Ohio. Corbo’s appellate counsel filed

a brief pursuant to Anders v. California, 

 (1967) seeking leave to
withdraw. Because we find no meritorious or nonfrivolous claim exists, we grant

counsel’s motion to withdraw and dismiss this appeal.

             RELEVANT FACTS AND PROCEDURAL HISTORY

               On October 19, 2023, Corbo was indicted for two counts of rape,

felonies of the first degree; one count of kidnapping, a felony of the first degree; and

one count of gross sexual imposition, a felony of the fourth degree. On November 7,

2023, Corbo’s counsel requested a psychiatric review to determine his competency

to stand trial. The report found Corbo competent to stand trial. On December 18,

2023, both parties stipulated to the report. The trial court then found Corbo

competent to stand trial.

               On January 29, 2024, Corbo entered into a plea agreement pleading

guilty to one count of sexual battery, a felony of the third degree, with all other

counts of the indictment being dismissed. At the plea hearing, the trial court

personally addressed Corbo, asked Corbo whether he and his attorney discussed

defense strategies, and explained the constitutional and statutory rights he would be

waiving by entering into the plea agreement. The trial court determined that Corbo

understood the charges against him and the potential penalties he faced, including

the fact he would be found to be a sexual offender subject to registration. After

accepting Corbo’s plea, the trial court ordered that the court psychiatric clinic

prepare a mitigation report. It also ordered that a presentence-investigation report

be prepared.
             On March 4, 2024, the trial court conducted a sentencing hearing.

Prior to imposing sentence, the trial court noted Corbo tested positive for the use of

marijuana and fentanyl on the day he entered his plea. Corbo denied use of fentanyl,

but admitted to marijuana use. Because of the positive test results, the trial court

vacated Corbo’s plea and conducted a second plea hearing.             The trial court

personally addressed Corbo and explained the constitutional rights he would be

waiving by entering a guilty plea, the charges against him, and the potential

penalties. It informed him he would be found to be a sexual offender subject to

registration. Corbo stated he understood his rights and the penalties he faced and

had no questions of the trial court and again pled guilty to one count of sexual

battery. The trial court accepted Corbo’s plea.

             Prior to imposing sentence, the victim of the sexual battery addressed

the court and related the facts of the crime, telling the court that she was in bed and

Corbo assaulted her. She indicated she suffered immediate physical trauma after

the assault. She related further emotional problems, stating that she is fearful and

constantly looking over her shoulder since the assault and now has fear of places she

once felt safe in. She told the trial court that Corbo had a criminal history, that he

had assaulted a teenage girl in the past, and that Corbo’s family enabled his drug

use. The State informed the trial court that Corbo had violated the conditions of his

bond by removing his GPS monitor on more than one occasion and that he was the

subject of a police report in which a woman alleged an assault. The State asked that

the maximum sentence be imposed.
             Corbo’s trial counsel addressed the trial court and indicated that Corbo

took responsibility for his actions and asked the court to not consider any uncharged

allegations when imposing sentence. Trial counsel noted that Corbo had a history

of mental-health issues and was receiving treatment.          Corbo read a written

statement, apologized to the victim, and informed the court he was taking

responsibility for his actions.

             The trial court stated it considered the relevant sentencing statutes and

reviewed the probation reports, presentence-investigation report, and a mitigation

report prepared by the court psychiatric clinic.    The trial court noted that even

though Corbo showed some remorse at the sentencing hearing, statements by Corbo

in the mitigation report and presentence report did not show he had a full

appreciation for the harm he caused the victim. The trial court detailed Corbo’s

criminal history, which included disorderly conduct, willful and wanton disregard

of safety (amended from an operating under the influence charge), disorderly

conduct, possession of narcotic equipment, possession of marijuana and drug

paraphernalia, and attempted aggravated assault, a felony of the fifth degree. The

trial court imposed a sentence of 48 months in prison, ordered Corbo serve a

mandatory term of five years of postrelease control, and found him to be a Tier III

sexual offender.
                             LAW AND ARGUMENT

                Proceedings Pursuant to Anders v. California

             Anders, 

, allows appellate counsel to file a motion to

withdraw if there exist no meritorious grounds for an appeal.1 Before seeking leave

to withdraw, counsel must conscientiously examine the entire record. If counsel

believes the appeal is “wholly frivolous,” counsel must advise the court of their

findings, or lack thereof, and refer to anything in the record that “might arguably

support the appeal.” State v. Smith, 

 (8th Dist.), citing 

. Counsel must also furnish a copy of his or her brief to the appellant to allow

sufficient time for the appellant to file his or her own brief pro se. Sims, 2019-Ohio-

4975, ¶ 7 (8th Dist.).

              Once appellate counsel has filed a motion to withdraw and

accompanying brief, this court must fully examine the proceedings from the trial

court to determine if any meritorious claims exist. Id. at ¶ 8. “‘An issue lacks

arguable merit, if, on the facts and law involved, no responsible contention can be

made that it offers a basis for reversal.’” State v. Walton, 

 (8th




1 We acknowledge that    other district courts of appeals no longer accept motions to
withdraw pursuant to Anders. State v. Holbert, 

 (2d Dist.), State v.
Wenner, 

 (6th Dist.); State v. Cruz-Ramos, 

 (7th Dist.)
However, this court continues to “adhere to the procedures outlined in Anders pertaining
to both counsel and the court when appointed appellate counsel files a motion to
withdraw because an appeal would be wholly frivolous.” State v. Sims, 

 (8th Dist.); State v. Crawford, 

 (8th Dist.) (recognizing
criticism of Anders proceedings.)
Dist.), quoting State v. Marbury, 

, ¶ 8 (2d Dist.). If no meritorious

claims exist, we may determine an appeal would be frivolous. 

. A

frivolous appeal is one that asserts issues lacking in arguable merit. 

.

                     Appellate Counsel’s Motion to Withdraw

               Corbo’s appellate counsel reviewed the proceedings and filed a

motion to withdraw pursuant to Anders. Within his motion, appellate counsel states

that he reviewed the record and found that the plea was done in accordance with the

law and the sentence was not contrary to law. Counsel considered whether Corbo

received ineffective assistance of counsel, but noted the record reflected trial counsel

discussed strategy with Corbo and was able to negotiate a plea agreement with

favorable terms. Counsel stated that he met with Corbo and informed him he could

not find any appellate issues. Counsel also stated that Corbo was served with

appellate counsel’s motion to withdraw; Corbo did not file any assignments of error

for consideration.

                                  Independent Review

      In conducting our review, we examined the record of proceedings from the

trial court, including those issues identified by appellate counsel. Our review of the

record does not reveal any meritorious claims exist within the record in this appeal.

                               Competency Proceedings

              Corbo’s competency to stand trial was raised as an issue by trial

counsel. The trial court ordered the court psychiatric clinic to prepare a competency

evaluation. A defendant is presumed to be competent unless it is demonstrated by
a preponderance of the evidence that he or she is “incapable of understanding the

nature and objective of the proceedings against the defendant or of assisting in the

defendant’s defense.” R.C. 2945.37(G); State v. Winegarner, 

(8th Dist.). The court psychiatric clinic prepared a report dated December 13, 2023,

indicating Corbo was competent to stand trial. Because the State and Corbo

stipulated to the report, the trial court found Corbo competent to stand trial without

holding a hearing. State v. Smith, 

 (8th Dist.). We find no

meritorious appellate claim exists to challenge the competency proceedings.

                                  Plea Proceedings

               Before accepting a guilty plea to a felony offense, the trial court must

ensure that a defendant enters such plea knowingly, voluntarily, and intelligently.

State v. Holmes, 

, ¶ 5 (8th Dist.). The trial court does so by

personally engaging the defendant and determining if the defendant understands

the nature of the charges faced, the maximum penalty to be imposed, the effect of

the guilty plea, and the constitutional rights being waived by entering a guilty plea.

 Crim.R. 11.

                A plea may be vacated without a showing of prejudice by the trial

court’s failure to comply with Crim.R. 11 if (1) the trial court fails to explain the

constitutional rights included in Crim.R. 11(C)(2)(C) to the defendant, or (2) there

is a failure by the trial court to comply with the nonconstitutional aspects of the plea

colloquy. State v. Grossman, 

 (8th Dist.). We review the

validity of a guilty plea de novo. Id. at ¶ 19.
               We find that the record indicates the trial court complied with

Crim.R. 11(C) on January 29, 2024, when Corbo first entered into the plea

agreement and again on March 4, 2024, prior to imposing sentence. At the

sentencing hearing, having found that Corbo tested positive for drug use on January

29, 2024, the trial court conducted a second plea hearing in accordance with

Crim.R. 11.   The trial court personally addressed Corbo.           It explained the

constitutional rights Corbo would waive by pleading guilty and ensured that Corbo

understood the charge and maximum penalty he faced. The trial court further

explained to Corbo that he would be labeled a Tier III sexual offender with

registration requirements for life after entering his plea. We find the trial court

complied with Crim.R. 11 in accepting Corbo’s plea.

               Appellate counsel also considered whether Corbo received ineffective

assistance of counsel. A criminal defendant has a right to the effective assistance of

counsel when deciding whether to enter a guilty plea. State v. Ayesta, 2015-Ohio-

1695, ¶ 14 (8th Dist.), citing Padilla v. Kentucky, 

 (2010). When

arguing ineffective assistance of counsel, a defendant has to satisfy the two-part test

enunciated in Strickland v. Washington, 

 (1984), which requires the

defendant to show that (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) he was prejudiced by counsel’s deficient performance.

. “In the context of constitutional challenges to guilty pleas, the

prejudice prong of the test requires that the defendant show that there is a

reasonable probability that were it not for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Ayesta at ¶ 14, citing Hill

v. Lockhart, 

 (1985).

              In this case, there was no indicia that trial counsel was anything other

than competent. The record reflects that trial counsel filed a motion to ensure Corbo

was competent to stand trial, discussed the case with Corbo, and negotiated a plea

that reduced the potential sentence if Corbo would have been found guilty after a

trial of the charges within the indictment. Our review of the plea proceedings does

not reveal a meritorious appellate claim regarding the plea proceedings.

                            Sentencing Proceedings

              The trial court conducted a sentencing hearing at which it heard from

the victim, the State, trial counsel, and Corbo. It stated it reviewed the applicable

sentencing statutes and imposed a 48-month-prison term.                 Pursuant to

R.C. 2953.08(G)(2), this court “may increase, reduce, or otherwise modify a

sentence,” or vacate a sentence and remand for resentencing if “the sentence is

otherwise contrary to law.”    A sentence is contrary to law if it falls outside the

statutory range for the offense or the trial court failed to consider the statutory

purposes and principles of felony sentencing set forth in R.C. 2929.11 and 2929.12.

State v. Honey, 

 (8th Dist.).

              Corbo was sentenced for his plea of guilty to sexual battery, a felony

of the third degree, which carries a potential term of incarceration of 12 to 60

months’ imprisonment. R.C. 2929.14(A)(4). The record establishes that the trial

court considered the statutory purposes and principles of felony sentencing set forth
in R.C. 2929.11 and 2929.12 and imposed a 48-month-prison sentence, which

sentence is within the statutory range for the offense committed. Our review of the

sentence does not reveal the existence of a meritorious appellate claim.

                                 CONCLUSION

              Appellate counsel moved to withdraw from representation arguing

that the record does not contain a meritorious or nonfrivolous claim to raise on

Corbo’s behalf. We agree. Our review of the record reveals that Corbo was

determined competent to stand trial in accordance with the law, the trial court

complied with Crim.R. 11 in accepting Corbo’s plea, and the sentence imposed was

not contrary to law. Further, the record does not indicate Corbo received ineffective

assistance of counsel. Accordingly, we do not find there to be a meritorious claim to

be raised on appeal and we grant counsel’s motion to withdraw and dismiss this

appeal.

      It is ordered that appellee recover of appellant costs herein taxed.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and
ANITA LASTER MAYS, J., CONCUR