[Cite as State v. Ringel, 2016-Ohio-5172.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-15-1298

        Appellee                                 Trial Court No. CR0201501854

v.

Andrew Ringel                                    DECISION AND JUDGMENT

        Appellant                                Decided: July 29, 2016

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

        Andrew Ringel, pro se.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Andrew Ringel, appeals the October 30, 2015

judgment of the Lucas County Court of Common Pleas which, following his guilty plea

to one count of permitting drug abuse, was sentenced to 11 months of imprisonment. For

the reasons that follow, we affirm.
       {¶ 2} On May 22, 2015, appellant was indicted on one count of trafficking in

marijuana, R.C. 2925.03, a third degree felony, and one count of possession of marijuana,

R.C. 2925.11, a third degree felony. Appellant entered not guilty pleas to the charges.

On September 16, 2015, appellant agreed to be charged under a bill of information to one

count of permitting drug abuse, R.C. 2925.13, a fifth degree felony. In exchange for

appellant’s guilty plea, the state agreed to recommend a community control sanction.

Appellant then entered a plea of guilty to the charge and was sentenced to 11 months in

prison. The trial court entered a nolle prosequi to the charges brought under the

indictment. This appeal followed.

       {¶ 3} Appellant has appealed the conviction and sentence to this court through

appointed counsel. Appellant’s counsel advises the court, however, under procedures

announced in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

that she has thoroughly examined the record, discussed the case with appellant, and is

unable to find meritorious grounds for appeal. Following Anders procedure, appellate

counsel filed a brief setting forth potential grounds for appeal and also filed a request to

withdraw as counsel.

       {¶ 4} Counsel notified appellant of her inability to find meritorious grounds for

appeal and provided appellant with copies of both the Anders brief and her motion to

withdraw. Counsel advised appellant of his right to file his own appellate brief.

Appellant has filed an additional brief.




2.
      {¶ 5} In her Anders brief, counsel has asserted two potential assignments of error:

             Potential First Assignment of Error: The trial court committed

      reversible error when it allowed appellant to plead guilty to a felony charge

      which was not presented to a grand jury, based on appellant’s waiver of

      prosecution by indictment, and consent to be prosecuted through

      information.

             Potential Second Assignment of Error: The trial court committed

      reversible error when it did not follow the state’s sentencing

      recommendation, and sentenced appellant to prison.

      {¶ 6} Appellant has also raised two potential assignments of error. They provide:

             First Assignment of Error: The trial court committed reversible

      error when the judge overreached her powers in not allowing defendant to

      put his legal affairs in order prior to sentencing. Due to this defendant’s

      sentencing [sic] was prejudiced by the unresolved issues in California.

             Second Assignment of Error: Defendant’s counsel acted

      unreasonably under prevailing professional norms when acting on

      defendant’s behalf and with advice. Due to this defendant received

      ineffective assistance of counsel.

      {¶ 7} Appellant’s counsel first argues that the trial court erred when it allowed

appellant to enter a guilty plea to a felony change which was not presented to grand jury

and charged by indictment. As to a charge by information, R.C. 2941.021provides:




3.
              Any criminal offense which is not punishable by death or life

       imprisonment may be prosecuted by information filed in the common pleas

       court by the prosecuting attorney if the defendant, after he has been advised

       by the court of the nature of the charge against him and of his rights under

       the constitution, is represented by counsel or has affirmatively waived

       counsel by waiver in writing and in open court, waives in writing and in

       open court prosecution by indictment.

       {¶ 8} As required under R.C. 2941.021, during appellant’s September 16, 2015

plea hearing the trial court informed appellant of his right to be charged through an

indictment by a grand jury; appellant indicated that he understood and that he desired to

waive prosecution by indictment and consent to be prosecuted by information.

Appellant’s consent was memorialized in a signed document which specifically indicated

his waiver of prosecution by indictment. Accordingly, we find that appellant’s counsel’s

first potential assignment of error is not well-taken.

       {¶ 9} In appellant’s counsel’s second potential assignment of error she argues that

the trial court erred when it rejected the state’s sentencing recommendation and sentenced

appellant to prison. As this court has stated:

              The plain meaning of the term “recommendation” undermines

       appellant’s contention that he believed that the trial court was bound by the

       state’s recommended two year sentence under the plea agreement. To

       recommend is to “advise” or “to present as worthy of acceptance or trial.”




4.
       Webster’s Ninth New Collegiate Dictionary (1990) 984. (Internal citation

       omitted.) State v. Medrano, 6th Dist. Wood No. WD-08-006, 2008-Ohio-

       5809, ¶ 13.

       {¶ 10} At the plea hearing appellant was clearly informed that the trial court was

not required to follow the state’s sentencing recommendation. The following discussion

took place:

              THE COURT: [A]s to that promise [that the state] will recommend

       community control, you understand I’m not bound by that

       recommendation, do you understand that?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: And in other words, so you truly understand the

       consequences of the plea, presume the worst in the sense that you’ll know

       your exposure that would be that the court would make findings, send you

       to the penitentiary, * * * do you understand that?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: And you understand the court is not bound by the

       State’s recommendation?

              THE DEFENDANT: Yes, Your Honor.

       {¶ 11} Based on the foregoing, we find that the court did not err by not following

the state’s sentencing recommendation. Appellant’s counsel’s second potential

assignment of error is not well-taken.




5.
         {¶ 12} In appellant’s first potential assignment of error he contends that the trial

court erred by not allowing him to return to California prior to sentencing in order to “put

his legal affairs in order.” Denying appellant’s request to go to California for one week,

the court noted that there was not a fugitive warrant pending and that, due to the distance,

it was in Ohio’s interest to retain appellant to ensure that he address the charges against

him.

         {¶ 13} Reviewing the argument, we note that a trial court has discretion to

continue bond pending the imposition of sentence. Giving v. Erie Cty. Sheriff, 6th Dist.

Erie No, E-05-092, 2005-Ohio-6844, ¶ 10. Such discretion contemplates the conditions

of bond, including conditions of travel. Reviewing the discussion regarding appellant’s

request to travel to California, we cannot find that the trial court abused its discretion

when it denied the request. Appellant’s first potential assignment of error is not well-

taken.

         {¶ 14} In appellant’s second potential assignment of error he complains that his

trial counsel was ineffective by failing to properly pursue appellant’s desire to return to

California to address an outstanding warrant. Specifically, appellant argues that counsel

should have addressed the issue by motion prior to the plea hearing. Appellant claims

that his inability to return to California may have impacted his decision to enter a plea.

         {¶ 15} To establish ineffective assistance of counsel, an appellant must

demonstrate “(1) deficient performance of counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable




6.
probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002). When,

however, a defendant enters a guilty plea or no contest plea, he waives the right to claim

that he was prejudiced by constitutionally ineffective counsel, unless the conduct

complained of is shown to have prevented the defendant from making a knowing and

voluntary plea. State v. Barnett, 73 Ohio App.3d 244, 248-249, 596 N.E.2d 1101 (2d

Dist.1991).

       {¶ 16} Upon review of the record below, we cannot say that appellant’s trial

counsel was ineffective. Appellant was indicted on trafficking in marijuana and

possession of marijuana, third degree felonies, each count with a prison sentence range of

nine to 36 months. Appellant’s counsel negotiated a very favorable plea agreement,

permitting drug abuse, a fifth degree felony, with a prison term range of six to 12 months.

       {¶ 17} Regarding appellant’s desire to return to California, at the September 16,

2015 plea hearing counsel addressed the matter at length with the trial court

demonstrating that he had been in contact with appellant’s probation officer in California

and had made arrangements necessary to ensure that appellant would be gone only for the

week requested. The state did not make an opposing argument. Appellant has not

presented any evidence in the record that the court would have granted a motion had one




7.
been filed or that appellant would not have entered his guilty plea. Appellant indicated

that he was satisfied with counsel’s representation. In addition, at the October 29, 2015

sentencing hearing it was apparent that appellant’s counsel was well-acquainted with

appellant and the facts of his case; he spoke effectively on appellant’s behalf.

Accordingly, appellant’s second potential assignment of error is not well-taken.

       {¶ 18} This court, as required under Anders, has undertaken an independent

examination of the record to determine whether any issue of arguable merit was

presented for appeal. We have found none. Accordingly, we find this appeal is without

merit and wholly frivolous. We grant the motion of appellant’s counsel to withdraw as

counsel in this appeal and affirm the judgment of the Lucas County Court of Common

Pleas. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. The

clerk is ordered to serve all parties, including the defendant if he has filed a brief, with

notice of this decision.


                                                                           Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     State v. Ringel
                                                                     C.A. No. L-15-1298




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Stephen A. Yarbrough, J.                                  JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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