[Cite as State v. Ratliff, 2014-Ohio-2677.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    CHAMPAIGN COUNTY

 STATE OF OHIO                                    :
                                                  :     Appellate Case No. 2013-CA-24
          Plaintiff-Appellee                      :
                                                  :     Trial Court Case No. 12-CR-332
 v.                                               :
                                                  :
 LAWRENCE A. RATLEFF, JR.                         :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
          Defendant-Appellant                     :
                                                  :
                                              ...........

                                              OPINION

                                 Rendered on the 20th day of June, 2014.

                                              ...........

KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty. Reg. #0061426,
Champaign County Prosecutor’s Office, 200 North Main street, Urbana, Ohio 43078
     Attorney for Plaintiff-Appellee

LAWRENCE A. RATLEFF, #A678-639, Chillicothe Correctional Institution, Post Office Box
5500, Chillicothe, Ohio 45601
       Defendant-Appellant, pro se

DANIEL A. PERRY, Atty. Reg. #0087548, 123 Boggs Lane, Cincinnati, Ohio 45246
     Attorney for Defendant-Appellant

                                              .............
FAIN, J.

       {¶ 1}      Defendant-appellant Lawrence A. Ratleff, Jr. appeals from his conviction and

sentence for Possession of Heroin and Tampering with Evidence. Ratleff’s appellate counsel

has filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967), indicating that counsel found no potential assignments of error having

arguable merit.

       {¶ 2}      Pursuant to Anders, we have accorded Ratleff the opportunity to file his own, pro

se brief, and he has filed a brief. In that brief, Ratleff contends that the trial court abused its

discretion in running his prison sentences in this case consecutive to prison sentences that were

imposed in another criminal case; his guilty plea was not made knowingly, intelligently, and

voluntarily; he received ineffective assistance of trial counsel; and the trial court failed to follow

the mandates of Crim.R. 11(C).

       {¶ 3}      We conclude that none of the potential assignments of error raised by Ratleff in

his brief have arguable merit.       Furthermore, after independently reviewing the record in

accordance with our duty under Anders, we have found no potential assignments of error having

arguable merit. Accordingly, the judgment of the trial court is Affirmed.



                                   I. Course of the Proceedings

       {¶ 4}      In December 2012, a Champaign County Grand Jury indicted Ratleff on one

count of Trafficking in Heroin, in violation of R.C. 2925.03, a felony of the third degree; one

count of Possession of Heroin, in violation of R.C. 2925.11, a felony of the third degree; and one

count of Tampering with Evidence, in violation of R.C. 2921.12, a felony of the third degree.

Pursuant to a plea agreement with the State, Ratleff pled guilty to the Possession of Heroin and
                                                                                                       3


Tampering with Evidence counts, and the Trafficking in Heroin count was dismissed.

       {¶ 5}     The trial court found Ratleff guilty of the two counts and sentenced him to 24

months in prison on the Possession of Heroin count and to 12 months on the Tampering with

Evidence count. The trial court ordered these two sentences to run concurrently with one

another, but consecutively to a prison term previously imposed upon Ratleff in a Union County

criminal proceeding.

       {¶ 6}     Ratleff appeals from the judgment of conviction and sentence.                Ratleff’s

appointed counsel filed a brief pursuant to Anders v. California, supra, indicating that there are

no meritorious issues presented on appeal. In Anders cases we are charged with conducting an

independent review of the record to determine “whether any issues involving potentially

reversible error that are raised by appellate counsel or by a defendant in his pro se brief are

‘wholly frivolous.’ * * * If we find that any issue presented or which an independent analysis

reveals is not wholly frivolous, we must appoint different appellate counsel to represent the

defendant.” (Internal citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226,

2003-Ohio-3242, ¶ 7. An appeal is frivolous if it “presents issues lacking in arguable merit. * *

* 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.” (Citation omitted.) Id. at ¶ 8.

       {¶ 7}     Ratleff’s counsel identified one potential assignment of error, which is addressed

in Part II, below. By Magistrate’s Order, this court advised Ratleff that his appointed counsel

had filed an Anders brief and informed him of the significance of an Anders brief. Furthermore,

this court invited Ratleff to file his own, pro se brief within 60 days of the Magistrate’s Order.

After filing multiple motions for extension of time, Ratleff filed a brief stating that his inability to
                                                                                                          4


obtain copies of the transcripts from the plea and sentencing hearings prevented him from citing

to errors committed by the trial court. However, Ratleff requested that we independently review

the record, paying particular attention to four issues, which are addressed in Parts II through V,

below.



                                 II. The Trial Court Did Not Abuse its Discretion

                                            by Imposing Consecutive Sentences

         {¶ 8}        Although Ratleff’s appointed counsel asserts that there are no arguably

meritorious issues raised on appeal, he identified the following potential assignment of error1 for

our consideration:

         {¶ 9}        WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING

APPELLANT’S                 CONVICTION                   AND           SENTENCE     IN   CHAMPAIGN   COUNTY

CONSECUTIVE TO APPELLANT’S CONVICTION AND SENTENCE IN UNION COUNTY.

         {¶ 10} R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if it

finds that: (1) consecutive sentencing is necessary to protect the public from future crime or to

punish the offender; (2) consecutive sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger the offender poses to the public; and (3) “[t]he offender's

history of criminal conduct demonstrates that consecutive sentences are necessary to protect the

public from future crime by the offender.” R.C. 2929.14(C)(4).

         {¶ 11} In most cases, “[t]he trial court is not required to give reasons explaining these

findings, nor is the court required to recite any ‘magic’ or ‘talismanic’ words when imposing

          1
              In his appellate brief, Ratleff also asked us to review this issue.
                                                                                             5


consecutive sentences. * * * Nevertheless, the record must reflect that the court made the

findings required by the statute.”      State v. Temple, 2d Dist. Clark No. 2012-CA-65,

2013-Ohio-3843, ¶ 21, quoting State v. Hubbard, 10th Dist. Franklin No. 11AP-945,

2013-Ohio-2735, ¶ 86.

      {¶ 12} At the sentencing hearing, Tr. 20, the trial court stated, in part:

             The Court imposes the following terms of imprisonment. Count Two

      imprisonment of 24 months to the Ohio Department of Rehabilitation and

      Corrections.

             Count Three, 12 months to the Ohio Department of Rehabilitation and

      Corrections. Those sentences are consecutive - - are concurrent to one another

      making a total sentence in Champaign County of 24 months to the Ohio

      Department of Rehabilitation and Corrections.

             But the sentences are consecutive to Union County.               In imposing

      consecutive sentences, the Court finds that necessary – sentencing is necessary to

      protect the public from future crimes or punish the defendant.           Consecutive

      sentences are not disproportionate to the seriousness of the conduct and to the

      danger defendant poses to the public, and the defendant’s history of criminal

      conduct demonstrates consecutive sentences are necessary to protect the public

      from future crimes by the defendant.

             Mr. Ratleff, the Court accepts in part your explanation of why you had 67

      unit doses on you in Champaign County, but the Court can’t overlook the fact that

      you had 140 the day before. The Court also can’t overlook the fact that you had
                                                                                                    6


          led a law-abiding life for a significant period of time. Therefore, the Court tried

          to find a sentence that balanced both of those factors.

          {¶ 13} When imposing Ratleff’s sentence, the trial court made the findings required by

R.C. 2929.14(C)(4), including specifically the finding set forth in subdivision (c) that his history

of criminal conduct demonstrates that consecutive sentences are necessary to protect the public

from future crime. We do not “clearly and convincingly” find either that the record does not

support the trial court's findings under R.C. 2929.14(C)(4), or that the sentence is otherwise

contrary to law. R.C. 2953.08(G)(2); State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d

Dist.). Furthermore, considering the abuse of discretion standard, which Ratleff suggests in his

appellate brief, we conclude that the trial court did not abuse its discretion by imposing

consecutive sentences.

          {¶ 14} We conclude that this potential assignment of error has no arguable merit.



      III. The Trial Court Informed Ratleff of the Possibility of Consecutive Sentences

          {¶ 15} The first of the potential assignments of error proposed in Ratleff’s pro-se brief

states:

                 APPELLANT          [SIC]    GUILTY        PLEA     WAS      NOT     MADE

          VOLUNTARILY, INTELLIGENTLY, AND WITH AN UNDERSTANDING

          THAT HIS CONVICTION IN CHAMPAIGN COUNTY, WOULD NOT BE

          RUN CONCURRENTLY WITH HIS CONVICTION IN UNION COUNTY.

          {¶ 16} Ratleff’s sole contention relating to this assignment of error appears to be that he

was not aware that his sentence in the Champaign County case could be run consecutively to, as
                                                                                                 7


opposed to concurrently with, his sentence in the Union County case.              Consequently, he

contends that his plea could not have been knowing, voluntary, and intelligent.

       {¶ 17} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”

State v. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, ¶ 8, citing State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7.

       {¶ 18} At the plea hearing, Tr. 10-11, the trial court explained the possibility of the

prison sentences imposed in this case being ordered to run consecutively to the sentences

imposed in the case in Union County:

                THE COURT: * * * At the time of sentencing, whenever that is, the Court

       has to decide whether the sentences are to be served consecutive or concurrent.

       Consecutive means that the sentences are served one right after the other.

       Concurrent means they’re served at the same time.          If you were to receive

       maximum consecutive sentencing for Counts Two and Three, you would face up

       to a 10-year term of imprisonment, up to a $20,000 fine. Do you understand that?

                THE DEFENDANT: I thought the max would be five years. I mean, six

       years.

                THE COURT: You know, you’re correct. I’m using old law.

                THE DEFENDANT: Oh, okay.



                THE COURT: Thank you for that correction. So, yeah, it would be up to
                                                                                                 8


       six years. I mean, it would be maximum consecutive sentencing is six years.

       Maximum consecutive fine is $20,000. Do you understand that?

               THE DEFENDANT: Yes, sir.

               THE COURT: In addition, it appears that you may have some criminal

       offenses in Union County that you have to face based on your representation.

       That there are – that there are two felonies of the third degree offenses. We are

       going to presume that because they’re drug related those two are three-year

       sentences, and that those two would also carry maximum consecutive sentences of

       six years. The Court that sentences you last is the Court that determines whether

       your case runs consecutive to or concurrent with another county.           Do you

       understand that?

               THE DEFENDANT: Yes, sir.

               THE COURT: So all tolled, [sic] you could be entering a process where

       your maximum consecutive sentencing is a 12-year sentence. Do you understand

       that?

               THE DEFENDANT: Yes, sir.

       {¶ 19} The trial court explained to Ratleff that there was a possibility that his sentences

in this case could be ordered to run consecutively to his sentences in Union County. Ratleff

stated that he understood this.     Consequently, we find no arguable merit to this potential

assignment of error.



                       IV. The Record Fails to Demonstrate that Ratleff Has
                                                                                                    9


                        Received Ineffective Assistance of Trial Counsel

       {¶ 20} The second proposed assignment of error in Ratleff’s pro se brief states:

               APPELLANT [SIC] TRIAL COUNSEL COMMITTED INEFFECTIVE

       ASSISTANCE OF COUNSEL FOR FAILURE TO EXPLAIN TO APPELLANT

       THE CONSEQUENCES OF HIS PLEA, AND THAT BY ENTERING A PLEA

       OF GUILTY HIS CONVICTION IN EITHER COUNTIES COULD BE RAN

       CONSECUTIVE.

       {¶ 21} A claim of ineffective assistance of trial counsel requires both a showing that trial

counsel’s representation fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984).       A reviewing court “must indulge in a strong          presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.

The prejudice prong requires a finding that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different, with a reasonable

probability being “a probability sufficient to undermine confidence in the outcome.” Id. at 694.

See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

       {¶ 22} We have found nothing in the record to indicate that Ratleff’s trial counsel failed

to explain the consequences of his plea and the fact that his sentences in this case could be

ordered to run consecutively to his sentences in Union County. Furthermore, the trial court

explained to Ratleff at the plea hearing that it was possible that Ratleff’s sentences in this case

would be ordered to run consecutively to any sentences imposed in the Union County case.

Ratleff stated to the trial court that he understood this explanation. Indeed, Ratleff corrected the
                                                                                                    10


trial court at one point regarding the maximum sentences that he could receive. Consequently,

even if we were to assume that Ratleff’s trial counsel failed to inform him of this fact, it is clear

that Ratleff understood the possibility and import of receiving consecutive sentences when he

tendered his plea. Therefore, he cannot show any prejudice resulting from his counsel’s alleged

deficiency.

       {¶ 23} This proposed potential assignment of error has no arguable merit.



                       V. The Trial Court Complied with Crim.R. 11(C)

       {¶ 24} The fourth potential assignment of error proposed in Ratleff’s pro se brief states:

               THE TRIAL COURT FAILED TO FOLLOW THE MANDATE OF

       CRIMINAL RULE 11(C)(a)(b) [SIC], WHEN ADDRESSING APPELLANT

       PERSONALLY ABOUT THE EFFECT OF HIS GUILTY PLEA.

       {¶ 25} We construe this proposed potential assignment of error as asserting that the trial

court failed to comply with Crim.R. 11(C)(2), which governs the process a trial court must follow

to ensure a guilty plea to a felony charge is knowing, intelligent, and voluntary. According to

Crim.R. 11(C)(2):

               In felony cases the court may refuse to accept a plea of guilty or a plea of

       no contest, and shall not accept a plea of guilty or no contest without first

       addressing the defendant personally and doing all of the following:

               (a) Determining that the defendant is making the plea voluntarily, with

       understanding of the nature of the charges and of the maximum penalty involved,

       and if applicable, that the defendant is not eligible for probation or for the
                                                                                                 11


       imposition of community control sanctions at the sentencing hearing.

               (b) Informing the defendant of and determining that the defendant

       understands the effect of the plea of guilty or no contest, and that the court, upon

       acceptance of the plea, may proceed with judgment and sentence.

               (c) Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to jury trial, to

       confront witnesses against him or her, to have compulsory process for obtaining

       witnesses in the defendant's favor, and to require the state to prove the defendant's

       guilt beyond a reasonable doubt at a trial at which the defendant cannot be

       compelled to testify against himself or herself.

       {¶ 26} We have reviewed the entirety of the plea transcript and conclude that the trial

court satisfied the requirements set forth in Crim.R. 11(C)(2). The trial court asked a series of

questions to confirm that Ratleff understood the nature of the charges against him, the potential

penalties that could be imposed if he was found guilty, the effect of a guilty plea, and the rights

that Ratleff was giving up by pleading guilty. The trial court also asked a series of questions to

determine whether Ratleff was entering into his plea voluntarily.

       {¶ 27} This proposed potential assignment of error has no arguable merit



      VI. We Find No Other Potential Assignments of Error Having Arguable Merit.

       {¶ 28} Pursuant to our responsibilities under Anders, we have conducted an independent

review of the entire record.     We agree with appellate counsel that there are no potential

assignments of error having arguable merit.
                                                                                          12




                                         VII. Conclusion

       {¶ 29} Because we have found no potential assignments of error having arguable merit,

the judgment of the trial court is Affirmed.

                                          .............


DONOVAN and WELBAUM, JJ., concur.



Copies mailed to:

Kevin S. Talebi
Jane A. Napier
Lawrence A. Ratleff
Daniel A. Perry
Hon. Nick A. Selvaggio
