[Cite as State v. Motter, 2011-Ohio-4965.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 11 COA 3
SCOTT D. MOTTER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 10 CRI 110


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 28, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

RAMONA FRANCESCONI ROGERS                      JOANNA M. ORTH
PROSECUTING ATTORNEY                           SPORE & ASSOCIATES, LLC
PAUL T. LANGE                                  Post Office Box 906
ASSISTANT PROSECUTOR                           Perrysburg, Ohio 43552
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 11 COA 3                                                      2

Wise, J.

      {¶1}   Appellant, Scott D. Motter, plead guilty to a bill of information containing

four counts: one count of gross sexual imposition, a felony of the third degree, in

violation of R.C. 2907.05(A)(4) and three counts attempted child endangering, felonies

of the fourth degree, in violation of R.C. 2923.02(A) and R.C. 2919.22(B)(4)

      {¶2}   Appellant was sentenced to a term of five years on the charge of gross

sexual imposition and a term of eighteen months on each of the attempted child

endangerment counts. All four of these sentences were ordered served consecutive to

one another, however, for a total term of incarceration of nine and one half years.

      {¶3}   Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth two proposed

assignments of error.    Appellant did not file a pro se brief alleging any additional

assignments of error. Counsel for Appellant has raised two potential assignments of

error asking this Court to determine whether Appellant’s plea was entered knowingly,

intelligently, and voluntarily and whether Appellant’s sentence was contrary to law.

                                            I.

      {¶4}   “DEFENDANT/APPELLANT’S PLEA SHOULD BE SET ASIDE INSOFAR

AS IT WAS NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY.

                                            II.

      {¶5}   “DEFENDANT/APPELLANT’S SENTENCE SHOULD BE VACATED AS IT

IS EXCESSIVE, UNREASONABLE AND CONTRARY TO LAW.”
Ashland County, Case No. 11 COA 3                                                        3

       {¶6}   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 should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that 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

that 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.

       {¶7}   Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738.       We now will address the merits of Appellant’s potential

assignments of error.

                                              I.

       {¶8}   In his potential assignment of error, Appellant suggests his plea was not

entered knowingly, intelligently, and voluntarily.        A review of the plea hearing

demonstrates the trial court complied with the mandate of Crim.R. 11 in accepting

Appellant’s guilty pleas. The trial court explained to Appellant all of his rights, the

potential penalties and the effect of entering the guilty pleas.

       {¶9}   As we outlined in State v. Sullivan, 2007 WL 2410108, 2-3 (Ohio App. 5

Dist., 2007), a determination of whether a plea is knowing, intelligent, and voluntary is
Ashland County, Case No. 11 COA 3                                                       4

based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272. If a

criminal defendant claims that his plea was not knowingly, voluntarily, and intelligently

made, the reviewing court must review the totality of the circumstances in order to

determine whether or not the defendant's claim has merit. State v. Nero (1990), 56 Ohio

St.3d 106, 108.

       {¶10} To ensure that a plea is made knowingly and intelligently, a trial court

must engage in oral dialogue with the defendant in accordance with Crim.R. 11(C)(2).

State v. Engle (1996), 74 Ohio St.3d 525, 527.

       {¶11} A review of the record reveals that during the plea hearing, Appellant

indicated he had read the bill of information, read the plea of guilty form, which

contained an explanation of Appellant’s constitutional rights, and discussed these items

with his attorney. The trial court orally went over all of the required information to

comply with Crim.R. 11. There is absolutely no evidence Appellant’s plea was not

entered knowingly, intelligently, and voluntarily.

       {¶12} Appellant’s first Assignment of Error is overruled.

                                             II.

       {¶13} In his second potential assignment of error, Appellant argues the trial court

abused its discretion in imposing maximum, consecutive sentences and further argues

his sentence is contrary to law.

       {¶14} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Supreme Court of Ohio set forth the following two-step approach in reviewing a

sentence:
Ashland County, Case No. 11 COA 3                                                        5

       {¶15} “In applying Foster to the existing statutes, appellate courts must apply a

two-step approach. First, they must examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

trial court's decision shall be reviewed under an abuse-of-discretion standard.”

       {¶16} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 450 N.E.2d 1140.

       {¶17} The sentences imposed in this case were within the sentencing range

provided by statute, therefore, the first prong is satisfied.

       {¶18} This case involved two child victims ages five and six. One of the victims

is physically and mentally handicapped. Appellant used his position as a parent to

commit the offenses. Appellant’s conduct was not a single incident but ongoing. We

cannot say under the circumstances of this case that the trial court abused its discretion

in imposing maximum, consecutive sentences.

       {¶19} Appellant’s second proposed assignment of error is overruled.
Ashland County, Case No. 11 COA 3                                                   6


      {¶20} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that 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 Ashland County Court of

Common Pleas.



By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



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                                                              JUDGES

JWW/d 0907
Ashland County, Case No. 11 COA 3                                                 7


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
SCOTT D. MOTTER                          :
                                         :
       Defendant-Appellant               :         Case No. 11 COA 3




       For the reasons stated in our accompanying Memorandum-Opinion, counsel for

Appellant is granted leave to withdraw and the judgment of the Court of Common Pleas

of Ashland County, Ohio, is affirmed.

       Costs assessed to appellant.




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                                                            JUDGES
