[Cite as State v. Goode, 2013-Ohio-2119.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :            C.A. CASE NO.     25340

v.                                                  :            T.C. NO.   12CR157

SAMUEL E. GOODE                                     :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                         Rendered on the     24th       day of       May         , 2013.

                                            ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1} This matter is before the court on the Notice of Appeal of Samuel E. Goode,
                                                                                            2

filed August 24, 2012. Mr. Goode was originally charged by indictment with one count of

having a weapon while under disability, a felony of the third degree, in violation of R.C.

2923.13(A)(3), and one count of improper handling of a firearm in a motor vehicle, a felony

of the fourth degree, in violation of    R.C. 2923.16(B). Mr. Goode filed a motion to

suppress on April 2, 2012, and an evidentiary hearing was set for June 29, 2012. Prior to

the hearing, the parties informed the trial court that they wished to enter into a plea

agreement. Pursuant to that agreement, Mr. Goode plead guilty to one count of having a

weapon while under disability, a felony of the third degree, in violation of R.C.

2923.13(A)(3). In exchange for the guilty plea, the State agreed to dismiss count two of the

indictment for improper handling of a firearm in a motor vehicle. The trial court sentenced

Mr. Goode to community controlled sanctions for a period not to exceed five years.

       {¶ 2}    On January 29, 2013, appointed counsel filed an Anders brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that no

arguably meritorious issues exist for appeal. By magistrate’s order of February 1, 2013, we

informed Mr. Goode that his counsel filed an Anders brief and informed him of the

significance of an Anders brief. We invited Mr. Goode to file a pro se brief assigning any

error for our review within sixty days of February 1, 2013. Mr. Goode has yet to file

anything with this court.

       {¶ 3} Although appointed counsel raised no meritorious claims on behalf of Mr.

Goode, he identified two potential assignments of error: 1) the trial court erred by accepting

an involuntary plea of guilty; and 2) the trial court erred in amending the indictment. Upon

review, we agree with counsel that the potential assignments of error have no arguable merit.
[Cite as State v. Goode, 2013-Ohio-2119.]
        {¶ 4}     Although counsel for Mr. Goode commented on the record that the plea

offer took Mr. Goode by surprise and that she thought Mr. Goode was at first reluctant to

accept the plea deal (see Tr., p. 4), the court took considerable time and effort to ensure that

Mr. Goode was fully aware of the plea offer and its consequence, as well as the alternative

available to him to stand on his not guilty plea and proceed to trial on both counts. Id. The

trial court conducted a thorough and complete Crim. R. 11 dialogue with Mr. Goode, and his

plea was ultimately entered in a knowing and voluntary fashion free of any hesitation or

objection.

        {¶ 5}     The second potential assignment of error stems from the trial court

amending the indictment during the course of the plea hearing. The plea transcript reflects

the prosecutor’s reading of the indictment and Mr. Goode’s acknowledgment and

understanding of the charges against him. During the initial reading of the indictment, the

prosecuting attorney expressed concern as to the inclusion of certain language in count one

of the indictment, whereupon three lines of the indictment were stricken by oral amendment

with the consent of the court and without objection from defense counsel. Count one is a

violation of R.C. 2923.13(A)(3), which states in relevant part, “(A) Unless relieved from

disability * * * no person shall knowingly acquire, have, carry, or use any firearm or

dangerous ordnance, if any of the following apply: * * * (3) The person is under indictment

for or has been convicted of any felony offense involving the illegal possession, use, sale,

administration, or trafficking in any drug of abuse * * * ”. The deleted language read, “That

within five years of the date the said Defendant was released from imprisonment or from

post release control imposed for a previous conviction in the State of Georgia for a felony

drug abuse offense of the first or second degree.” Tr., p. 18. After this deletion, count one
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in the indictment reads:

               The GRAND JURORS of the County of Montgomery, in the name,

       and by the authority of the State of Ohio, upon their oaths do find and present

       that: SAMUEL E. GOODE, on or about DECEMBER 11, 2011 in the

       County of Montgomery, aforesaid, and State of Ohio, did knowingly acquire,

       have, carry or use any firearm, to-wit: HANDGUN, said defendant having

       been previously convicted in the State of Georgia of any offense involving the

       illegal possession, use, sale, administration, distribution or trafficking in any

       drug of abuse, to-wit: SIMPLE POSSESSION (COCAINE), on FEBRUARY

       8, 1993, in the case of State of Georgia versus SAMUEL E. GOODE, being

       Case Number Z 49524, in the FULTON COUNTY, GEORGIA SUPERIOR

       COURT; contrary to the form of the statute (in violation of Section

       2923.13(A)(3) and (B) of the Ohio Revised Code) in such case made and

       provided, and against the peace and dignity of the State of Ohio.

       {¶ 6}    Crim. R. 7 allows the court to amend the indictment with respect to any

defect or imperfection, provided there is no change in the identity or name of the crime

charged.   Here, the court granted a motion to remove the aforementioned superfluous

language from the indictment, which made no change to the name or identity of the crime

charged.

       {¶ 7}    In the performance of our duty, under Anders v. California, to conduct an

independent review of the record, we have found no potential assignments of error having

arguable merit. We therefore conclude that this appeal is wholly frivolous and the judgment
                                                5

of the trial court is Affirmed.

                                   ..........

FAIN, P.J. and HALL, J., concur.

Copies mailed to:

Carley J. Ingram
Lucas W. Wilder
Samuel E. Goode
Hon. Frances E. McGee
