[Cite as State v. Maurer, 2019-Ohio-2388.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. CT2018-0042
                                               :
 RICHARD T. MAURER                             :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County
                                                   Court of Common Pleas, case no.
                                                   CR2018-0068



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            June 13, 2019




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 D. MICHAEL HADDOX                                 JAMES A. ANZELMO
 MUSKINGUM CO. PROSECUTOR                          446 Howland Drive
 GERALD V. ANDERSON                                Gahanna, OH 43230
 27 North Fifth St., P.O. Box 189
 Zanesville, OH 43702-0189
Muskingum County, Case No. CT2018-0042
                                                                                             2

Delaney, J.

       {¶1} Appellant Richard T. Maurer appeals from the May 24, 2018 Entry of the

Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from appellee’s statement of facts at the

change-of-plea hearing on April 16, 2018.

       {¶3} This case involves a criminal enterprise in which appellant and associates

received large shipments of Tramadol from India, broke the pills down into smaller

quantities in Muskingum County, Ohio, and mailed them to “customers” around the U.S.1

       {¶4} In October 2016, 2500 doses of Tramadol were intercepted in the mail,

destined for an address shared by appellant and a co-defendant. On November 18, 2016,

postal employees assisted the co-defendant with the mailing of an unsealed envelope

and multiple packs of Tramadol fell out of the envelope. On December 5, 2016, another

parcel destined for appellant’s P.O. Box was found to contain 2500 Tramadol pills.

       {¶5} A search warrant was executed at appellant’s residence on December 7,

2016, and the co-defendant was found inside the residence with a young child. Law

enforcement found shipping lists of names and addresses for pills to be sent to after

processing at the residence. Tramadol pills were found throughout the house, kitchen,

and dining room.        The co-defendant’s phone contained information regarding

“customers’” names, addresses, and “orders” for pills. The co-defendant admitted to the

existence of a criminal enterprise for the distribution of the pills with appellant and others.



1 References to “Tramadol” throughout indicate the controlled substance that was seized,
tested, and determined to contain Tramadol, a Schedule IV substance.
Muskingum County, Case No. CT2018-0042
                                                                                            3

She was paid a salary by the criminal enterprise to assist in processing orders for the

pills.

         {¶6} Future shipments were diverted by law enforcement. Appellee calculated

a total of 59,000 Tramadol pills were intercepted.

         {¶7} Appellant was previously convicted of drug possession (methamphetamine)

in 2012.

         {¶8} Appellant was cooperative with law enforcement throughout this

investigation. At sentencing he argued that he believed himself to be involved in “a

legitimate online prescription thing” because Tramadol is not generally a drug of abuse

and was only recently added to the list of controlled substances. Thus, appellant and his

co-defendant took no steps to be secretive, to hide their home address or other details of

the mailing operation, and readily shared information with law enforcement.

         {¶9} Appellant was charged by indictment with one count of trafficking in drugs

pursuant to R.C. 2925.03(A)(1), a felony of the second degree [Count I]; one count of

engaging in a pattern of corrupt activity pursuant to R.C. 2923.32(A)(1), a felony of the

first degree [Count II]; and one count of having a weapon while under disability pursuant

to R.C. 2923.13(A)(3), a felony of the third degree [Count III]. Count I included a forfeiture

specification pursuant to R.C. 2941.1417.

         {¶10} On April 16, 2018, appellant withdrew his previously-entered pleas of not

guilty and entered pleas of guilty as charged. The trial court thereupon found him guilty

and deferred sentencing pending preparation of a pre-sentence investigation.

         {¶11} Appellant appeared before the trial court for sentencing on May 23, 2018.

The trial court noted appellant had a prior felony conviction, plus pending charges in Perry
Muskingum County, Case No. CT2018-0042
                                                                                          4

County including, e.g., heroin and marijuana trafficking. The trial court imposed sentence

as follows: a stated prison term of 7 years upon Count I, a mandatory prison term of 8

years upon Count II, and a stated prison term of 2 years upon Count III. The trial court

ordered that the terms are to be served concurrently for a total aggregate prison term of

8 years. The trial court further noted appellant is ordered to serve a mandatory 5-year

term of post-release control, and ordered forfeiture of $5300 in cash and a firearm.

       {¶12} Appellant now appeals from the journal entries of his convictions and

sentence.

       {¶13} Appellant raises three assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶14} “I. RICHARD MAURER DID NOT KNOWINGLY, INTELLIGENTLY, AND

VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION        AND   SECTION      SIXTEEN,     ARTICLE     ONE    OF    THE       OHIO

CONSTITUTION.”

       {¶15} “II.   THE TRIAL COURT UNLAWFULLY SENTENCED RICHARD

MAURER WHEN IT CONSIDERED CHARGES FOR WHICH MAURER WAS NOT

CONVICTED, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”

       {¶16} “III. RICHARD MAURER RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
Muskingum County, Case No. CT2018-0042
                                                                                          5

                                        ANALYSIS

                                             I.

       {¶17} In his first assignment of error, appellant argues his guilty pleas were not

knowingly, intelligent, or voluntary. We disagree.

       {¶18} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently

and voluntarily. Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to

address the defendant personally and to convey certain information to such defendant;

the Rule prohibits acceptance of a plea of guilty or no contest without performing these

duties. State v. Holmes, 5th Dist. Fairfield No. 09 CA 70, 2010–Ohio–428, ¶ 10.

       {¶19} Although literal compliance with Crim. R. 11 is preferred, the trial court need

only “substantially comply” with the rule when dealing with the non-constitutional elements

of Crim.R. 11(C). State v. Dunham, 5th Dist. No. 2011–CA–121, 2012–Ohio–2957, ¶ 11,

citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), and State v.

Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

       {¶20} In State v. Griggs, the Ohio Supreme Court noted the following test for

determining substantial compliance with Crim.R. 11:

                     Though failure to adequately inform a defendant of his

              constitutional rights would invalidate a guilty plea under a

              presumption that it was entered involuntarily and unknowingly, failure

              to comply with non-constitutional rights will not invalidate a plea

              unless the defendant thereby suffered prejudice. [State v. Nero, 56

              Ohio St.3d 106, 108, 564 N.E.2d 474 (1990)]. The test for prejudice

              is ‘whether the plea would have otherwise been made. Id. Under the
Muskingum County, Case No. CT2018-0042
                                                                                             6

              substantial-compliance     standard,    we    review    the   totality   of

              circumstances surrounding [the defendant's] plea and determine

              whether he subjectively understood [the effect of his plea]. See, State

              v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20, 881

              N.E.2d 1224.

                     103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

Appellant’s specific complaint in the instant case is that the trial court failed to advise him

that the prison term upon Count I, drug trafficking, is mandatory. Appellant cites R.C.

2923.13(F)(6) [sic] for the proposition that a prison term is mandatory when an appellant

has a prior conviction for a felony of the first or second degree.

       {¶21} Pursuant to R.C. 2929.13(F)(6), a prison term is mandatory for “[a]ny

offense that is a first or second degree felony and that is not set forth in division (F)(1),

(2), (3), or (4) of this section, if the offender previously was convicted of or pleaded guilty

to aggravated murder, murder, any first or second degree felony, or an offense under an

existing or former law of this state, another state, or the United States that is or was

substantially equivalent to one of those offenses[.]” The question, though, is whether

appellant has a prior conviction of a felony of the first or second degree.

       {¶22} We need not reach the substantive issue of whether the trial court

substantially complied in its advisements to appellant because we find the argument is

not substantiated by the facts in the record: appellant’s prison term upon Count I may

have been mandatory if he had a prior conviction of a felony of the first or second degree,

but we find no evidence in the record that he had any such prior conviction. In fact, the

record indicates his prior felony was a fifth-degree drug possession charge.
Muskingum County, Case No. CT2018-0042
                                                                                           7

       {¶23} In his argument on appeal, appellant cites to a single line in the trial court’s

sentencing entry. Appellant states, “The court noted that [appellant] had previously been

convicted of a first degree felony, a second degree felony, and a third degree felony.

(May 23, 2018 Entry).” (Brief, 1). Our review of the Entry in question reveals that this

statement refers to appellant’s pleas of guilty to Counts I, II, and III in the instant case,

which occurred at the change-of-plea hearing prior to the sentencing hearing:

                     The Court has considered the record, all statements, any

              victim impact statement, the plea recommendation in this matter, as

              well as the principles and purposes of sentencing under Ohio

              Revised Code §2929.12. The Court finds that the Defendant has

              previously been found guilty of one (1) felony of the first degree;

              one (1) felony of the second degree; and one (1) felony of the

              third degree. (Emphasis added).

       {¶24} The entry goes on to cite the individual counts in the instant case, the

relevant code sections, and the penalty degree of the offenses.

       {¶25} We find no evidence in the record before us of any prior convictions of

felonies of the first or second degree which would require imposition of a mandatory

prison term upon Count I. At the change-of-plea hearing, appellee stated appellant’s

2012 prior conviction of drug possession was a felony of the fifth degree. (T. 13). At

sentencing on May 23, 2018, the trial court stated that it reviewed the P.S.I. and appellant

had a prior felony conviction “involv[ing] methamphetamines out of an OVI.” (T. 11).

(Emphasis added). We are therefore unconvinced that appellant has prior convictions of
Muskingum County, Case No. CT2018-0042
                                                                                           8

“a first degree felony, a second degree felony, and a third degree felony” that might

implicate a mandatory prison term upon Count I.

       {¶26} The record otherwise demonstrates the trial court had a meaningful

dialogue with appellant, fully apprising him of the rights he was waiving. State v. Curry,

5th Dist. Muskingum No. CT2015-0005, 2016-Ohio-401, ¶ 19, citing State v. Tillman, 6th

Dist. Huron No. H–02–004, 2004–Ohio–1967, ¶ 20. The court engaged appellant in a

personal inquiry as to whether he understood the plea agreement and its consequences.

State v. Waugaman, 5th Dist. Richland No. 18-CA-19, 2019-Ohio-1103, ¶ 14. Appellant

was represented throughout the hearing. Id. Nothing in the record indicates that appellant

was under the influence of any drug or other substance which would prohibit his

understanding of the court's questions. Id. The record indicates that he understood the

terms of the agreement and entered an intelligent, knowing and voluntary plea. Id.

       {¶27} In short, the trial court complied with Crim.R. 11, therefore, appellant's first

assignment of error is found to be without merit. See, State v. Broyles, 5th Dist. Ashland

No. 14–COA–037, 2015–Ohio–4778, ¶¶ 10–13; State v. Reed, 5th Dist. Ashland No. 14–

COA–010, 2015–Ohio–3534, ¶ 12.

       {¶28} The first assignment of error is overruled.

                                                II.

       {¶29} In his second assignment of error, appellant argues the trial court unlawfully

considered pending criminal charges in another county in fashioning his sentence in the

instant case. We disagree.

       {¶30} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶
Muskingum County, Case No. CT2018-0042
                                                                                           9

22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶ 28.

Clear and convincing evidence is that evidence “which will provide in the mind of the trier

of facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477 120 N.E.2d 118.

       {¶31} Appellant asserts his sentence is “contrary to law” because the trial court

considered pending unresolved charges against him in formulating the sentence in the

instant case. As noted supra in our statement of facts, the trial court noted that at the

time of sentencing, appellant had pending felonies in Perry County including aggravated

trafficking in heroin, aggravated possession of drugs, and trafficking in marijuana. The

trial court made this observation in response to appellant’s claim that he believed himself

to be engaged in a legitimate operation in the distribution of Tramadol:

                     * * * *.

                     Given your record, given the nature of this case and the size

              of the enterprise that you were involved with—I’m trying to look at
Muskingum County, Case No. CT2018-0042
                                                                                           10

              the appropriate words—that somebody is sending you drugs from

              out of the country and you’re repackaging them and sending them

              on, and to think that’s legal kind of boggles the mind. But then you’re

              also involved with getting charges down in Perry County involving

              heroin and marijuana.         Your original felony case involved

              methamphetamines out of an OVI.

                     Therefore, the Court finds that the---in regards to the felony

              of the first degree, the Court will impose an eight-year mandatory

              sentence; that’s seven year[s] on the felony of the second degree;

              a two-year on the felony of the third degree; order that all those

              sentences be served concurrently.

                     * * * *.

                     T. 11.

       {¶32} We do not find evidence in the record that the trial court unduly credited the

Perry County charges in formulating the instant sentence. Moreover, appellant points to

no case law in support of his assertion that the trial court’s sentence is unlawful. Appellant

generally cites State v. Burton, 52 Ohio St.2d 21, 23, 368 N.E.2d 297 (1977), for the

proposition that offenses for which a defendant has been arrested, but not convicted,

carry little, if any, weight during sentencing. We find no evidence in the record that the

trial court gave the pending charges undue weight in sentencing in the instant case. Nor

does appellant point to any such evidence.

       {¶33} The trial court's consideration of the Perry County charges was appropriate

because the information was contained in the presentence investigation report made
Muskingum County, Case No. CT2018-0042
                                                                                              11

pursuant to R.C. 2951.03. State v. Aguilar, 9th Dist. Wayne No. 10CA0051, 2011-Ohio-

6008, ¶ 16.     Additionally, under R.C. 2929.12(D)(1), the trial court was required to

consider whether appellant was awaiting trial on other charges at the time of committing

the offenses herein. Id.

       {¶34} We have no basis to find appellant’s sentence contrary to law on the

grounds presented. Appellant’s second assignment of error is overruled.

                                                  III.

       {¶35} In his third assignment of error, appellant argues he received ineffective

assistance of defense trial counsel because counsel failed to request waiver of court

costs. We disagree.

       {¶36} We note defense trial counsel filed a motion on May 21, 2018, arguing

appellant was indigent and moving the trial court not to impose mandatory fines. The trial

court granted the motion via judgment entry dated May 22, 2018.

       {¶37} Appellant argues, though, that defense trial counsel was ineffective in failing

to request a waiver of court costs. This Court considered rejected appellant’s argument

in   State    v.   Davis,     5th   Dist.    Licking     No.   17-CA-55,      2017-Ohio-9445,

and State v. Harris, 5th Dist. Muskingum No. CT2018-0005, 2018-Ohio-2257. We note

this issue is currently pending before the Ohio Supreme Court on a certified conflict

between Davis, supra, and State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-

8861. State v. Davis, 152 Ohio St. 3d 1441, 2018-Ohio-1600.2 See also, State v. Mathis,



2 The certified question in Davis is: “Is trial counsel’s failure to file a motion to waive court
costs at sentencing ineffective assistance of counsel when defendant has previously been
found indigent?”
Muskingum County, Case No. CT2018-0042
                                                                                       12

5th Dist. Muskingum No. CT2018-0011, 2018-Ohio-4090, appeal allowed, 154 Ohio St.3d

1499, 2019-Ohio-345, 116 N.E.3d 154.

       {¶38} We find no basis in the instant case to deviate from our prior rulings.

Accordingly, we adhere to our prior precedent in Davis and Harris and overrule appellant's

third assignment of error.

                                     CONCLUSION

       {¶39} Appellant’s three assignments of error are overruled and the judgment of

the Muskingum County Court of Common Pleas is affirmed.



By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.
