[Cite as State v. Christian, 2014-Ohio-4882.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2013-T-0055
        - vs -                                  :

JAMES M. CHRISTIAN,                             :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2010 CR
00119.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Jay Blackstone, WPA Memorial Building, 132 South Broad Street, Suite 401-A,
Canfield, OH 44406 (For Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, James M. Christian, appeals from the May 1, 2013

judgment of the Trumbull County Court of Common Pleas, sentencing him to a total of

18 years in prison for Complicity to Involuntary Manslaughter, Aggravated Burglary, and

Tampering with Evidence. The issue before this court is whether an appeal is wholly

frivolous where the appellant entered a guilty plea and was sentenced according to the

parties’ agreement. For the following reasons, we affirm the decision of the court below.
       {¶2}   The State filed a Bill of Information on March 3, 2010, charging Christian

with two counts of Complicity to Involuntary Manslaughter (Counts One and Two),

felonies of the first degree, in violation of R.C. 2903.04(A) and (C) and R.C.

2923.03(A)(2) and (F); Aggravated Burglary (Count Three), a felony of the first degree,

in violation of R.C. 2911.11(A)(2) and (B); and Tampering with Evidence (Count Four), a

felony of the third degree, in violation of R.C. 2921.12(A)(1) and (B).       Counts One

through Three had firearm specifications under R.C. 2941.145.

       {¶3}   Christian entered a guilty plea to the Bill of Information on that date. The

trial court accepted his plea and a Finding on Guilty Plea was filed, which outlined

Christian’s rights and the potential penalties. It also noted that the State and Christian

jointly agreed on a sentence of 18 years, pursuant to Christian’s cooperation in his co-

defendants’ cases.

       {¶4}   A sentencing hearing was held on April 25, 2013. At the hearing, the

State advised the court that Christian complied with the terms of the plea agreement

and that the parties agreed that his sentence should be 18 years. Christian’s counsel

noted that he had been cooperative with the State. The court accepted the agreement

between the parties and found it “reasonable.”           The court merged the firearm

specifications and sentenced Christian to a term of three years. It also sentenced him

to concurrent terms of 10 years each for Counts One and Two, and a consecutive term

of five years on Count Three. These terms were to be consecutive to the firearm

specification. Christian also received 36 months on Count Four, to be concurrent with

the other offenses, for a total term of 18 years. The court advised Christian of his ability




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to receive jail credit and potential community service requirements for unpaid fees and

costs. The court also explained the mandatory post-release control.

       {¶5}   This verdict was memorialized in a May 1, 2013 Entry on Sentence. The

court noted that it had considered the requisite sentencing factors under R.C. 2929.11

and .12 and restated the advisements given during the sentencing hearing.

       {¶6}   Christian filed a timely Notice of Appeal on May 24, 2013.

       {¶7}   On September 20, 2013, appellate counsel filed Christian’s appellate brief,

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

Counsel represented that he had reviewed Christian’s file and found “no prejudicial

errors” and “that an appeal of the sentence imposed would be frivolous.” On the same

date, counsel filed a separate Motion to Withdraw under Anders, again asserting that

there was no prejudicial error committed by the trial court.

       {¶8}   On October 17, 2013, this court granted Christian 30 days in which “to file

a brief or memorandum * * * which raises any additional arguments in support of his

appeal for this court’s review.” Appellate counsel’s request to withdraw was ordered to

be “held in abeyance pending this court’s further review and determination pursuant to

Anders.” Christian has not filed any further brief or memorandum in support of his

appeal.

       {¶9}   In Anders, the United States Supreme Court outlined the proper steps to

be followed in this situation, including that “if counsel finds his client’s case to be wholly

frivolous, counsel should advise the court and request permission to withdraw; * * * the

request to withdraw must be accompanied by a brief referring to anything in the record

that might arguably support the appeal; [and] * * * counsel should furnish the indigent




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client with a copy of counsel’s brief, and time must be allowed for the client to raise any

points he chooses.” State v. Spears, 11th Dist. Ashtabula No. 2013-A-0027, 2014-

Ohio-2695, ¶ 5, citing Anders at 744. The appellate court must then conduct “a full

examination of all the proceedings, to decide whether the case is wholly frivolous.”

Anders at 744. “Only after this separate inquiry, and only after the appellate court finds

no nonfrivolous issue for appeal, may the court proceed to consider the appeal on the

merits without the assistance of counsel.” Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct.

346, 102 L.Ed.2d 300 (1988).

       {¶10} In his brief, appellate counsel raises one potential area for review which

may arguably support the appeal: “[w]hether the trial court committed prejudicial error in

sentencing the defendant to eighteen years in the penitentiary.” Counsel ultimately

concludes that this arguable error lacks merit and did not cause prejudice to Christian.

       {¶11} Regarding felony sentences in general, this court has applied the two-step

approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, which requires appellate courts to “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,” and, “[i]f this first prong is satisfied,

the trial court’s decision in imposing the term of imprisonment is reviewed under the

abuse-of-discretion standard.” State v. Cornelison, 11th Dist. Lake No. 2013-L-064,

2014-Ohio-2884, ¶ 6, citing Kalish at ¶ 26. Regarding consecutive sentences, however,

this court has determined that it must “clearly and convincingly find either * * * [t]hat the

record does not support the sentencing court’s findings * * * [or] [t]hat the sentence is

otherwise contrary to law.” Id. at ¶ 31-35, citing R.C. 2953.08(G)(2).




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       {¶12} In this case, a plea agreement was reached by the State and Christian. In

his written guilty plea, Christian waived a presentence investigation report and jointly

agreed with the State regarding his sentence, an 18-year prison term.               At the

sentencing hearing, both parties recommended that this be applied and 18 years was

exactly the sentence Christian received. As this court has noted, “[i]t is not the practice

of this court or any other appellate court to review sentences that are jointly agreed

upon by the state and the defendant.” (Citation omitted.) State v. Mills, 11th Dist.

Trumbull No. 2010-T-0055, 2011-Ohio-5110, ¶ 19. “Once a defendant stipulates that a

particular sentence is justified, the sentencing judge need not independently justify the

sentence.”   Id., citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829

N.E.2d 690, paragraph three of the syllabus.

       {¶13} Even if this were not the case, the transcript of the hearing and the Entry

on Sentence both show that the court stated it had considered the necessary

sentencing factors under R.C. 2929.11 and .12. Further, the individual sentences were

all within the statutory ranges for the offenses committed. See R.C. 2929.14(A)(1) and

(3).

       {¶14} The dissent asserts that there was a potential error regarding the merger

of allied offenses, an issue not raised by counsel in the Anders brief.

       {¶15} There was no assertion by any of the parties below that the charges

should merge.     The two Involuntary Manslaughter charges involved two separate

victims.   The Tampering with Evidence charge would have occurred as part of a

separate event, after the other crimes had been committed. Regarding the Involuntary

Manslaughter charges and the Aggravated Burglary charge, there also is nothing in the




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record to indicate that they should have merged.         See State v. Jackson, 2nd Dist.

Montgomery No. 24430, 2012-Ohio-2335, ¶ 138 (Aggravated Burglary did not merge

with Involuntary Manslaughter, “because the burglary was complete upon entry”)

(citation omitted); State v. Taylor, 8th Dist. Cuyahoga No. 95339, 2012-Ohio-99, ¶ 7 (the

conduct of committing the Burglary was complete upon entry into the home); State v.

Lewis, 11th Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶ 130-131 (where the conduct

needed to meet the elements of one crime was completed prior to the elements of the

other crime, the offenses were not allied).

       {¶16} Finally, counsel also notes that it can be argued that the trial court

improperly explained the availability of judicial release to Christian under R.C. 2929.20,

but asserts that this did not cause any prejudice.

       {¶17} As conceded by counsel, the trial court is not required to advise a

defendant of his eligibility for judicial release. State v. Mitchell, 11th Dist. Trumbull No.

2004-T-0139, 2006-Ohio-618, ¶ 14. While there was some confusion at the sentencing

hearing regarding Christian’s eligibility for judicial release, the statement that judicial

release “would not happen” was made by the prosecutor, not the court. The court noted

only that Christian had to serve the gun specification sentence prior to his other prison

term. Regardless, to the extent that counsel asserts this confusion did not have an

impact on Christian’s decision to accept the Rule 11 plea agreement, we concur.

       {¶18} Christian entered a written plea of guilty to the Bill of Information on March

3, 2010, which outlined his rights and his plea was accepted by the court at that time.

Pursuant to the May 1, 2013 Entry on Sentence, sentencing was then deferred until the

disposition of the co-defendants’ cases. The statement regarding Christian’s eligibility




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for judicial release made at sentencing had no impact on the entry and acceptance of

his plea over three years earlier.     A defendant must demonstrate that, “but for the

misrepresentation regarding judicial release, he would not have entered the plea.”

Mitchell at ¶ 15. It cannot be said that the confusion regarding the judicial release,

which occurred near the conclusion of the sentencing hearing, had any impact on

Christian’s entry of his plea.

       {¶19} Having reviewed the foregoing issues raised by counsel, as well as fully

examining the entire record of the proceedings in this case, we find no nonfrivolous

issues for appeal.

       {¶20} For the foregoing reasons, Christian’s appeal is without merit and wholly

frivolous. Appellate counsel’s motion to withdraw is granted. The judgment of the

Trumbull County Court of Common Pleas, sentencing Christian to a total of 18 years in

prison for Complicity to Involuntary Manslaughter, Aggravated Burglary, and Tampering

with Evidence, is affirmed. Costs to be taxed against appellant.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                     ______________________________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶21} I respectfully dissent.




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       {¶22} The majority holds that appellant’s appeal is without merit and wholly

frivolous. For the following reasons, I disagree.

       {¶23} Under the United States Constitution, there is no right to appeal, “as a

matter of right.” See Abney v. United States, 431 U.S. 651, 656 (1977) (holding that

there is no constitutional right to appeal; rather, the right to appeal in a criminal case is a

creature of statute). However, an appeal is a matter of right in criminal proceedings

under the Ohio Constitution. See State v. Awkal, 8th Dist. Cuyahoga Nos. 98532 and

98553, 2012-Ohio-3970, ¶2 (Blackmon, A.J.); Article IV, Sections 1, 2, and 3 of the Ohio

Constitution (appeal “as a matter of right”).

       {¶24} An appeal “as of right” is “[a]n appeal to a higher court from which

permission need not be first obtained.” Black’s Law Dictionary 74 (7th Ed.2000). In

Ohio, in addition to the Ohio Constitution, pursuant to statute, “a defendant who is

convicted of or pleads guilty to a felony may appeal as a matter of right.”               R.C.

2953.08(A). Thus, it logically follows that if an appeal is a matter of right in criminal

proceedings in Ohio, how can an appeal be frivolous?

       {¶25} Under this writer’s independent examination of the record, I find at least

two issues of arguable merit. Although I agree that the trial court sentenced appellant

within the applicable statutory ranges, one issue of arguable merit is whether appellant

should have been sentenced to a lesser term, even though the majority maintains that

the parties did not assert the merger point below. The trial court sentenced appellant to

a total of 18 years in prison. Although the court merged the firearm specifications, it did

not merge any of the counts contained in the bill of information.

       {¶26} H.B. 86 amended R.C. 2929.11 which now states in part:




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       {¶27} “(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” (Emphasis added.)

       {¶28} With respect to allied offenses of similar import, the Ohio Supreme Court

has recognized that a defendant is prejudiced by failure to merge allied offenses, as

both R.C. 2941.25 and the Double Jeopardy Clause prohibit multiple convictions for the

same conduct. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶26-31.

       {¶29} Multiple sentences should not be improperly “heaped” on a defendant, as

they amount to an undue burden on our already overcrowded prison system pursuant to

the principles and purposes of sentencing under R.C. 2929.11. See State v. Helms, 7th

Dist. Mahoning No. 08 MA 199, 2012-Ohio-1147, ¶68, quoting State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, ¶43, citing Maumee v. Geiger, 45 Ohio St.2d 238, 242

(1976) (“‘the purpose of R.C. 2941.25 is to prevent shotgun convictions, that is, multiple

findings of guilt and corresponding punishments heaped on a defendant for closely

related offenses arising from the same occurrence.’”)

       {¶30} Another issue of arguable merit is whether appellant’s guilty plea was

knowingly, voluntarily, and intelligently made. Pursuant to Crim.R. 11(C), all guilty pleas

must be knowing, voluntary, and intelligent. See State v. Porterfield, 11th Dist. Trumbull

No. 2010-T-0005, 2010-Ohio-4287, ¶10.




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       {¶31} In this case, appellate counsel concedes that the trial court erred in

confirming that appellant would be ineligible for early release.         However, appellate

counsel suggests that the error was harmless. Under R.C. 2929.20(C)(5), appellant, in

fact, is eligible to file for judicial release after serving one-half of his total prison term.

The trial court’s error on this point may have had an impact on appellant’s decision to

accept the Crim.R. 11 agreement.

       {¶32} This writer believes that Anders, and the majority’s application, essentially

creates a conundrum as no good solution evolves from such situation. On the one

hand, if appellant is successful in bringing an appeal, the panel has become biased

because they have already prejudged the case ex parte. Thus, the panel should not sit

on and determine the matter. On the other hand, if appellant is unsuccessful in bringing

an appeal, he is denied his rights to counsel and to an appeal, as a matter of right.

       {¶33} Therefore, although I agree with granting Attorney Jay Blackstone’s

motion to withdraw as he has satisfied his duties under Anders, I believe that new

appellate counsel must be appointed to pursue this appeal before a different panel.

Thus, I would direct newly appointed counsel to prepare an appellate brief discussing

the arguable issues identified herein and any further arguable issues which may be

found in the record.

       {¶34} Accordingly, I respectfully dissent.




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