[Cite as State v. Warren, 2017-Ohio-141.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-16-1079

        Appellee                                 Trial Court No. CR0201502009

v.

Melvin Warren                                    DECISION AND JUDGMENT

        Appellant                                Decided: January 13, 2017

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Frank H. Spryszak, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Melvin Warren, appeals the March 17, 2016 judgment

of the Lucas County Court of Common Pleas which, after finding him guilty of

complicity to commit involuntary manslaughter following his plea pursuant to North
Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162, 91 S.Ct. 160 (1970), sentenced him to

ten years of imprisonment. Based on the reasons set forth herein, we affirm.

       {¶ 2} A brief recitation of the facts is as follows. On June 25, 2015, appellant was

charged with one count of aggravated murder, R.C. 2903.01(B), in connection with the

August 17, 1981 death of Mark Wiler in Toledo, Lucas County, Ohio. On March 11,

2016, pursuant to an agreement with the state, appellant was charged by information on

one count of complicity to involuntary manslaughter. The agreement further provided

that appellant would waive the statute of limitations issue and be sentenced under the

current sentencing structure (with lower maximum penalties.) Following the March 14,

2016 combined plea and sentencing hearing the murder count was dismissed, appellant

was sentenced, and this appeal followed.

       {¶ 3} In his brief, under procedures announced in Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel indicates that he has thoroughly

examined the record, discussed the case with appellant, and is unable to find meritorious

grounds for appeal. Following Anders procedure, appellate counsel filed a brief setting

forth potential grounds for appeal and also filed a request to withdraw as counsel.

       {¶ 4} Counsel notified appellant of his inability to find meritorious grounds for

appeal and provided appellant with copies of both the Anders brief and his motion to

withdraw. Counsel advised appellant of his right to file his own appellate brief.

Appellant has not filed an additional brief.




2.
       {¶ 5} In his Anders brief, appellant’s counsel has asserted three potential

assignments of error:

               I. The trial court did not comply with the directives of R.C. 2929.11

       and 2929.12 in sentencing appellant to ten years in the Ohio Department of

       Rehabilitation and Corrections.

               II. The trial court erred to the prejudice of appellant by imposing

       consecutive sentences without making judicial findings under R.C.

       2929.14(C)(4).

               III. Appellant received ineffective assistance of counsel in violation

       of his rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, § 10 of the Constitution of the State of

       Ohio.

       {¶ 6} In appellant’s counsel’s first and second potential assignments of error he

contends that appellant’s sentence was contrary to law in that the court failed to consider

his level of involvement as a mitigating factor, R.C. 2929.12, and by imposing a

consecutive sentence failed to punish the offender using the minimum sanctions, R.C.

2929.11(A). We disagree.

       {¶ 7} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, we

recognized that the abuse of discretion standard in State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, though no longer controlling, still can provide

guidance for determining whether a felony sentence is clearly and convincingly contrary




3.
to law. Id. at ¶ 15. Kalish determined that a sentence was not clearly and

convincingly contrary to law in a scenario in which it found that the trial court had

considered the R.C. 2929.11 purposes and principles of sentencing, had considered the

R.C. 2929.12 seriousness and recidivism factors, had properly applied postrelease

control, and had imposed a sentence within the statutory range. Id., Kalish at ¶ 18.

       {¶ 8} In sentencing appellant, the trial court stated that it considered the facts of

the case and appellant’s criminal history. The court then indicated that it considered the

purposes of sentencing under R.C. 2929.11, as well as the seriousness and recidivism

factors under R.C. 2929.12. Thus, we conclude that appellant’s level of involvement was

properly considered by the court.

       {¶ 9} Appellant also contends that his consecutive sentence is contrary to law.

Ordering that the sentence be served consecutive to the imprisonment term appellant was

currently serving, the court stated:

              Now I do find it necessary to make this sentence consecutive, that is

       both to protect the public from future crime. Your history of criminal

       conduct is extensive. It is also appropriate punishment for your behavior in

       this case.

              It is not disproportionate to the seriousness of your conduct or to the

       danger that you pose to the community.

              I do find that also that the harm caused was so great or unusual that

       no single prison term for your conduct along the way is appropriate and that




4.
       for any of the offenses that as part of any course of conduct would have

       adequately reflected the seriousness of your conduct.

              And also as I stated your criminal history requires consecutive

       sentences.

       {¶ 10} Appellant was also given mandatory postrelease control and appeal

notifications and the costs of prosecution were waived. In the court’s March 17, 2016

judgment entry, it made similar findings and specifically referenced R.C. 2929.11,

2929.12 and 2929.14(C)(4).

       {¶ 11} Based on the foregoing, we find that the trial court complied with the

felony sentencing statutes in sentencing appellant to a ten-year consecutive sentence.

Accordingly, appellant’s counsel’s first and second potential assignments of error are not

well-taken.

       {¶ 12} In his third potential assignment of error, appellant’s counsel argues that

appellant was denied the effective assistance of trial counsel. Specifically, counsel

contends that appellant’s trial counsel failed to preserve appeal issues by withdrawing

appellant’s motion to suppress.

       {¶ 13} To establish ineffective assistance of counsel, an appellant must

demonstrate “(1) deficient performance of counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,




5.
citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland at 694.

       {¶ 14} As stated during the hearing, as part of the negotiated plea agreement

appellant first agreed to be charged with complicity to involuntary manslaughter by

information. The state then agreed to dismiss the aggravated murder charges. Also as

part of the plea agreement, appellant agreed to withdraw his motion to suppress.

       {¶ 15} Reviewing the record of the proceedings below, we find that appellant was

represented vigorously and counsel was able to secure a greatly reduced potential

maximum jail sentence. Further, during the plea hearing, appellant indicated that he had

ample time to discuss the plea with his counsel and that he was satisfied with counsel’s

advice and competence. Accordingly, we reject appellant’s counsel’s third potential

assignment of error.

       {¶ 16} Upon our own independent review of the record as required by Anders, we

find no other grounds for a meritorious appeal. This appeal is, therefore, found to be

without merit and is wholly frivolous. Appellant’s counsel’s motion to withdraw is found

well-taken and is granted. The judgment of the Lucas County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. The

clerk is ordered to serve all parties with notice of this decision.


                                                                       Judgment affirmed.




6.
                                                                      State v. Warren
                                                                      C.A. No. L-16-1079




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




7.
