[Cite as State v. Back, 2020-Ohio-451.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
RICKIE BACK,                                 :       Case No. 2019-COA-028
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Ashland County
                                                     Court of Common Pleas, Case No.
                                                     19-CRI-045




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    February 10, 2020




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER R. TUNNELL                               RUTH R. FISCHBEIN-COHEN
Ashland County Prosecuting Attorney                  3552 Severn Road
                                                     Cleveland, Ohio 44118
By: COLE F. OBERLI
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, Ohio 44805
Ashland County, Case No. 2019-COA-028                                              2


Baldwin, J.

      {¶1}    Defendant-appellant Rickie Back appeals from the July 3, 2019 Judgment

Entry-Sentencing of the Ashland County Court of Common Pleas. Plaintiff-appellee is the

State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

      {¶2}    On February 15, 2019, the Ashland County Grand Jury indicted appellant

on two counts of non-support of dependents in violation of R.C. 2919.21, felonies of the

fifth degree. At his arraignment on March 19, 2019, appellant entered a plea of not guilty

to the charges.

      {¶3}    Thereafter, on May 31, 2019, appellant withdrew his former not guilty plea

and entered a plea of guilty to Count One. The trial court granted appellee’s motion to

dismiss the remaining count. As memorialized in a Judgment Entry-Sentencing filed on

July 3, 2019, appellant was sentenced to nine months in prison.

      {¶4}    Appellant now raises the following assignments of error on appeal:

      {¶5}    “I. THE DEFENDANT DID NOT MAKE THE WITHIN PLEA KNOWINGLY

AND INTELLIGENTLY AS REQUIRED UNDER CRIMINAL RULE 11.”

      {¶6}    “II. IT WAS ERROR TO IMPOSE THE WITHIN SENTENCE IN

DEROGATION OF R.C. 2929.11.”

                                            I

      {¶7}    In his first assignment of error, Appellant argues that his no contest plea

was not made knowingly, intelligently or voluntarily. We disagree.
Ashland County, Case No. 2019-COA-028                                               3


        {¶8}    Appellant specifically contends that his plea was not made knowingly and

intelligently because he was on medications for anxiety and depression at the time of the

plea hearing.

        {¶9}    “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660

N.E.2d 450; see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 7. To that end, Crim.R. 11 sets forth certain constitutional and procedural

requirements with which a trial court must comply prior to accepting a guilty or no contest

plea.

        {¶10} Crim.R. 11(C) states, in relevant part, as follows:

        {¶11} (C) Pleas of Guilty and No Contest in Felony Cases…..

        {¶12} (2) In felony cases the court may refuse to accept a plea of guilty or a plea

of no contest, and shall not accept a plea of guilty or no contest without first addressing

the defendant personally and doing all of the following:

        {¶13} (a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved, and if

applicable, that the defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.

        {¶14} (b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.
Ashland County, Case No. 2019-COA-028                                               4


         {¶15} (c) Informing the defendant and determining that the defendant understands

that by the plea the defendant is waiving the rights to jury trial, to confront witnesses

against him or her, to have compulsory process for obtaining witnesses in the defendant's

favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt

at a trial at which the defendant cannot be compelled to testify against himself or herself.

         {¶16} A determination of whether a plea is knowing, intelligent, and voluntary is

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

130, 595 N.E.2d 251. 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, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

         {¶17} In the case sub judice, the trial court complied with Crim.R. 11. After

appellant advised the trial court that he was taking medication for depression and anxiety,

the following discussion took place on the record:

         {¶18} THE    COURT:     Are    you   taking   medications,   over-the-counter   or

prescriptions?

         {¶19} MR. BACK: Prescriptions.

         {¶20} THE COURT: What would that be?

         {¶21} MR. BACK: Cholesterol, high blood, depression, anxiety, that is about it I

think.

         {¶22} THE COURT: Do any of those prescription medications impair your ability

to comprehend or understand things?

         {¶23} MR. BACK: No, no, sir.
Ashland County, Case No. 2019-COA-028                                             5


      {¶24} THE COURT: Are there any prescription medications that you are supposed

to [SIC] taking but which you are not?

      {¶25} MR. BACK: No, sir.

      {¶26} THE COURT: And have you ever been determined by any court to be

mentally incompetent or incapable of handling your own affairs?

      {¶27} MR. BACK: No, sir.

      {¶28} THE COURT: Then the record should reflect that Mr. Back appears to be

mature alert and reasonably educated, not under the adverse influence of any alcoholic

beverages or drugs, and fully capable of understanding today’s proceeding’s.

      {¶29} Transcript of plea hearing at 5-6. When asked if he was entering the plea

voluntarily and under his own free will, appellant indicted that he was. In addition,

appellant acknowledged that he signed a written waiver and plea of guilty document.

      {¶30} We further find that there is no evidence in the record supporting appellant’s

assertion that he was “mentally incapable of fully understanding the plea discussion and

discourse” due to prescription medication.

      {¶31} Appellant’s first assignment of error is, therefore, overruled.

                                             II

      {¶32} Appellant, in his second assignment of error, contends that the trial court in

this matter imposed a sentence that was more than necessary to accomplish the

purposes of sentencing in derogation of R.C. 2929.11.

      {¶33} R.C. 2953.08(G)(2) sets forth the standard of review for all felony

sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231 ¶ 1.

Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or
Ashland County, Case No. 2019-COA-028                                                 6


otherwise modify a sentence * * * or may vacate the sentence and remand the matter to

the sentencing court for resentencing” if the court finds by clear and convincing evidence

“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the

sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)–(b). “An appellate court will

not find a sentence clearly and convincingly contrary to law where the trial court considers

the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly imposes postrelease control, and sentences the defendant within the permissible

statutory range.” State v. Hall, 5th Dist. Richland No. 15CA112, 2017–Ohio–592, ¶ 9,

citing State v. Ahlers, 12th Dist. Butler No. CA2015–06–100, 2016–Ohio–2890, ¶ 8, and

State v. Moore, 12th Dist. Clermont No. CA2014–02–016, 2014–Ohio–5191, ¶ 6.

       {¶34} R.C. 2929.11 governs the overriding purposes of felony sentencing and

states, in relevant part, as follows:

       (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. To achieve

       those purposes, the sentencing court shall consider the need for

       incapacitating the offender, deterring the offender and others from future

       crime, rehabilitating the offender, and making restitution to the victim of the

       offense, the public, or both.
Ashland County, Case No. 2019-COA-028                                                 7


       (B)    A sentence imposed for a felony shall be reasonably calculated to

       achieve the three overriding purposes of felony sentencing set forth in

       division (A) of this section, commensurate with and not demeaning to the

       seriousness of the offender's conduct and its impact upon the victim, and

       consistent with sentences imposed for similar crimes committed by similar

       offenders.

       {¶35} R.C. 2929.12 lists general factors which must be considered by the trial

court in determining the sentence to be imposed for a felony, and gives detailed criteria

which do not control the court's discretion but which must be considered for or against

severity or leniency in a particular case. The trial court retains discretion to determine the

most effective way to comply with the purpose and principles of sentencing as set forth in

R.C. 2929.11. R.C. 2929.12.

       {¶36} Among the various factors that the trial court must consider and balance

under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the

victim as a result of the offense; (2) whether the offender has a history of criminal

convictions; (3) whether the offender has not responded favorably to sanctions previously

imposed by criminal convictions; and (4) whether the offender shows genuine remorse

for the offense. R.C. 2929.12.

       {¶37} In the case sub judice, the trial court sentenced appellant to nine months

incarceration for a violation of R.C. 2919.21(A), which was within the permissible statutory

range. The trial court, both on the record and in its Entry, stated that it had considered the

purposes of felony sentencing as set forth in R.C. 2929.11 and the provisions of R.C.

Chapter 2929. In sentencing appellant, the trial court took into consideration appellant’s
Ashland County, Case No. 2019-COA-028                                              8


criminal history and his high ORAS score and also stated that appellant had “terror[ized]

the family in an effort to get then to stop pursuing support” and that this was “a more

severe nature of the offense.” Transcript of sentencing hearing at 8.

       {¶38} Based on the foregoing, we find that the trial court considered the principles

and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, and

sentenced appellant within the permissible statutory range .

       {¶39} Appellant’s second assignment of error is, therefore, overruled.

       {¶40} Accordingly, the judgment of the Ashland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
