State v. Watson

[Cite as State v. Watson, 2024-Ohio-504.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

STATE OF OHIO, CASE NOS. 2023-P-0056

2023-P-0057

Plaintiff-Appellee,

Criminal Appeals from the

- vs - Court of Common Pleas

MICHAEL A. WATSON a.k.a.

MICHEAL A. WATSON, Trial Court Nos. 2022 CR 00471

2023 CR 00456

Defendant-Appellant.

OPINION

Decided: February 12, 2024

Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,

OH 44266 (For Plaintiff-Appellee).

Eric R. Fink, 11 River Street, Kent, OH 44240 (For Defendant-Appellant).

ROBERT J. PATTON, J.

{¶1} Appellant, Michael A. Watson, appeals his sentence for domestic violence

and the revocation of community control sanctions from the Portage County Court of

Common Pleas. Appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating there are no meritorious issues

for appeal and thus, these matters are wholly frivolous. After independent review of the

record, we agree with appellate counsel. The judgment of the trial court is affirmed, and

appellate counsel's motion to withdraw is granted.

{¶2} On April 28, 2022, the Portage County grand jury indicted appellant on one

count of domestic violence, a third-degree felony, in violation of R.C. 2919.25(A), in Case

No. 2022 CR 471. Appellant entered a not guilty plea at arraignment and bond was set at

$20,000 cash or surety, with the condition that appellant have no contact with the victim.1

The trial court also granted a temporary protection order.

{¶3} On August 5, 2022, pursuant to a plea agreement, appellant entered a plea

of guilty to an amended indictment of domestic violence, a fourth-degree felony. At the

plea hearing, the court advised appellant of the rights he waives by pleading guilty. The

court advised appellant of his right to a jury trial, the State’s burden of proof, his right to

cross-examine and confront witnesses, to call his own witnesses, to testify on his own

behalf as well as his limited appellate rights. Appellant was asked if he understood the

rights as explained by the trial court and he replied affirmatively. These rights were also

detailed in the written plea of guilty signed by appellant and his counsel. The trial court

concluded that appellant knowingly and voluntarily waived his rights and accepted his

guilty plea. The trial court ordered a pre-sentence investigation and reinstated bond. The

trial court lifted the temporary protection order at the victim’s request.

{¶4} Sentencing was held on October 11, 2022. At sentencing, the victim

requested that the temporary protection order be reinstated. Due to appellant’s placement

at Oriana House, a term and condition of probation in a separate and unrelated case, the

1. The transcripts from the arraignment indicate the trial court imposed a cash or surety bond, however,

according to the docket, there were two separate bond filings, the second of which, indicate a $20,000

personal recognizance bond was ordered.

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trial court placed appellant on community control for three years with conditions.2 The trial

court further issued a no contact order as a condition of appellant’s community control.

{¶5} On December 14, 2022, a Motion to Revoke and Capias Request was filed

in the 2022 case. A capias was issued for appellant’s arrest the same day.

{¶6} On April 27, 2023, the Portage County Grand Jury returned a two-count

indictment charging appellant with domestic violence, a third-degree felony, in violation

of R.C. 2919.25(A), and violation of a protection order, a third-degree felony, in violation

of R.C. 2919.27. This case involved the same victim as the 2022 case. Appellant entered

a not guilty plea at arraignment and bond was set at $50,000, 10% cash or surety. The

trial court once again issued a no contact order as a condition of bond.

{¶7} On June 5, 2023, pursuant to a plea agreement, appellant entered a guilty

plea to domestic violence, a third-degree felony, as charged in the indictment. The State

dismissed the remaining count.

{¶8} At the plea hearing, the court advised appellant of the rights he waived by

pleading guilty. The court advised appellant of his right to a jury trial, the State’s burden

of proof, his right to cross-examine and confront witnesses, to call his own witnesses, and

to testify on his own behalf. Appellant was asked if he understood the rights as explained

by the trial court and he replied affirmatively.3 These rights were also detailed in the

written plea of guilty signed by appellant and his counsel. The trial court concluded that

appellant knowingly and voluntarily waived his rights and accepted his guilty plea. The

2. At the sentencing hearing, the trial court indicated that appellant would be sentenced to community

control and also imposed a prison term of 6-18 months which the trial court suspended. The sentencing

entry does not reflect this. The trial court reiterated the suspended sentence, however, at the revocation

hearing.

3. At the July 17, 2023 sentencing hearing, appellant claimed he could not read or write.

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trial court ordered a pre-sentence investigation and assessments for NEOCAP and Root

House. The court further indicated that the motion to revoke community control, pending

in the 2022 case, would be addressed at sentencing.

{¶9} A sentencing hearing was held on the 2023 domestic violence conviction as

well as the community control violation in the 2022 case on July 17, 2023. The trial court

sentenced appellant to 24 months on the 2023 case, and 18 months on the community

control violation in the 2022 case. The court ordered the sentences to be served

consecutively to each other for an aggregate prison term of 42 months.

{¶10} Appellant timely appeals. On October 17, 2023, counsel filed appellant’s

brief pursuant to Anders, supra, asserting that no meritorious issues upon which to base

an appeal exist after a thorough review of the record. Appellate counsel requested to

withdraw and set forth the following potential assignments of error:

[1]. “In either or both the 2022 or 2023 case, the defendant-

appellant’s plea was not knowingly, intelligently, or voluntarily

entered into and is therefore contrary to law.”

[2]. “The trial court’s imposition of consecutive sentences is

contrary to law.”

[3]. “The trial court violated Mr. Watson’s due process rights

when it revoked Mr. Watson’s probation without obtaining a

waiver from Mr. Watson or conducting an evidentiary

hearing.”

{¶11} The Supreme Court of the United States has held that if appellate counsel,

after a conscientious examination of the record, finds an appeal to be wholly frivolous, he

or she should advise the court and request permission to withdraw. Anders at 744.

Counsel’s request to withdraw must also include a brief which cites anything in the record

that could arguably support the appeal. Id. Counsel is required to provide his or her client

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with a copy of the brief and his or her request to withdraw and give the client an

opportunity to raise any other issues. Id. When these conditions have been met, the

appellate court will review the entire record to determine whether the appeal is wholly

frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant counsel’s

motion to withdraw and proceed to a decision on the merits. Id. If, however, the court

concludes the appeal is not frivolous, it must appoint new counsel for the client. Id. Accord

State v. Pal, 11th Dist. Ashtabula No. 2021-A-0007, 2021-Ohio-3706, ¶ 14.

{¶12} On November 17, 2023, this Court granted appellant thirty (30) days “to file

his own submission, if he so chooses, which raises any arguments in support of the

appeals.” This Court held counsel's request to withdraw in abeyance. Appellant has not

filed any further brief or memorandum in support of his appeal. As there is no requirement

to respond, the State did not file an brief. Accordingly, we proceed to conduct an

independent review of the record pursuant to Anders.

{¶13} In his first potential assignment of error, appellate counsel argues that

“defendant-appellant’s plea was not knowingly, intelligently, or voluntarily entered into and

is therefore contrary to law.”

{¶14} “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. Fedyszyn, 11th Dist. Portage No. 2023-P-0035, 2023-

Ohio-4267, ¶ 10, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

Crim.R. 11 outlines the procedure a trial court must follow before accepting guilty pleas.

State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 9.

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{¶15} Crim.R. 11(C)(2) provides, in relevant part:

In felony cases the court * * * shall not accept a plea of guilty

* * * without first addressing the defendant personally * * * and

doing all of the following:

(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.

(b) Informing the defendant of and determining that the

defendant understands the effect of the plea of guilty * * *, and

that the court, upon acceptance of the plea, may proceed with

judgment and sentence.

(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 review of the plea hearing transcripts demonstrates that the trial court

engaged in a plea colloquy with appellant in both cases and fully complied with Crim.R.

11(C)(2). Appellant’s pleas were knowingly, voluntarily, and intelligently made. We find

no meritorious claims as to the pleas. The potential assignment of error is without merit.

{¶16} In his second potential assignment of error, appellate counsel argues that

“the imposition of consecutive sentences was contrary to law.”

{¶17} The trial court sentenced appellant to 24 months on the 2023 case and upon

revoking his community control, the court imposed an 18-month sentence in the 2022

case. The court ordered the sentences to be served consecutively to each other for an

aggregate prison term of 42 months.

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{¶18} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court.” R.C. 2953.08(G)(2). The appellate court “may vacate the sentence and remand

the matter to the sentencing court for resentencing[,] * * * if it clearly and convincingly

finds * * * the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).

{¶19} There is a statutory presumption in favor of concurrent sentences. R.C.

2929.41(A). However, R.C. 2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the

offender to serve the prison terms consecutively if the court

finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of

the following:

(a) The offender committed one or more of the multiple

offenses while the offender was awaiting trial or sentencing,

was under a sanction imposed pursuant to section 2929.16,

2929.17, or 2929.18 of the Revised Code, or was under post-

release control for a prior offense.

(b) At least two of the multiple offenses were committed as

part of one or more courses of conduct, and the harm caused

by two or more of the multiple offenses so committed was so

great or unusual that no single prison term for any of the

offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the

public from future crime by the offender.

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{¶20} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, ¶ 37. Additionally, “as long as the reviewing court can discern that the trial

court engaged in the correct analysis and can determine that the record contains

evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.

In other words, “‘if the court has properly made the required findings in order to impose

consecutive sentences, we must affirm those sentences unless we “clearly and

convincingly” find “[t]hat the record does not support the court's findings[.]”’” State v.

Haynes, 11th Dist. Lake No. 2022-L-009, 2022-Ohio-4464, ¶ 48, quoting State v. Venes,

2013-Ohio-1891, 992 N.E.2d 453, ¶ 19 (8th Dist.), quoting R.C. 2953.08(G)(2)(a). See

State v. Passalacqua, 11th Dist. Lake No. 2023-L-013, 2023-Ohio-3525, ¶ 28.

{¶21} During the sentencing hearing, the trial court stated:

* * * You have numerous domestic violence charges, a

number of convictions, along with certainly other violent

offenses. So, I am going to find that you are not amenable to

community control sanctions and that a prison sentence is

consistent with the purposes and principles of sentencing. * *

* I’m finding that consecutive sentences are necessary to

protect the public from future crime, to punish you, and are not

disproportionate to the seriousness of your conduct. I am

specifically finding that this offense was committed while you

were on community control and that qualifies for consecutive

sentencing.

{¶22} These findings were incorporated in the sentencing entry. Therefore, the

trial court’s imposition of consecutive sentences complies with R.C. 2929.14(C)(4).

Accordingly, appellant’s second potential assignment of error is without merit.

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{¶23} In his third and final potential assignment of error, appellate counsel asserts

that “[t]he trial court violated [appellant]’s due process rights when it revoked [appellant]’s

probation without obtaining a waiver from [appellant] or conducting an evidentiary

hearing.”

{¶24} This Court discussed in State v. Wright, 11th Dist. Ashtabula No. 2021-A-

0029, 2022-Ohio-2100, ¶ 14:

‘[A] revocation of community control punishes the failure to

comply with the terms and conditions of community control,

not the specific conduct that led to the revocation.’ State v.

Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, ¶17.

Crim.R. 32.3, which governs revocation of community control,

provides that the trial court ‘shall not impose a prison term for

violation of the conditions of a community control sanction or

revoke probation except after a hearing at which the

defendant shall be present and apprised of the grounds on

which action is proposed.’

{¶25} “Community control violation proceedings are not equivalent to criminal

prosecutions.” Black, supra, at ¶ 12. “Nevertheless, a defendant is entitled to certain due

process protections before a court may revoke community-control sanctions.” Wright at ¶

15.

{¶26} “First, a defendant is entitled to a preliminary hearing to determine whether

there is probable cause to believe that the defendant has violated the terms of his or her

community control.” (Citations omitted). Id. “Second, due process requires a final hearing

to determine whether community control should be revoked.” Id.

{¶27} Appellate counsel alleges that “neither [appellant] nor his [trial] counsel ever

specifically waived [appellant]’s right to [a full] hearing.” In other words, appellant argues

that the second prong was not met.

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{¶28} At the plea hearing, the trial court, after accepting appellant’s plea in the

2023 case, stated: “* * * Did we address the -- we didn't address the Motion to Revoke

yet. We can do that at sentencing if you want.” Appellant’s counsel replied, “Yes, Judge.

Thank you.” However, in its June 7, 2023 entry, the trial court noted that a hearing on the

motion to modify sanctions was held, and the trial court determined that appellant violated

the terms of his community control sanctions imposed in the 2022 case. The court set the

matter for sentencing with the 2023 case.

{¶29} It is well established that a court speaks through its journal entries. State v.

Liddy, 2022-Ohio-4282, 202 N.E.3d 172, ¶ 64 (11th Dist.), citing State v. Miller, 127 Ohio

St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12, Schenley v. Kauth, 160 Ohio St. 109,

111, 113 N.E.2d 625 (1953). Here, the trial court noted that a hearing occurred wherein

the trial court determined that appellant violated the terms of community control.

{¶30} As such, the record does not support a due process violation. Appellant

entered a guilty plea to domestic violence, an offense committed while on community

control sanctions. This admission is a violation of the terms of the community control

sanctions imposed by the trial court in the 2022 case. Appellant’s third assignment of

error is without merit.

{¶31} After an independent and thorough review of the record, we find that there

are no arguable issues requiring the appointment of new appellate counsel.

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{¶32} For the foregoing reasons, appellant’s instant appeals are wholly frivolous.

The judgment of the Portage County Court of Common Pleas is affirmed. It is further

ordered that the motion to withdraw as counsel for appellant filed by Attorney Eric R. Fink

is hereby granted.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

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