[Cite as State v. Chatman,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25766 Plaintiff-Appellee : : Trial Court Case No. 12-CR-291 v. : : FRANK CHATMAN, JR. : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 17th day of January, 2014.

...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MICHAEL H. HOLZ, Atty. Reg. #0031902, 507 Wilmington Avenue, Suite 2, Dayton, Ohio 45420 Attorney for Defendant-Appellant

.............

HALL, J.,

{¶ 1} Defendant-appellant Frank Chatman, Jr. appeals from his convictions and 2

sentences on three of the six charges upon which he was indicted: having a weapon under

disability (Count Three), felonious assault on a peace officer (Count Four), and vandalism (Count

Five). Chatman entered guilty pleas to these offenses, and the remaining counts in the indictment

were dismissed by the prosecutor. Chatman’s assigned counsel has filed a brief under Anders v.

California,

,

,

(1967), indicating that he has not found

any assignments of error having arguable merit.

{¶ 2} We notified Chatman of the Anders filing and advised him of his right to file his

own brief. He has not done so.

The Course of Proceedings

{¶ 3} A jury trial had been scheduled to begin on Monday, January 7, 2013. At a final

pretrial conference on Friday, January 4, 2013, the defendant entered guilty pleas to the three

enumerated charges with a negotiated sentence of seven years in prison, which included five of

those years being mandatory because of his prior convictions of felonies of the first or second

degree. On January 17, 2013, Chatman filed a pro se “motion to withdrawal [sic] of guilty plea.”

New counsel was appointed. An evidentiary hearing on the motion was conducted on March 1,

2013. By decision and entry filed April 17, 2013, the trial court overruled the motion to

withdraw. On May 16, 2013, the defendant was sentenced to seven years in prison, five of which

were mandatory, in compliance with the plea agreement.

No Potential Assignments of Error Have Arguable Merit

{¶ 4} In his brief, assigned counsel identifies five potential assignments of error but

concludes that they lack arguable merit. The first is that “[t]he Defendant’s guilty plea was not

given knowingly, voluntarily and intelligently.” We view this issue from the perspective of the 3

record of the plea itself, unaffected by the subsequent motion-to-withdraw hearing, because that

latter issue is further addressed in the fifth potential assignment of error.

{¶ 5} The record indicates that the trial court scrupulously conducted a comprehensive

plea colloquy with the defendant. Twice the defendant indicated that his pleas were voluntary.

(Plea Tr. at 13 & 21). At the conclusion, the trial court found that Chatman entered his pleas

voluntarily and that he knowingly, voluntarily, and intelligently waived his constitutional rights.

(Id. at 21). As counsel indicated, “The entire colloquy was in painstaking detail.” (Brief at 2). The

record contains no reasonable basis whatsoever to argue that the plea was anything other than

knowingly, voluntarily, and intelligently given. The first potential assignment of error has no

arguable merit.

{¶ 6} The second potential assignment of error reads: “The court, before accepting

Defendant’s guilty plea, did not follow Criminal Rule 11.” Counsel’s only explanation of this

potential error is that the trial court did not “ask the defendant what his formal education level

was[.]” (Brief at 5). Counsel also notes, however, that “nothing in the Criminal Rules requires

such an inquiry.” (Id.). We agree. Moreover, absolutely nothing in the plea colloquy indicates a

lack of understanding. Chatman repeatedly indicated that he understood the concepts the trial

court explained to him. More than once, he indicated he had no questions. There simply is no

reasonable basis whatsoever to argue that the mandatory requirements of Crim.R. 11 were not

followed. The second potential assignment of error has no arguable merit.

{¶ 7} The third potential assignment of error states: “The Defendant received

ineffective assistance of counsel.” The basis for this potential error appears to be trial counsel’s

involvement in negotiation of the seven-year plea deal. A claim of ineffective assistance of trial 4

counsel requires both a showing that trial counsel's representation fell below an objective

standard of reasonableness and that the defendant was prejudiced as a result. Strickland v.

Washington,

,

,

(1984). A reviewing court “must

indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.”

. The prejudice prong requires a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is “a probability sufficient to undermine confidence in the outcome.”

. However, “an attorney's advice to take a plea deal is not ineffective assistance of counsel.”

See State v. Shugart, 7th Dist. Mahoning No. 08 MA 238,

, ¶ 37. There is

nothing in the record before us to support an argument that counsel was ineffective by negotiating

and participating in Chatman’s acceptance of the deal. Accordingly, the third potential

assignment of error has no arguable merit.

{¶ 8} The fourth potential assignment of error alleges that “[t]he sentence imposed was

contrary to law or an abuse of discretion.” Assigned counsel acknowledges that the sentence is

not contrary to law. We cannot conceive of any reasonable argument that the sentence is

unlawful. We further note that an agreed sentence is not appealable pursuant to R.C. 2953 .08(D),

which states that “[a] sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the defendant and

the prosecution in the case, and is imposed by a sentencing judge.” Chatman’s

jointly-recommended, agreed sentence is authorized by law and, therefore, is not reviewable on

appeal. Accordingly, the fourth potential assignment of error has no arguable merit. [Cite as State v. Chatman,

.] {¶ 9} The fifth potential assignment of error states: “The court erred when it refused to

set aside Defendant’s January 4 guilty plea.” In State v. Hess, 2d Dist. Montgomery No. 24453,

, we said:

“A defendant does not have an absolute right to withdraw his plea, even if

the motion is made prior to sentencing. State v. Xie,

,

(1992), paragraph one of the syllabus. Instead, the decision of whether

to grant or deny a motion to withdraw a plea rests within the sound discretion of

the trial court.

at paragraph two of the syllabus. A trial court does not abuse its

discretion in denying a motion to withdraw a plea when: (1) the accused is

represented by competent counsel; (2) the accused was afforded a full Crim.R. 11

hearing before he entered his plea; (3) the accused is given a complete, impartial

hearing on the motion to withdraw; and (4) the court gave full and fair

consideration to the request to withdraw.”

Id. at ¶ 18, quoting State v. Peterseim,

,

(8th Dist. 1980),

paragraph three of the syllabus. At times, we have added five more factors to consider. Those

factors, which were set forth in State v. Fish,

,

(1st

Dist. 1995), include: (5) whether the motion was made within a reasonable time, (6) whether the

motion sets out specific reasons for withdrawal, (7) whether the accused understood the nature of

the charges and possible penalties, (8) whether the accused was perhaps not guilty or had a

complete defense, and (9) whether the state is prejudiced by withdrawal of the plea.

;

see also State v. Preston, 2d Dist. Montgomery No. 25393,

.

{¶ 10} Out of all the possible factors to evaluate, only two could have relevance to

support withdrawal of Chatman’s pleas. They are (5) whether the motion was made within a 6

reasonable time and (6) whether there was a reason for withdrawal. Chatman’s motion was made

within a reasonable time, but that factor alone is insufficient, as a matter of law, to support

withdrawal of a plea. Standing alone, it would be frivolous to raise on appeal.

{¶ 11} With regard to whether there was a reason for withdrawal, the reasons Chatman

gave in his motion and in his testimony at the hearing were that he essentially was pressured into

entering his pleas and, therefore, the pleas were involuntary. However, in its comprehensive

decision overruling Chatman’s motion, the trial court more than once found that he “falsely

testified.” The trial court concluded:

“In his testimony, Chatman articulated four reasons in support of his

motion to withdraw his guilty pleas: (1) Attorney Swift never contacted a

potential witness, Eric Daugherty, who had been a passenger in Chatman’s car. (2)

Attorney Swift never talked to him prior to the January 4 plea hearing about

entering a guilty plea to any of the charges. (3) Attorney Swift was not prepared to

proceed to trial on January 7, 2013. (4) His guilty pleas on January 4 were

involuntary.

This Court has considered all four reasons and found all them (sic) to be

untrue.

(Decision and Entry pg. 23).

{¶ 12} The question for us to resolve in an Anders appeal is not whether an appellant

inevitably will fail in his appeal, as is apparent here. The question is whether even raising a

particular issue has arguable merit or whether it is frivolous. Given the trial court’s findings and

the record before us, no reasonable argument can be made that the trial court’s denial of the 7

motion to withdraw constitutes reversible error. Accordingly, the fifth potential assignment of

error has no arguable merit.

{¶ 13} We have performed our duty under Anders to conduct an independent review of

the record. We thoroughly have reviewed the various filings, the written transcript of the plea

colloquy, the transcript of the withdrawal hearing, and a video recording of the plea, which was

introduced as an exhibit at the withdrawal hearing. We have found no non-frivolous issues for

review.

{¶ 14} The judgment of the Montgomery County Common Pleas Court is affirmed.

.............

FROELICH, P.J., and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck Carley J. Ingram Michael H. Holz Hon. Dennis J. Langer