[Cite as State v. Morris,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 19 CAA 12 0069 DAVID R. MORRIS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Court of Common Pleas, Case No. 18 CR 1 08 0460

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 19, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER BALLARD APRIL CAMPBELL Assistant Prosecuting Attorney 545 Metro Place South, 145 N. Union Street, 3rd Floor Suite 100 Delaware, OH 43015 Dublin, OH 43017 [Cite as State v. Morris,

.]

Gwin, J.,

{¶1} Appellant David Morris appeals the judgment entry of the Delaware County

Court of Common Pleas denying his motion to withdraw plea. Appellee is the State of

Ohio.

Facts & Procedural History

{¶2} On August 24, 2018, appellant was indicted with thirteen counts, as follows:

rape of Jane Doe, less than thirteen years of age, a violation of R.C. 2907.02(A)(1)(b),

with the specification that appellant purposely compelled Jane Doe to submit by force or

threat of force; gross sexual imposition of Jane Doe, less than thirteen years of age, a

violation of R.C. 2907.05(A)(4); rape of Mary Doe, less than thirteen years of age, during

the commission of which caused serious physical harm to Mary Doe, a violation of R.C.

2907.02(A)(1)(b), with the specification that appellant purposely compelled Mary Doe to

submit by force or threat of force; rape of Mary Doe, less than thirteen years of age, a

violation of R.C. 2907.02(A)(1)(b), with the specification that appellant purposely

compelled Mary Doe to submit by force or threat of force; rape of Mary Doe, less than

thirteen years of age, in a separate incident than alleged in counts three and four, a

violation of R.C. 2907.02(A)(1)(b), with the specification that appellant purposely

compelled Mary Doe to submit by force or threat of force; rape of Mary Doe, less than

thirteen years of age, in a separate incident than alleged in counts three, four, and five, a

violation of R.C. 2907.02(A)(1)(b), with the specification that appellant purposely

compelled Mary Doe to submit by force or threat of force; gross sexual imposition of Mary

Doe, less than thirteen years of age, a violation of R.C. 2907.05(A)(4); rape, with appellant

purposely compelling Mary Doe to submit by force or threat of force, a violation of R.C. Delaware County, Case No. 19 CAA 12 0069 3

2907.02(A)(2); rape, with appellant purposely compelling Mary Doe to submit by force or

threat of force, in a separate incident than count eight, a violation of R.C. 2907.02(A)(2);

rape, with appellant purposely compelling Mary Doe to submit by force or threat of force,

in a separate incident than in counts eight and nine, a violation of R.C. 2907.02(A)(2);

rape, with appellant purposely compelling Mary Doe to submit by force or threat of force,

in a separate incident than in counts eight, nine, and ten, a violation of R.C. 2907.02(A)(2);

domestic violence, a violation of R.C. 2919.25(A); and menacing by stalking, a violation

of R.C. 2903.211(A)(1).

{¶3} On February 7, 2019, the trial court held a change of plea hearing. At the

hearing, the trial court conducted a plea colloquy with appellant. Appellant stated he

understood the plea agreement and understood the trial court was not obligated to follow

the joint sentencing recommendation. The trial court reviewed the potential penalties,

specifically noting the rape charges carried a penalty of a minimum prison term of twenty-

five years and a maximum term of life in prison. After the trial court questioned whether

appellant would plead guilty to the force specifications, appellee stated the finding of use

of force was required for the mandatory sentence jointly agreed to by the parties pursuant

to the plea agreement. Both parties stated they agreed to the use of force language in

the indictment. The trial court found appellee “did include force when she described these

crimes.” After this exchange, the trial court specifically asked appellant if he had any

questions and whether he wanted to consult with his lawyer. Appellant stated he had no

questions and did not need to consult with his attorney. The trial court reviewed the plea

form with appellant, including the jointly recommended sentence of twenty-five years to

life. Appellant confirmed to the trial court he was pleading guilty to three rape charges, Delaware County, Case No. 19 CAA 12 0069 4

with the force specifications, and two counts of gross sexual imposition. The trial court

found appellant made a knowing, intelligent, and voluntary decision to enter his guilty

plea.

{¶4} Appellant signed a written plea agreement. The agreement stated appellant

would plead guilty to counts two, four, five, six, and seven of the indictment, and appellee

would dismiss counts one, three, eight, nine, ten, eleven, twelve, and thirteen of the

indictment. Appellant also acknowledged he “waive[d] his right to appeal, including, but

not limited to the grounds listed in Ohio Revised Code 2953.08.” The parties jointly

recommended a sentence of a stated prison term of twenty-five years to life.

{¶5} On the same day, appellant also signed a document entitled “withdrawal of

former plea of not guilty and written plea of guilty to counts two, four, five, six, and seven

of the indictment.” In this document, appellant confirmed: he was fully informed of the

charges against him; he was informed of the maximum penalties; he understood the effect

of a guilty plea; and that his plea was freely, voluntarily, and intelligently made, with his

full and complete understanding of the nature of the charges and the consequences of

his plea.

{¶6} The trial court issued a judgment entry finding appellant guilty and ordering

a presentence report.

{¶7} Appellee filed a sentencing memorandum on February 15, 2019, requesting

the trial court sentence appellant to a term of incarceration of twenty-five years to life, as

agreed to by both parties. In the memorandum, appellee detailed the facts of the case.

The victims reported multiple instances of sexual abuse by appellant, beginning when

they were eleven and twelve years old. While appellant initially denied any sexual activity Delaware County, Case No. 19 CAA 12 0069 5

with the victims, appellant admitted to the detective that he had vaginal intercourse with

one of the victims on at least thirty-seven different occasions. Appellee argued:

appellant’s conduct was of such a nature that only a sentence of at least twenty-five years

to life would adequately punish appellant and not demean the seriousness of the

offenses; appellant has no remorse for his actions; and appellant has a prior criminal

history of breaking and entering.

{¶8} The trial court held a sentencing hearing on February 19, 2019. Appellee

read statements from the victims and reviewed its sentencing recommendation.

Appellant apologized for his actions. The trial court sentenced appellant to an indefinite

prison term of twenty-five years to life on Counts 4, 5, and 6 (rape with force), to be served

concurrently, for a total prison sentence of twenty-five years to life.

{¶9} The trial court issued a sentencing entry on February 19, 2019, sentencing

appellant to a total indefinite and mandatory prison term with a minimum of twenty-five

years and a maximum term of life imprisonment. Appellant did not file a direct appeal.

{¶10} Appellant filed a motion to withdraw guilty plea on November 25, 2019 and

argued his plea was not knowingly, intelligently, and voluntarily entered because the

sentence was contrary to law. The trial court denied appellant’s motion on November 25,

2019. The trial court noted the sentence was jointly recommended by the parties.

Further, the trial court found the case cited by appellant, McMullen, was not applicable in

this case, because the McMullen case involved a different crime than the ones to which

appellant entered his guilty pleas. In this case, appellant pled guilty to three rape charges

that included allegations that the victim of each of the offenses was under the age of

thirteen and that he purposely compelled the victim to submit by force or threat of force; Delaware County, Case No. 19 CAA 12 0069 6

thus, his sentence is governed by R.C. 2971.03(B)(1)(c), not R.C. 2971.03(B)(1)(b), the

statute at issue in the McMullen case.

{¶11} Counsel for appellant has filed a motion to withdraw and a brief pursuant to

Anders v. California,

,

,

(1967), indicating that

the within appeal was wholly frivolous and setting forth three proposed assignments of

error:

{¶12} “I. THE TRIAL COURT ERRED IN ACCEPTING MORRIS’S GUILTY

PLEAS UNDER CRIM.R. 11.

{¶13} “II. THE TRIAL COURT ERRED IN SENTENCING MORRIS.

{¶14} “III. THE TRIAL COURT ERRED IN DENYING MORRIS’S MOTION TO

WITHDRAW HIS PLEAS.”

{¶15} Appellant was given an opportunity to file a pro se brief raising additional

assignments of error, and he has therein asserted as follows:

{¶16} “IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.”

{¶17} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he or she should so advise the court and request permission to withdraw.

Counsel must accompany his or her request with a brief identifying anything in the record

that could arguably support his client’s appeal.

Counsel also must: (1) furnish his or

her client with a copy of the brief and request to withdraw; and (2) allow the client sufficient

time to raise any matters that the client chooses.

Once the defendant’s counsel

satisfies these requirements, the appellate court must fully examine the proceedings

below to determine if any arguably meritorious issues exist. If the appellate court also Delaware County, Case No. 19 CAA 12 0069 7

determines that the appeal is wholly frivolous, it may grant counsel’s request to withdraw

and dismiss the appeal without violating constitutional requirements, or may proceed to

a decision on the merits if state law so requires.

{¶18} Counsel in this matter has followed the procedure in Anders. We now will

address the merits of the potential assignments of error.

{¶19} We will address appellant’s proposed assignments of error out of order for

ease of discussion.

II.

{¶20} In his second proposed assignment of error, appellant argues the trial court

was not authorized to sentence him to twenty-five years to life in prison.

{¶21} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum,

,

,

. R.C.

2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence

and remand for sentencing where we clearly and convincingly find that either the record

does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law.

State v. Bonnell,

,

,

.

{¶22} Appellant argues his sentence is contrary to law. He cites State v.

McMullen, 9th Dist. Summit No. 26850,

, for the proposition that he could

not be sentenced pursuant to R.C. 2971.03(B)(1)(c) because he was not convicted of

being a sexually violent predator, the victim was not under ten years of age, and there

was no serious physical harm. We disagree with appellant. Delaware County, Case No. 19 CAA 12 0069 8

{¶23} In State v. McMullen, the appellant argued his sentence was contrary to law

because he had not pleaded guilty or been convicted of being a sexually violent predator.

The Ninth District found that the appellant could not be sentenced pursuant to R.C.

2971.03(A)(3)(d)(i) because he was not convicted of being a sexually violent predator.

Further, pursuant to R.C. 2971.03(B)(1)(b), the correct sentence for the appellant was

fifteen years to life, rather than twenty-five years to life.

{¶24} However, McMullen is distinguishable from the instant case. In McMullen,

the appellant pled guilty to three counts of violating Section 2907.02(A)(1)(b) by engaging

in sexual conduct with a minor under the age of ten. In this case, appellant pled guilty to

three counts of violating Section 2907.02(A)(1)(b) by engaging in sexual conduct with a

minor under the age of thirteen, purposely compelling the victims to submit by force or

threat of force. Because of this distinction, appellant was not sentenced pursuant to either

R.C. 2971.03(A)(3)(d)(i) or R.C. 2971.03(B)(1)(b), the statutes at issue in McMullen.

{¶25} As the Ohio Supreme Court has recently discussed, when a trial court does

not sentence a defendant convicted under R.C. 2907.02(A)(1)(b) to life without parole

under R.C. 2907.02(B), R.C. 2971.03(B) provides three possible indefinite sentences that

may be imposed instead: 10 years to life, 15 years to life or 25 years to life. State v.

Bowers, --Ohio St.3d --,

, ---N.E.3d ----. R.C. 2971.03(B)(1) provides:

[I]f the court does not impose a sentence of life without parole [under R.C.

2907.02(B)], the court shall impose upon the person an indefinite prison

term consisting of one of the following:

(a) Except as otherwise required in division (B)(1)(b) or (c) of this section,

a minimum term of ten years and a maximum term of life imprisonment. Delaware County, Case No. 19 CAA 12 0069 9

(b) If the victim was less than ten years of age, a minimum term of fifteen

years and a maximum of life imprisonment.

(c) If the offender purposely compels the victim to submit by force or threat

of force, or if the offender previously has been convicted of or pleaded guilty

to violating division (A)(1)(b) of section 2907.02 of the Revised Code or to

violating an existing or former law of this state, another state, or the United

States that is substantially similar to division (A)(1)(b) of that section, or if

the offender during or immediately after the commission of the offense

caused serious physical harm to the victim, a minimum term of twenty-five

years and a maximum of life imprisonment.

{¶26} Thus, there are three ways in which a twenty-five year to life sentence may

be utilized by a trial court: use of force or threat of force in the commission of the offense;

a prior conviction for rape of a child under 13; or serious physical harm caused to the

victim of the offense. State v. Bowers, --Ohio St.3d --,

, ---N.E.3d ----.

The use of force or threat of force must be alleged in the indictment and there must be a

finding that the victim was compelled to submit by force.

Once an offender is found

guilty of R.C. 2907.02(A)(1)(b), along with the specification that he or she purposely

compelled the victim by force or threat of force, “R.C. 2971.03(B)(1)(c) mandates the

imposition of an indefinite sentence of twenty-five years to life in prison, rather than R.C.

2971.03(B)(1)(a), which mandates a sentence of ten years to life.” State v. Hill, 7th Dist.

Belmont No. 18 BE 0037,

.

{¶27} In this case, the use of force was specifically included in the indictment. For

each of the three charges appellant pled guilty to, the indictment provides, “appellant Delaware County, Case No. 19 CAA 12 0069 10

purposely compelled [the victim] to submit by force or threat of force.” During the

appellee’s recitation of facts during the plea hearing, she specifically stated appellant

“used force” or “forced” the victim into the sexual act on each of the three rape charges.

Also, at the plea hearing, the trial court made the finding of force, stating appellee, “did

include force when she was describing these crimes.” The trial court followed the joint

sentencing recommendation of the parties. Pursuant to R.C. 2971.03(B)(1)(c), the

twenty-five years to life sentence imposed by the trial court is authorized by law and not

contrary to law, as appellant pled guilty to three counts of rape of a child under thirteen,

with a force or threat of force specification.

{¶28} Based on the foregoing, we find appellant’s sentence was not contrary to

law. Appellant’s second proposed assignment of error is overruled.

I. & III.

{¶29} In appellant’s first and third proposed assignments of error, appellant

contends the trial court committed error in accepting his plea pursuant to Criminal Rule

11 and committed error in denying his motion to withdraw guilty plea. Specifically,

appellant argues the plea was not made knowingly, intelligently, or voluntarily, because

the sentence the trial court imposed was contrary to law.

{¶30} Ohio Criminal Rule 11 requires appellant’s pleas of guilty be made

knowingly, intelligently, and voluntarily. State v. Rahman, 5th Dist. Richland No. 13CA68,

. A review of the plea hearing demonstrates the trial court complied with

the mandate of Criminal Rule 11 in accepting appellant’s guilty pleas. The trial court

explained to appellant all of his rights, the potential penalties, and the effect of entering

the guilty pleas. During the plea colloquy, the trial court specifically reviewed with Delaware County, Case No. 19 CAA 12 0069 11

appellant that the rape charges carried a penalty of a minimum prison term of twenty-five

years and a maximum term of life in prison. After the exchange in which appellee

explained the use of force finding was required for the mandatory twenty-five-year

sentence jointly agreed to by the parties, the trial court asked appellant if he had any

questions and whether he wanted to consult with his attorney. Appellant stated he had

no questions and did not need to consult with his attorney. The trial court reviewed the

plea form with appellant, including the jointly recommended sentence of twenty-five years

to life. Appellant confirmed to the trial court he was pleading guilty to three rape charges,

with force specifications, and two counts of gross sexual imposition. We find appellant’s

plea was knowingly, intelligently, and voluntarily made, in compliance with Criminal Rule

11.

{¶31} A motion to withdraw a plea of guilty may be made only before sentence is

imposed; but to correct manifest injustice the court, after sentence, may set aside the

judgment of conviction and permit the defendant to withdraw his or her plea. Criminal

Rule 32.1. We review a trial court’s denial of a post-sentence motion to withdraw plea for

abuse of discretion. State v. Wallace, 5th Dist. Perry No. 18-CA00015,

.

Appellant has the burden of establishing manifest injustice warranting the withdrawal of

a guilty plea.

Appellant contends manifest injustice exists because his sentence is

contrary to law. As detailed above, appellant’s sentence is not contrary to law.

Accordingly, the trial court did not abuse its discretion in denying his motion to withdraw

plea.

{¶32} Appellant’s first and third proposed assignments of error are overruled. Delaware County, Case No. 19 CAA 12 0069 12

IV.

{¶33} In his fourth proposed assignment of error, appellant argues his trial counsel

was ineffective because counsel permitted appellant to plead guilty and agree to a

sentence that is contrary to law.

{¶34} In order to prevail on a claim for ineffective assistance of counsel, the

defendant must show (1) that counsel’s performance was deficient and (2) that the

deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

Strickland v. Washington,

,

,

(1984); State v.

Bradley,

,

(1989). As detailed above, appellant’s

sentence is not contrary to law. Accordingly, appellant has not shown that counsel’s

performance was deficient or that the allegedly deficient performance deprived appellant

of a fair trial. Appellant’s fourth proposed assignment of error is overruled.

{¶35} Based on the foregoing, the proposed assignments of error are overruled,

and, after independently reviewing the record, we agree with counsel’s conclusion that

no arguably meritorious claims exist upon which to base an appeal. Delaware County, Case No. 19 CAA 12 0069 13

{¶36} Hence, we find the appeal to be wholly frivolous under Anders, grant

counsel’s request to withdraw, and affirm the judgment of Delaware County Court of

Common Pleas.

By Gwin, J.,

Hoffman, P.J., and

Wise, Earle, J., concur