[Cite as State v. Green,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-6 : v. : Trial Court Case No. 2019-CR-211 : MICHAEL RAYMOND GREEN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 8th day of January, 2021.

...........

SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Assistant Prosecuting Attorney, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

ANTOINETTE DILLARD, Atty. Reg. No. 0083191, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

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

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Michael Raymond Green, appeals from his conviction

in the Champaign County Court of Common Pleas after pleading guilty to one count of

operating a vehicle under the influence of alcohol or drugs (“OVI”) with a repeat offender

specification, one count of aggravated vehicular assault, and two counts of vehicular

assault. On August 6, 2020, Green’s assigned counsel filed a brief under the authority

of Anders v. California,

,

,

(1967), asserting

that there are no issues with arguable merit to present on appeal and raising a single

potential assignment of error concerning the validity of Green’s guilty plea. On August

12, 2020, this court notified Green that his counsel found no meritorious claims for appeal

and granted him 60 days to file a pro se brief assigning any errors. On September 8,

2020, Green filed a pro se brief that contained arguments challenging his sentence and

the indicted charges. The State then filed a brief opposing Green’s arguments.

{¶ 2} After reviewing Green’s pro se arguments and his counsel’s potential

assignment of error, we find that they all lack arguable merit. Furthermore, after

conducting an independent review of the record as required by Anders, we find that there

are no issues with arguable merit for Green to advance on appeal. Therefore, the

judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 3} On September 9, 2019, a Champaign County grand jury indicted Green on

two third-degree-felony counts of OVI—one count in violation of R.C. 4511.19(A)(1)(a)

and the other count in violation of R.C. 4511.19(A)(2). Both of the counts included a

specification that Green was a repeat offender who had five prior OVI offenses within the -3-

past 20 years.

{¶ 4} The charges arose from an incident at the Champaign County Fairgrounds

on August 3, 2019. Bystanders at the fairgrounds reported a black Chevy Silverado

striking another vehicle in the parking lot and then driving away to a camping area at the

fairgrounds, where the vehicle continued to drive recklessly. When law enforcement

officers arrived at the scene, the driver of the Chevy, Green, refused to submit to any

testing for intoxication. Green, however, admitted that he had consumed four or five

beers. Thereafter, the investigating officers observed a cooler inside of Green’s vehicle

that contained several cans of Bud Light and a Styrofoam cup that smelled of beer.

Green was then taken into custody and charged with the aforementioned OVI offenses

and repeat offender specifications.

{¶ 5} Following his indictment, Green was released on bond. While awaiting his

arraignment hearing, Green was taken back into custody after he caused a traffic accident

on September 17, 2019. It was reported that Green collided with an oncoming vehicle

after he ran a stop sign at the intersection of Three Mile Road and East State Route 29

in Champaign County. The oncoming vehicle contained three occupants who were

physically injured as a result of the collision. When law enforcement arrived at the scene,

the investigating officers detected a strong odor of an alcoholic beverage on Green’s

person. Green refused any testing for intoxication, but admitted that he had consumed

five beers. Thereafter, the officers discovered several opened cans of Bud Light in the

front-passenger compartment of Green’s vehicle.

{¶ 6} After the traffic accident, Green was charged with several offenses in the

Champaign County Municipal Court, including OVI in violation of R.C. 4511.19(A)(1)(a). -4-

The municipal court case, however, was bound over to the Champaign County Court of

Common Pleas and combined with Green’s earlier pending OVI case. Therefore, in

addition to the two previously indicted OVI charges related to the fairgrounds incident,

Green was indicted on 11 additional charges related to the subsequent traffic accident.

Those 11 charges included two third-degree-felony counts of OVI in violation of R.C.

4511.19(A)(1)(a) and R.C. 4511.19(A)(2), each with a repeat offender specification, six

second-degree-felony counts of aggravated vehicular assault in violation of R.C.

2903.08(A)(1)(a), and three third-degree-felony counts of vehicular assault in violation of

R.C. 2903.08(A)(2).

{¶ 7} On December 20, 2019, Green entered into a plea agreement with the State

whereby he agreed to plead guilty to one of the OVI counts with a repeat offender

specification; one of the aggravated vehicular assault counts, and two of the vehicular

assault counts. In exchange for his guilty plea, the State agreed to dismiss the remaining

charges and specifications and to recommend a presentence investigation (“PSI”). The

State also agreed to recommend a total term of 19 years in prison if the PSI did not reveal

any unknown information regarding Green’s criminal history. The State further agreed

to remove language from the vehicular assault charges stating that he was driving under

suspension during the offenses, which ultimately amended the vehicular assault counts

from third- to fourth-degree felonies. See R.C. 2903.08(C)(2).

{¶ 8} After a Crim.R. 11 plea colloquy, the trial court accepted Green’s guilty plea

as knowingly, intelligently, and voluntarily entered. The trial court then ordered a PSI

and scheduled Green’s case for sentencing. At the sentencing hearing, the trial court

imposed the maximum possible sentence. Specifically, the trial court sentenced Green -5-

to 36 months in prison for the OVI, 18 months in prison for each of the two vehicular

assault counts, and, in accordance with the recently enacted Reagan Tokes Law, an

indefinite sentence of 8 to 12 years in prison for aggravated vehicular assault. The trial

court then ordered all of the prison terms to be served consecutively for an aggregate

term of 14 to 18 years in prison. The trial court also sentenced Green to five years in

prison for the repeat OVI offender specification. The trial court advised Green that he

would be required to serve the five-year prison term prior and consecutive to the 14 to 18

year prison term. Therefore, when taken in its entirety, Green was ultimately sentenced

to 19 to 23 years in prison.

{¶ 9} Greene now appeals from his conviction. As previously noted, Green’s

appellate counsel filed an Anders brief that raised one potential assignment of error

challenging the validity of Green’s guilty plea. Green also filed a pro se brief that

challenged his sentence and the indicted charges. We will address each of these claims

separately.

Standard of Review

{¶ 10} In Anders cases, we are charged with conducting an independent review of

the record “to determine whether any issues involving potentially reversible error that are

raised by appellate counsel or by a defendant in his pro se brief are ‘wholly frivolous.’ ”

State v. Marbury, 2d Dist. Montgomery No. 19226,

, ¶ 7, quoting Anders,

,

,

. An issue is wholly frivolous if it lacks

arguable merit, meaning that “on the facts and law involved, no responsible contention

can be made that it offers a basis for reversal.” Id. at ¶ 8, citing State v. Pullen, 2d Dist. -6-

Montgomery No. 19232,

, ¶ 4. If we find that any issue—whether

presented by appellate counsel, presented by the appellant, or found through an

independent analysis—is not wholly frivolous, we must appoint different appellate counsel

to represent the appellant. Id. at ¶ 7, citing Pullen.

Counsel’s Potential Assignment of Error

{¶ 11} As a potential assignment of error, Green’s appellate counsel suggested

that this court review whether the trial court failed to comply with Crim.R. 11 during the

plea proceedings. We note that counsel did not point to any specific violation of Crim.R.

11. Instead, counsel generally requested that this court review the plea proceedings for

compliance with the rule.

{¶ 12} “Ohio’s Crim.R. 11 outlines the procedures that trial courts are to follow

when accepting pleas.” State v. Dangler, Ohio Slip Opinion No.

, __

N.E.3d __, ¶ 11. “[T]he rule ‘ensures an adequate record on review by requiring the trial

court to personally inform the defendant of his rights and the consequences of his plea

and determine if the plea is understandingly and voluntarily made.’ ”

quoting State

v. Stone,

,

(1975). The Supreme Court of Ohio

has urged trial courts to comply literally with Crim.R. 11. State v. Clark,

,

,

. However, in reviewing the plea colloquy,

the focus should be “on whether the dialogue between the court and the defendant

demonstrates that the defendant understood the consequences of his plea.” (Citations

omitted.) Dangler at ¶ 12.

{¶ 13} Pursuant to Crim.R. 11(C)(2), the trial court may not accept a defendant’s -7-

guilty plea without first addressing the defendant personally and:

(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 or no contest, 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.

Crim.R. 11(C)(2)(a)-(c).

{¶ 14} Generally speaking, “a defendant is not entitled to have his plea vacated

unless he demonstrates he was prejudiced by a failure of the trial court to comply with the

provisions of Crim.R. 11(C).” Dangler at ¶ 16, citing State v. Nero,

,

(1990). “The test for prejudice is ‘whether the plea would have

otherwise been made.’ ”

quoting

. There are, however, two exceptions -8-

to this rule. Id. at ¶ 14-16.

{¶ 15} The first exception is that the trial court must comply strictly with Crim.R.

11(C)(2)(c) as it pertains to the waiver of federal constitutional rights. Id. at ¶ 14. “When

a trial court fails to explain the constitutional rights that a defendant waives by pleading

guilty or no contest, we presume that the plea was entered involuntarily and unknowingly,

and no showing of prejudice is required.” Id., citing Clark,

, 2008-

Ohio-3748,

.

{¶ 16} The second exception is that “a trial court’s complete failure to comply with

a portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” Id. at

¶ 15, citing State v. Sarkozy,

,

,

.

However, a defendant still must show prejudice if the trial court partially complied with

Crim.R. 11(C) in regard to a non-constitutional right. State v. Bishop,

,

,

.

{¶ 17} We have reviewed the transcript of the plea hearing in this case and find

that the trial court fully complied with Crim.R. 11(C). With respect to the requirements

under Crim.R. 11(C)(2)(a), the record establishes that the trial court advised Green of the

nature of his offenses and that Green indicated he understood them. The trial court also

questioned Green about the voluntariness of his guilty plea and ensured that Green was

not under the influence of any drugs, alcohol, or prescribed medications. Green also

advised the trial court that his plea was not being made as the result of any threats or

promises (other than what was in the plea agreement), and indicated that his decision to

plead guilty was of his own free will. Green further indicated that he had sufficient time

to speak with his attorney about his case, had no defense to the charges, and had been -9-

given all the information he needed to enter a knowing, intelligent, and voluntary guilty

plea.

{¶ 18} With regard to the penalty, the trial court advised Green that, upon pleading

guilty, he would be receiving a prison term for his offenses. The trial court ensured that

Green understood that the prison terms for aggravated vehicular assault and the repeat

OVI offender specification were mandatory. The trial court then correctly advised Green

that if maximum, consecutive prison sentences were imposed, he would be required to

serve 5 years in prison for the repeat OVI offender specification plus an aggregate term

of 14 to 18 years in prison for his offenses, meaning that he would be required to serve

at least 19 years in prison.

{¶ 19} The trial court also explained that once Green served the five-year prison

term for the specification and the aggregate 14-year minimum prison term for the

offenses, there was a presumption that he would be released from prison. However, the

trial court advised that the presumption for release could be rebutted by the prison system.

The trial court explained that if the presumption for release were successfully rebutted,

Green could be retained in prison up to the aggregate 18-year maximum prison term.

{¶ 20} The trial court further advised Green that he was not eligible for judicial

release or earned reduction of the minimum prison term, and that post-release control

was mandatory for three years. The trial court then advised Green that a license

suspension was mandatory for all of his offenses and that the maximum suspension he

could receive would be for his lifetime. The trial court additionally explained to Green

that he faced a mandatory fine of $1,350 to $10,500 for his OVI offense, and that the total,

maximum fine he could receive for all of his offenses amounted to $35,500. Green was -10-

also advised that his OVI offense included a mandatory drug and alcohol assessment.

After receiving all of this information, Green indicated that he understood the maximum

possible penalty for his offenses.

{¶ 21} For the foregoing reasons, we find that the trial court complied with all the

requirements under Crim.R. 11(C)(2)(a). We also find that the trial court complied with

all the requirements under Crim.R. 11(C)(2)(b) and (c). Specifically, Green indicated that

he understood that a guilty plea was a complete admission of his guilt, that the trial court

could proceed immediately to sentencing, and that he was waiving all the constitutional

rights listed under Crim.R. 11(C)(2)(c).

{¶ 22} Therefore, because the record establishes that the trial court complied with

all the requirements for accepting guilty pleas under Crim.R. 11(C), counsel’s potential

assignment of error lacks arguable merit.

Green’s Pro Se Arguments

{¶ 23} In his pro se brief, Green challenges the trial court’s decision to impose

maximum, consecutive sentences. According to Green, the trial court should not have

been permitted to consider his criminal history when sentencing him. Green also claims

that his 13-count indictment was excessive and unfair. For the following reasons, we

find that both of Green’s claims lack arguable merit.

Maximum Consecutive Sentences

{¶ 24} When reviewing felony sentences, this court must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum,

, 2016- -11-

Ohio-1002,

, ¶ 1 and 7. Under that statute, an appellate court may

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it clearly and convincingly finds either: (1) the record does not support

the sentencing court’s findings under certain statutes (including R.C. 2929.14(C)(4),

which concerns the imposition of consecutive sentences); or (2) the sentence is otherwise

contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).

{¶ 25} With regard to consecutive sentences, “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[.]” State v. Bonnell,

, 2014-Ohio-

3177,

, syllabus. Pursuant to R.C. 2929.14(C)(4), a trial court may impose

consecutive sentences if it finds that: (1) consecutive service is necessary to protect the

public from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public; and (3) one or more of the following three findings are

satisfied:

(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 -12-

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.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 26} “[W]here a trial court properly makes the findings mandated by R.C.

2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does

not support the trial court’s findings.” State v. Withrow,

,

,

¶ 38 (2d Dist.). The consecutive nature of the trial court’s sentencing decision should

therefore stand “unless the record overwhelmingly supports a contrary result.” (Citation

omitted.) Id. at ¶ 39.

{¶ 27} After reviewing the record, we find that the trial court made all the required

consecutive-sentence findings under R.C. 2929.14(C)(4) at Green’s sentencing hearing

and included those findings within Green’s sentencing entry. See Sentencing Trans. p.

41-42; Judgment Entry of Conviction p. 8-9. Specifically, the trial court found that

consecutive sentences were necessary to protect the public from future crime or to punish

Green, and were not disproportionate to the seriousness of Green’s conduct and to the

danger he posed to the public. The trial court also found that Green’s history of criminal

conduct demonstrated that consecutive sentences were necessary to protect the public

from future crime by him. See R.C. 2929.14(C)(4)(c). The trial court further found that

at least two of the multiple offenses committed by Green were committed as part of one -13-

or more courses of conduct, and that the harm caused by two or more of the multiple

offenses was so great or unusual that no single prison term for any of those offenses

adequately reflected the seriousness of Green’s conduct. See R.C. 2929.14(C)(4)(b).

{¶ 28} We do not clearly and convincingly find that the record fails to support the

aforementioned consecutive-sentence findings. First and foremost, the record

establishes that Green had an extensive criminal history. Green argues that the trial

court should not have been able to consider his criminal history when sentencing him, but

Green is wrong. Pursuant to R.C. 2929.12(D)(2), an offender’s criminal history is a

sentencing factor that must be considered by the trial court when determining the

likelihood of recidivism. Therefore, “an offender’s prior criminal conduct bears directly

on a sentencing court’s decision on the length of sentence to impose.” State v.

Bromagen, 1st Dist. Hamilton No. C-120148,

. Accord State v.

Ward, 2d Dist. Clark No. 2015-CA-115,

.

{¶ 29} Here, Green’s PSI report established that, between 1987 and 2009, Green

acquired ten OVI convictions in six different counties. The information pertaining to each

of those convictions is set forth in the following table:

Year Offense County Sentence 1987 OVI – M1 Champaign 3-day jail term1 County 1988 OVI – M1 Champaign 3-day jail term2

1 The sentencing information for Green’s 1987 OVI offense was not in the PSI report. Green informed the trial court of the sentence he received for that offense at his sentencing hearing. 2 The sentencing information for Green’s 1988 OVI offense was not in the PSI report. Green informed the trial court of the sentence he received for that offense at his sentencing hearing. -14-

County 1994 OVI – M1 Champaign 10-day jail term County 1994 OVI – M1 Clark Unknown County 1998 OVI – M1 Champaign Fines, costs, and substance abuse treatment County 1999 OVI – F4 Preble 4 years community control (community control County revoked in 2002) 2002 OVI – M1 Delaware 30-day jail term and 5 years community control County (community control revoked in 2005) 2004 OVI – F4 Clinton 12-month prison term County 2007 OVI – F4 Fayette 6-month prison term County 2009 OVI – F3 Clark 4-year prison term County

{¶ 30} In addition to his ten prior OVI convictions, Green had a 2001 felony

conviction for assault on a peace officer for which he served 16 months in prison. Green

also had a 1997 felony conviction for disrupting public service for which he was sentenced

to 3 years of community control. Green’s community control, however, was revoked in

2000, and Green was required to serve 10 months in prison. Over the years, Green also

acquired multiple misdemeanor convictions for domestic violence and disorderly conduct.

{¶ 31} The record also established that Green did not take his alcoholism seriously

and was a danger to society. Green advised the trial court that he first recognized his

substance abuse problem in 2000, yet he continued to acquire several OVIs between

2000 and 2009. Moreover, despite being imprisoned and having his driver’s license

suspended multiple times, Green continued his conduct of driving while intoxicated when

he should not have been driving at all. The record also indicated that Green had sought

minimal treatment for his substance abuse problem. Prior to the incidents in question,

other than prison programming, Green only attended outpatient treatment between May -15-

2013 and September 2013 and for a brief period of time between 2002 and 2004.

{¶ 32} We also find it significant that the two OVI incidents for which Green was

charged in this case happened within a mere seven weeks of each other, with the second

incident happening while Green was out on bond. During the second incident—the traffic

accident—Green’s intoxicated driving injured multiple people. One of the victims was a

12-year-old boy who, in addition to other injuries, suffered a broken nose and received a

permanent scar below his lip. The boy’s mother, who was also in the vehicle, suffered

bruised ribs, tissue damage, and a broken thumb. Because the mother could not work

as a result of her injuries, she lost her job and then suffered from depression and mental

anguish. The mother’s boyfriend, who was also injured, advised the trial court that as a

result of the accident he had to miss work to take care of the mother and her son, which

resulted in him being unable to pay his rent and losing his apartment.

{¶ 33} For all the foregoing reasons, any contention that the record failed to

support the trial court’s consecutive-sentence findings under R.C. 2929.14(C)(4) would

be wholly frivolous. Therefore, we find no issue with arguable merit concerning the

imposition of consecutive sentences.

{¶ 34} We also do not clearly and convincingly find that the trial court’s sentencing

decision was otherwise contrary to law. “A sentence is contrary to law when it does not

fall within the statutory range for the offense or if the trial court fails to consider the

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

factors set forth in R.C. 2929.12.” (Citation omitted.) State v. Brown,

,

(2d Dist.). “ ‘The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is not required to make any -16-

findings or give its reasons for imposing maximum or more than minimum sentences.’ ”

State v. Fyffe,

,

(2d Dist.), quoting State v. King, 2013-

Ohio-2021,

, ¶ 45 (2d Dist.).

{¶ 35} In this case, the record of the sentencing hearing and the sentencing entry

indicate that prior to issuing its sentencing decision, the trial court considered the

purposes and principles of felony sentencing in R.C. 2929.11, as well as the sentencing

factors in R.C. 2929.12. See Sentencing Trans. p. 37; Judgment Entry of Conviction p.

5-7. The record also indicates that the individual prison sentences imposed for each of

Green’s offenses and for the repeat OVI offender specification were within the authorized

statutory range. See R.C. 2929.14(A)(2)(a), (A)(3)(b), (A)(4), and R.C. 2941.1413(A).

Therefore, we do not clearly and convincingly find that Green’s individual prison

sentences were contrary to law.

{¶ 36} For the foregoing reasons, Green’s argument challenging the trial court’s

decision to impose maximum, consecutive sentences lacks arguable merit.

Indicted Charges

{¶ 37} Green also claims that the 13 charges in his indictment were excessive and

unfair. However, “by entering a voluntary guilty plea while represented by competent

counsel, [Green] waived his right to appeal all non[-]jurisdictional defects in prior stages

of the proceedings.” (Citations omitted.) State v. Guerra, 2d Dist. Miami No. 2015-CA-

28,

. Therefore, Green has waived the right to appeal any alleged

defects in his indictment, including that the charges in the indictment were excessive.

See State v. Black, 8th Dist. Cuyahoga No. 102586,

, ¶ 9 (a guilty plea -17-

“waives the right to a direct appeal of any alleged defects in the indictment, such as

‘overcharging’ ”); State v. Boyle, 2d Dist. Greene No. 2018-CA-12,

(“a guilty plea waives the right to claim error rising from a defective indictment”); State v.

Lopez, 2d Dist. Greene No. 99-CA-120,

, ¶ 14 (”a defendant who, prior

to pleading guilty, fails to assert that the indictment is defective, waives any error in the

indictment”). Accordingly, Green’s claim that the charges in his indictment were

excessive and unfair lacks arguable merit.

Conclusion

{¶ 38} For the foregoing reasons, counsel’s potential assignment of error and

Green’s pro se arguments lack arguable merit. Furthermore, after conducting an

independent review of the record as required by Anders, we find that there are no issues

with arguable merit for Green to advance on appeal. Therefore, the judgment of the trial

court is affirmed.

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

TUCKER, P.J. and HALL, J., concur.

Copies sent to:

Samantha B. Whetherholt Antoinette Dillard Michael Raymond Green Hon. Nick A. Selvaggio