[Cite as State v. Johnson, 2017-Ohio-7775.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-16-1268 

 

 Appellee Trial Court No. CR0201502931 

v. 

Michael Johnson DECISION AND JUDGMENT

Appellant Decided: September 22, 2017 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. 

 Karin L. Coble, for appellant. 

* * * * * 

 JENSEN, P.J. 

I. Introduction 

{¶ 1} This is an appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 

S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant, Michael Johnson, appeals the judgment of 

the Lucas County Court of Common Pleas, imposing an agreed-upon sentence of 18 
2.

years in prison following his guilty plea to one count of involuntary manslaughter and 

one count of robbery. Finding no error in the proceedings below, we affirm the trial 

court’s judgment. 

II. Facts and Procedural Background 

{¶ 2} The facts of this case were succinctly summarized by the state during the 

suppression hearing as follows: 

[O]n November 5, 2015, * * * Scott Witkowski was working as a 

laborer on an apartment complex. It’s the State’s view of the case that he 

saw his car being stolen, that he attempted to stop that from happening, and 

was run over and ultimately killed in the defense of his car. The police 

department gathered evidence and ultimately led to [appellant], who was 

placed under arrest. 

{¶ 3} Following his arrest, appellant was indicted on one count of murder in 

violation of R.C. 2903.02(B) and 2929.02, a felony of the first degree. Appellant 

subsequently filed a motion to suppress, which was denied by the trial court. 

Approximately one month later, appellant entered into a plea agreement with the state in 

which he agreed to plead guilty to one count of involuntary manslaughter in violation of 

R.C. 2903.04(A) and (C), a felony of the first degree, and one count of robbery in 

violation of R.C. 2911.02(A)(2) and (B), a felony of the second degree.1

 As part of the 

 

1

 Appellant waived his right to an indictment on the additional robbery charge. 
3.

plea agreement, appellant and the state jointly agreed to a sentence of 11 years on the 

involuntary manslaughter count and seven years on the robbery count, to be served 

consecutively for a total sentence of 18 years. Prior to accepting appellant’s guilty plea, 

the trial court engaged appellant in a thorough Crim.R. 11 colloquy. After appellant was 

advised of his rights under Crim.R. 11, the trial court accepted appellant’s guilty plea and 

found appellant guilty. The court then continued the matter for sentencing and ordered 

the preparation of a presentence investigation report. 

{¶ 4} At sentencing, the trial court reviewed the presentence investigation report, 

considered statements in mitigation from appellant and his defense counsel, and 

permitted the reading of a victim impact statement. Thereafter, the trial court ordered 

appellant to serve 11 years in prison on the involuntary manslaughter count and seven 

years on the robbery count, to be served consecutively for an aggregate prison term of 18 

years. In so doing, the trial court stated: 

Sentencing hearing having been held pursuant to the Revised Code 

2929.19. The Defendant was afforded all rights pursuant to Criminal Rule 

32. The Court has considered the record, oral statements, any victim 

impact statement in the reports, as well as the principles and purposes of 

sentencing under Revised Code 2929.11, has balanced the seriousness and 

recidivism factors under 2929.12. 

* * * 
4.

The Court finds that consecutive sentences are necessary to protect 

the public from future crime or to punish the Defendant and [are] not 

disproportionate to the seriousness of the Defendant’s conduct, or the 

danger the Defendant poses. The Court further finds that the harm caused 

was so great, that no single prison term for any of the offenses committed 

as part of any course of conduct adequately reflects the seriousness of the 

offender’s conduct. 

{¶ 5} The trial court memorialized the foregoing findings in its November 3, 2016 

sentencing entry. Appellant’s timely notice of appeal was filed and appellate counsel was 

appointed. 

{¶ 6} Appointed counsel submits that she has thoroughly reviewed the record and 

researched the legal issues presented, but finds no error in the proceedings below. 

Consequently, counsel seeks leave to withdraw from appellant’s representation under 

Anders, supra. 

{¶ 7} Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th 

Dist.1978), set forth the procedure to be followed by appointed counsel who desires to 

withdraw for want of a meritorious, appealable issue. In Anders, the United States 

Supreme Court held that if counsel, after a conscientious examination of the case, 

determines it to be wholly frivolous, he should so advise the court and request permission 

to withdraw. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. This request, 

however, must be accompanied by a brief identifying anything in the record that could 
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arguably support the appeal. Id. Furthermore, counsel must furnish his client with a 

copy of the brief and request to withdraw from representation, and allow the client 

sufficient time to raise any matters that he chooses. Id.

{¶ 8} Once these requirements are satisfied, the appellate court must then conduct 

a full examination of the proceedings held below to determine if the appeal is indeed 

frivolous. If the appellate court determines that the appeal is frivolous, it may grant 

counsel’s request to withdraw and dismiss the appeal without violating constitutional 

requirements, or it may proceed to a decision on the merits if state law so requires. Id.

{¶ 9} Here, counsel has identified two potential assignments of error for our 

review: 

Proposed Assignment of Error One: Appellant’s guilty plea was 

involuntary and unknowing. 

Proposed Assignment of Error Two: Appellant’s sentence is either 

contrary to law or is not clearly and convincingly supported by the record. 

III. Analysis 

A. Acceptance of Appellant’s Plea 

{¶ 10} In her first proposed assignment of error, appellate counsel suggests that 

the trial court erred in accepting appellant’s guilty plea because the plea was involuntary 

and unknowing. 

 
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{¶ 11} Relevant here, Crim.R. 11(C) provides, in pertinent part: 

(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: 

(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. 

{¶ 12} In State v. Rinehart, 6th Dist. Wood No. WD-11-030, 2013-Ohio-3372, 

¶ 17-18, we explained: 
7.

The underlying purpose of Crim.R. 11(C) is to insure that certain 

information is conveyed to the defendant which would allow him or her to 

make a voluntary and intelligent decision regarding whether to plead guilty. 

State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). With 

respect to constitutional rights, a trial court must strictly comply with the 

dictates of Crim.R. 11(C). State v. Colbert, 71 Ohio App.3d 734, 737, 595 

N.E.2d 401 (11th Dist.1991). However, a trial court need not use the exact 

language found in that rule when informing a defendant of his 

constitutional rights. Ballard, supra, paragraph two of the syllabus. 

Rather, a trial court must explain those rights in a manner reasonably 

intelligible to the defendant. Id. 

For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) 

is not required; the trial court must substantially comply, provided no 

prejudicial effect occurs before a guilty plea is accepted. State v. Stewart, 

51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). “Substantial compliance means 

that under the totality of the circumstances the defendant subjectively 

understands the implications of his plea and the rights he is waiving.” State 

v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). 

{¶ 13} We have carefully reviewed the transcript from the plea hearing and we 

conclude that the trial court strictly complied with the constitutional aspects of Crim.R. 

11(C) and substantially complied with the non-constitutional aspects of Crim.R. 11(C). 
8.

Thus, we find that appellant’s guilty plea was knowing and voluntary, and we reject 

appellate counsel’s suggestion to the contrary. 

{¶ 14} Accordingly, we find appellate counsel’s first proposed assignment of error 

not well-taken. 

B. Sentencing 

{¶ 15} In her second proposed assignment of error, appellate counsel suggests that 

the trial court erred in imposing appellant’s sentence. 

{¶ 16} Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or 

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

sentencing court for resentencing if it clearly and convincingly finds either of the 

following: 

(a) That the record does not support the sentencing court’s findings 

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of 

section 2929.14, or division (I) of section 2929.20 of the Revised Code, 

whichever, if any, is relevant; 

(b) That the sentence is otherwise contrary to law. 

{¶ 17} Notably, R.C. 2953.08(D)(1) limits our review of the imposition of an 

agreed-upon sentence as follows: “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.” Here, the sentence imposed by the trial court was recommended jointly by 
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appellant and the state. Thus, the only issue for our consideration is whether the sentence 

was authorized by law. 

{¶ 18} Under R.C. 2929.14(A), a trial court may impose a sentence of up to 11 

years for a felony of the first degree or up to eight years for a felony of the second degree. 

In this case, the trial court imposed a prison sentence of 11 years as the involuntary 

manslaughter count, which was a felony of the first degree, and seven years as to the 

robbery count, which was a felony of the second degree. Therefore, we conclude that the 

sentence was authorized by law. 

{¶ 19} Accordingly, appellate counsel’s second proposed assignment of error is 

not well-taken. 

{¶ 20} In accordance with Anders, supra, appointed counsel has requested 

permission to withdraw from this case. She has provided a certification verifying that she 

made a conscientious review of the case, found the appeal to be wholly frivolous, filed a 

brief on appellant’s behalf identifying proposed assignments of error, and mailed the 

brief to appellant along with a letter informing him that he has the right to file his own 

brief. Appellant did not file a brief. Counsel’s motion to withdraw is found well-taken 

and is hereby granted. 

IV. Conclusion 

{¶ 21} This court, as required under Anders, has undertaken our own examination 

of the record to determine whether any issue of arguable merit is presented for appeal. 
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We have found none. Accordingly, we grant the motion of appellant’s counsel to 

withdraw. 

{¶ 22} The judgment of the Lucas County Court of Common Pleas is affirmed. 

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The clerk is 

ordered to serve all parties with notice of this decision. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

James D. Jensen, P.J. 

_______________________________ 

Christine E. Mayle, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE