[Cite as State v. Fleischer, 2017-Ohio-7762.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

VS. 

CHANNE FLEISCHER 

 DEFENDANT-APPELLANT 

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CASE NO. 16 JE 0011 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Jefferson County, 

Ohio 

Case No. 15 CR 22 

JUDGMENT: Affirmed in part. 

Reversed and remanded in part. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Jane Hanlin 

Jefferson County Prosecutor 

16001 State Route 7 

Steubenville, Ohio 43952 

For Defendant-Appellant Attorney Rhys Cartwright-Jones 

42 North Phelps Street 

Youngstown, Ohio 44503-1130 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

 

 

 Dated: September 21, 2017 
[Cite as State v. Fleischer, 2017-Ohio-7762.]

DeGENARO, J. 

{¶1} Defendant–Appellant, Channe M. Fleischer, appeals the trial court 

judgment convicting her of one count of aggravated murder and two counts of 

endangering children and sentencing her accordingly. Appointed appellate counsel 

for Fleischer has filed a no-merit brief and a request to withdraw as counsel pursuant 

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and State 

v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970). 

{¶2} Although there are no appealable issues regarding the plea, there is 

one appealable issue regarding sentencing, namely, the trial court should have 

imposed a three-year mandatory term of post-release control, not a five-year term. 

Thus, Fleischer's convictions and the imposition of the life without the possibility of 

parole for 20 years sentence is affirmed. However, the portion of the sentence 

regarding post-release control is reversed and the matter remanded to the trial court 

for a limited resentencing regarding post-release control. See State v. Lewis, 7th Dist. 

No. 12 MA 107, 2013-Ohio-892, ¶ 1 (applying this procedure in an Anders case with 

a clear post-release control error; not requiring the issue to be briefed.) 

Facts and Procedural History 

{¶3} The grand jury indicted Fleischer on one count of aggravated murder 

R.C. 2903.01(C), an unclassified felony; one count of endangering children, R.C. 

2919.22(B)(2) and (E)(3), a second-degree felony; and one count of endangering 

children R.C. 2919.22(A) and (E)(1)(c), a third-degree felony. She was accused of 

physically abusing her sixteen-month-old son over a period of several months and 

killing him. 

{¶4} Fleischer was arraigned, pled not guilty by reason of insanity and 

counsel was appointed. Sanity and competency evaluations were ordered by the 

trial court; Fleischer was found to be sane and competent and the parties stipulated 

to those findings. 

{¶5} Fleischer later entered into a Crim.R. 11 plea agreement with the State. 

Therein, Fleischer agreed to plead guilty to the charges in the indictment. In 

exchange, the State agreed to a jointly-recommended sentence of life without the 
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possibility of parole for 20 years in prison. 

{¶6} During the plea hearing, the trial court engaged in a colloquy with 

Fleischer concerning the rights she would give up by pleading guilty, and accepted 

Fleischer's plea as knowingly, voluntarily and intelligently made and then immediately 

proceeded to sentencing. The State stood by its promise to recommend an 

aggregate sentence of life without the possibility of parole for 20 years. The State 

noted that the autopsy report indicated the cause of death to the child was blunt 

impacts to the child's head, trunk and extremities, and that there were abrasions and 

contusions all over the child's body. In addition, there were a number of burn injuries 

to the child's feet, which were in various stages of healing; the State asserted that the 

evidence at trial would have shown those injuries had been there for up to five 

weeks. The State notes that the burn injuries formed the basis for the child 

endangering charges in the indictment. 

{¶7} Defense counsel also urged the trial court to accept the jointlyrecommended sentence, stating that Fleischer has taken responsibility for her 

actions. The trial court asked Fleischer whether she had anything to say or any 

evidence to present in mitigation of sentence and she declined to make a statement 

or present evidence. 

{¶8} After considering the record, statements made at sentencing, the 

purposes and principles of sentencing under R.C. 2929.11 and the seriousness and 

recidivism factors under R.C. 2929.12, the trial court sentenced Fleischer to the 

jointly-recommended sentence of life without the possibility of parole for 20 years for 

the aggravated murder count, 8 years on the felony-two endangering children count 

and 36 months on the felony-three endangering children count, to all run 

concurrently. The trial court imposed a $25,000.00 fine to be suspended during 

Fleischer's incarceration. The trial court granted Fleischer jail-time credit for 245 

days, in addition to any time accrued awaiting transportation to the penitentiary. The 

trial court explained that Fleischer would not be eligible for parole or judicial release 

until she served 20 years in prison. Finally, the trial court imposed five years of 
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mandatory post-release control. 

{¶9} Fleischer filed a pro se motion for delayed appeal, which we granted 

and appointed appellate counsel. Counsel filed a no-merit brief and we granted 

Fleischer 30 days to file a pro-se brief which she failed to file. The same day she 

filed her motion for a delayed appeal, Fleischer also filed, with this court, a pro-se 

motion to withdraw her guilty plea pursuant to Crim.R. 32.1, which this court 

dismissed. 

Anders Review 

{¶10} An attorney appointed to represent an indigent criminal defendant may 

seek permission to withdraw if the attorney can show that there is no merit to the 

appeal. See generally Anders, 386 U.S. 738. To support such a request, appellate 

counsel is required to undertake a conscientious examination of the case and 

accompany his or her request for withdrawal with a brief referring to anything in the 

record that might arguably support an appeal. Toney, 23 Ohio App.2d at 207. 

Counsel's motion must then be transmitted to the defendant in order to assert any 

error pro se. Id. at syllabus. The reviewing court must then decide, after a full 

examination of the proceedings and counsel's and the defendant's filings, whether 

the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is 

granted, new counsel is denied, and the trial court's judgment is affirmed. Id. 

{¶11} In the typical Anders case involving a guilty plea, the only issues that 

can be reviewed relate to the plea or the sentence. See, e.g., State v. Verity, 7th Dist. 

No. 12 MA 139, 2013–Ohio–1158, ¶ 11. 

{¶12} A guilty plea must be made knowingly, voluntarily and intelligently. 

State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 7. If it is 

not, it has been obtained in violation of due process and is void. State v. Martinez, 

7th Dist. No. 03 MA 196, 2004–Ohio–6806, ¶ 11, citing Boykin v. Alabama, 395 U.S. 

238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness 

of a plea, this court must consider all of the relevant circumstances surrounding it. 

State v. Johnson, 7th Dist. No. 07 MA 8, 2008–Ohio–1065, ¶ 8, citing Brady v. United 
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States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). 

{¶13} The trial court must engage in a Crim.R. 11(C) colloquy with the 

defendant in order to ensure that a felony defendant's plea is knowing, voluntary and 

intelligent. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶ 

25–26. During the colloquy, the trial court is to provide specific information to the 

defendant, including constitutional and nonconstitutional rights being waived. Crim.R. 

11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355. 

{¶14} The constitutional rights the defendant must be notified of are the right 

against self-incrimination, to a jury trial, to confront one's accusers, to compel 

witnesses to testify by compulsory process, and to have the state prove guilt beyond 

a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008–

Ohio–5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these 

requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115 

(1981). "Strict compliance" does not require a rote recitation of the exact language of 

the rule. Rather, a reviewing court should focus on whether the "record shows that 

the judge explained these rights in a manner reasonably intelligible to the defendant." 

Id. at paragraph two of the syllabus. 

{¶15} The nonconstitutional rights the defendant must be informed of are the 

effect of his plea, the nature of the charges, and the maximum penalty, which 

includes an advisement on post-release control if applicable. Further, a defendant 

must be notified, if applicable, that she is not eligible for probation or the imposition of 

community control sanctions. Finally, this encompasses notifying the defendant that 

the court may proceed to judgment and sentence after accepting the guilty plea. 

Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d 176 at ¶ 10–13; Sarkozy, 117 Ohio 

St.3d 86, at ¶ 19–26. The trial court must substantially comply with these 

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

"Substantial compliance means that under the totality of the circumstances the 

defendant subjectively understands the implications of his plea and the rights she is 

waiving." Id. at 108. In addition to demonstrating the trial court did not substantially 
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comply with Crim R. 11(C)(2)(a)(b) the defendant must also show a prejudicial effect, 

meaning the plea would not have otherwise been made. Veney, 120 Ohio St.3d 176 

at ¶ 15 citing Nero, 56 Ohio St.3d at 108. 

{¶16} The trial court's advisement of Fleischer's constitutional rights strictly 

complied with Crim.R. 11(C)(2)(c), and she indicated she understood she was giving 

up all of the above rights. 

{¶17} The trial court also substantially complied with Crim.R. 11(C) when 

advising Fleischer of her nonconstitutional rights, with the exception of post-release 

control. "When the trial judge does not substantially comply with Crim.R. 11 in regard 

to a nonconstitutional right, reviewing courts must determine whether the trial court 

partially complied or failed to comply with the rule. If the trial judge partially complied, 

e.g., by mentioning mandatory postrelease control without explaining it, the plea may 

be vacated only if the defendant demonstrates a prejudicial effect." State v. Clark, 

119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32 (2008) 

{¶18} The trial court overstated the Fleischer's applicable post-release term; 

erroneously stating that the aggravated murder carried a five-year mandatory term, 

when post-release control does not apply to aggravated murder. State v. Threats, 78 

N.E.3d 211, 2016-Ohio-8478, ¶ 18-19 (7th Dist.). The trial court should have told 

Fleischer she would be subject to a three-year mandatory term of post-release 

control, for the highest classified felony, the second-degree felony. R.C. 

2967.28(B)(2). 

{¶19} Thus, the trial court partially complied; it explained post-release control, 

but overstated the applicable term. However, there is no prejudice from the 

misstatement in this instance. By pleading guilty, Fleischer received a very favorable 

sentencing recommendation and was ultimately able to avoid life imprisonment 

without parole. It is illogical to presume that had Fleischer known she was only 

subject to three years of mandatory post-release control instead of five, as the trial 

court advised her, that she would not have pled guilty. Accordingly, there is no 

prejudice. See Threats at ¶ 15-46 (reviewing case law and concluding there was no 
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prejudice by the trial court's overstatement of the applicable post-release control 

term.) Accordingly, Fleischer's plea was knowingly, voluntarily, and intelligently 

entered. 

{¶20} Turning to sentencing, appellate courts typically review a felony 

sentence to determine whether the trial court's findings—or where findings are not 

required, the sentence itself—are clearly and convincingly unsupported by the record, 

or whether the sentence is otherwise contrary to law. R.C. 2953.08(G)(2); State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; ¶ 23. 

{¶21} However, in this case, the trial court imposed the sentence jointlyrecommended by the defendant and the prosecutor; thus, this court's review is even 

more limited. "[I]f a jointly recommended sentence imposed by a court is 'authorized 

by law,' then the sentence 'is not subject to review.' " State v. Sergent, 148 Ohio 

St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 15, quoting R.C. 2953.08(D)(1). "To be 

'authorized by law' under R.C. 2953.08(D)(1), a sentence must comport with all 

applicable mandatory sentencing provisions." Sergent at ¶ 29. 

{¶22} Here, Fleischer was afforded her allocution rights pursuant to Crim.R. 

32(A)(1). The trial court considered purposes and principles of sentencing under R.C. 

2929.11 and the seriousness and recidivism factors under R.C. 2929.12. The life 

without the possibility of parole for 20 years sentence Fleischer received is within the 

range for the charges; in fact it was the minimum sentence she could have received. 

See R.C. 2929.03(A)(1)(a)-(d); R.C. 2929.14(A)(2) and R.C. 2929.14(A)(3)(b). 

{¶23} With regard to the "issue of merger[,] [it] is not barred on appeal merely 

because the sentence was jointly recommended." State v. Helms, 7th Dist. No. 14 

MA 96, 2015-Ohio-1708, ¶ 50, citing State v. Underwood, 124 Ohio St.3d 365, 2010–

Ohio–1, 922 N.E.2d 923, ¶ 23–33 (concluding that the merger statute falls under “the 

authorized by law” test in R.C. 2953.08(D)(1)). "Therefore, an appeal even after a 

jointly recommended sentence is possible, and plain error can be applied to an allied 

offense issue." Helms at ¶ 50. 

{¶24} There was some discussion of the possibility of merger during the 
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change of plea portion of the hearing. Counts two and three are both endangering 

children convictions under different statutory subsections. Compare R.C. 

2919.22(B)(2) with R.C. 2919.22(A).1 Defense counsel and the prosecutor mentioned 

the possibility of those counts merging during the plea hearing, but no specific 

arguments were made. Both sides noted that the sentencing recommendation would 

be that the three sentences all run concurrently; no recommendation was made 

regarding merger, which is a distinct issue. 

{¶25} During sentencing, no arguments relative to merger were made and the 

trial court did not inquire as to whether the counts merged. To demonstrate plain 

error in this context, "an accused has the burden to demonstrate a reasonable 

probability that the convictions are for allied offenses of similar import committed with 

the same conduct and without a separate animus[.]" State v. Rogers, 143 Ohio St.3d 

385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. "[A]bsent that showing, the accused 

cannot demonstrate that the trial court's failure to inquire whether the convictions 

merge for purposes of sentencing was plain error." Id. 

{¶26} Pursuant to R.C. 2941.25(A), "Where the same conduct by defendant 

can be construed to constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such offenses, but the defendant 

may be convicted of only one." However, "[w]here the defendant's conduct 

constitutes two or more offenses of dissimilar import, or where his conduct results in 

two or more offenses of the same or similar kind committed separately or with a 

separate animus as to each, the indictment or information may contain counts for all 

such offenses, and the defendant may be convicted of all of them." R.C. 2941.25(B). 

{¶27} If a defendant's conduct supports multiple offenses, the defendant can 

be convicted of all of the offenses if any one of the following is true: 1) the conduct 

 

1 R.C. 2919.22(B)(2) (count two) provides: "No person shall do any of the following to a child under 

eighteen years of age * * *Torture or cruelly abuse the child[.]" 

R.C. 2919.22(A) (count three) provides: " No person, who is the parent, guardian, custodian, person 

having custody or control, or person in loco parentis of a child under eighteen years of age * * * shall 

create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or 

support. * * *" 
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constitutes offenses of dissimilar import, 2) the conduct shows the offenses were 

committed separately, or 3) the conduct shows the offenses were committed with 

separate animus. State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.3d 892, 

paragraph three of the syllabus, citing R.C. 2941.25(B). Two or more offenses are of 

dissimilar import within the meaning of R.C. 2941.25(B) "when the defendant's 

conduct constitutes offenses involving separate victims or if the harm that results 

from each offense is separate and identifiable." Id. at paragraph two of the syllabus. 

{¶28} Based upon the assertions made by the prosecutor at sentencing, there 

was separate conduct for all three offenses. The prosecutor noted the autopsy report 

indicated the cause of death to the child was blunt impacts to the child's head, trunk 

and extremities, and that there were abrasions and contusions all over the child's 

body. In addition, there were several, separate burn injuries to the child's feet, which 

were in "various stages" of healing; the prosecutor asserted that the evidence at trial 

would have shown those injuries had been there for up to five weeks. The State 

notes that the burn injuries formed the basis for the child endangering charges in the 

indictment. Further, according to the prosecutor, Fleischer admitted she never took 

the child for any form of medical treatment for the burns. Thus, Fleischer cannot 

demonstrate a reasonable probability that the convictions are for allied offenses of 

similar import committed with the same conduct and without a separate animus. 

There was no plain error in the failure to merge. 

{¶29} However, the trial court overstated the applicable term of post-release 

control, imposing a five-year mandatory term. It has long been held that " 'the postrelease control statute applies only to felonies of the first, second, third, fourth and 

fifth degree.' " State v. Williams, 7th Dist. No. 11–MA–24, 2012–Ohio–1475, ¶ 20, 

quoting State v. Young, 7th Dist. No. 09–MA–100, 2011–Ohio–2646, ¶ 68. See R.C. 

2967.28(B) and (C). Aggravated murder is an unclassified felony to which the postrelease control statute does not apply. Id. See also Threats, supra, at ¶ 18. 

{¶30} The highest classified felony to which Fleischer pled was a seconddegree felony, which carries a three-year mandatory term of post-release control. 
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R.C. 2967.28(B)(2). "If a person is convicted of both an unclassified felony and a 

classified felony, the court still has obligations regarding post-release control as it 

relates to the classified felony." Threats at ¶ 20. Accordingly, it appears a remand for 

a resentencing limited to the imposition of post-release control is appropriate. Id. at ¶ 

51 (applying this remedy in a case where, as here, the trial court overstated the 

applicable term of post-release control, in the entry and during the hearing.) 

{¶31} In sum, Fleischer's convictions and life without the possibility of parole 

for 20 years sentence is upheld, but the post-release control portion of her sentence 

is reversed and the matter remanded for a limited resentencing on the issue of postrelease control. 

Donofrio, J., concurs. 

Robb, P. J., concurs.