[Cite as State v. Green , 2021-Ohio-15.]

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

STATE OF OHIO Plaintiff-Appellee

v. MICHAEL RAYMOND GREEN Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-6

Trial Court Case No. 2019-CR-211 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 8th day of January, 2021.

. . . . . . . . . . . SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0092010, Assistant Pros ecuting 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 Stre et, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

. . . . . . . . . . . . . WELBAUM, J.-2- {¶ 1} Defendant-appellant, Michael Raymond Green, appeals from his co nviction in the Champaign County Court of Common Pleas after pleading gu ilty to one count of operating a vehicle under the influence of alcohol or drugs (“O VI”) with a repeat offender specification, one count of aggravated vehicular assault, and t wo counts of vehicular assault. On August 6, 2020, Green’s assigned counsel filed a b rief under the authority

of Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no issues with arguable merit to present on appe al 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 m eritorious claims for appeal and granted him 60 days to file a pro se brief assigning any er rors. On September 8, 2020, Green filed a pro se brief that contained arguments chall enging his sentence and the indicted charges. The State then filed a brief opposing Gr een’s arguments. {¶ 2} After reviewing Green’s pro se arguments and his counsel’s pote ntial 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 appea l. 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 Gr een 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 o f the counts included a specification that Green was a repeat offender who had five pri or OVI offenses within the-3- past 20 years. {¶ 4} The charges arose from an incident at the Champaign County Fair grounds on August 3, 2019. Bystanders at the fairgrounds reported a bl ack Chevy Silverado striking another vehicle in the parking lot and then driving aw ay 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 coole r inside of Green’s vehicle that contained several cans of Bud Light and a Styrofoam cup th at smelled of beer. Green was then taken into custody and charged with the aforemen tioned OVI offenses and repeat offender specifications. {¶ 5} Following his indictment, Green was released on bond. While aw aiting 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 wit h 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 occu pants who were physically injured as a result of the collision. When law enfo rcement arrived at the scene, the investigating officers detected a strong odor of an alcohol ic beverage on Green’s person. Green refused any testing for intoxication, but admitt ed 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 offe nses 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 Champa ign 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 subs equent 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 off ender 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 vehic ular 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 agr eed to dismiss the remaining charges and specifications and to recommend a presentence inves tigation (“PSI”). The State also agreed to recommend a total term of 19 years in pris on if the PSI did not reveal any unknown information regarding Green’s criminal history. Th e State further agreed to remove language from the vehicular assault charges stating t hat he was driving under suspension during the offenses, which ultimately amended the ve hicular 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 Gree n’s guilty plea as knowingly, intelligently, and voluntarily entered. The tria l court then ordered a PSI and scheduled Green’s case for sentencing. At the sentencing h earing, 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 eac h of the two vehicular assault counts, and, in accordance with the recently enacted Re agan Tokes Law, an indefinite sentence of 8 to 12 years in prison for aggravated v ehicular assault. The trial court then ordered all of the prison terms to be served consecu tively for an aggregate term of 14 to 18 years in prison. The trial court also sentenc ed Green to five years in prison for the repeat OVI offender specification. The trial co urt 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, G reen’s appellate counsel filed an Anders brief that raised one potential assignment of error challenging the validity of Green’s guilty plea. Green also fi led a pro se brief that challenged his sentence and th e indicted charges. We will addr ess 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 potential ly reversible error that are raised by appellate counsel or by a defendant in his pro se bri ef are ‘wholly frivolous.’ ” State v. Marbury , 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7, quoting Anders , 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. An issue is wh olly 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, 2002-Ohio-6788, ¶ 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 d ifferent 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 s uggested 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 sp ecific violation of Crim.R. 11. Instead, counsel generally requested that this court revie w the plea proceedings for compliance with the rule. {¶ 12} “Ohio’s Crim.R. 11 outlines the procedures that trial courts ar e to follow when accepting pleas.” State v. Dangler , Ohio Slip Opinion No. 2020-Ohio-2765, __ N.E.3d __, ¶ 11. “[T]he rule ‘ensures an adequate record on re view 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 ma de.’ ” Id ., quoting State

v. Stone , 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975). The Supreme C ourt of Ohio has urged trial courts to comply literally with Crim.R. 11. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. However, in reviewi ng 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 a nd: (a) Determining that the defendant is making the plea voluntari ly, 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 sancti ons at the sentencing hearing. (b) Informing the defendant of and determining that the defenda nt understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment a nd

sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the right s to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s f avor, 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 pl ea vacated unless he demonstrates he was prejudiced by a failure of the tr ial court to comply with the provisions of Crim.R. 11(C).” Dangler at ¶ 16, citing State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “The test for prejudice is ‘whethe r the plea would have

otherwise been made.’ ” Id ., quoting Nero at 108. There are, however, two exceptions-8- to this rule. Id . at ¶ 14-16. {¶ 15} The first exception is that the trial court must comply strictl y with Crim.R. 11(C)(2)(c) as it pertains to the waiver of federal constitutio nal 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 invo luntarily and unknowingly, and no showing of prejudice is required.” Id ., citing Clark, 119 Ohio St.3d 239, 2008- Ohio-3748, 893 N.E.2d 462, at ¶ 31. {¶ 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 , 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. However, a defendant still must show prejudice if the trial cou rt partially complied with Crim.R. 11(C) in regard to a non-constitutional right. State v. Bishop , 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 19. {¶ 17} We have reviewed the transcript of the plea hearing in this cas e and find that the trial court fully complied with Crim.R. 11(C). With r espect to the requirements under Crim.R. 11(C)(2)(a), the record establishes that the tria l court advised Green of the

nature of his offenses and that Green indicated he understood t hem. 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 me dications. 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 indic ated 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 th e charges, and had been-9- given all the information he needed to enter a knowing, intelli gent, 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 the n 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 specificati on plus an aggregate term of 14 to 18 years in prison for his offenses, meaning that he w ould 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 pr ison term for the offenses, there was a presumption that he would be released fro m prison. However, the trial court advised that the presumption for release could be r ebutted by the prison system. The trial court explained that if the presumption for release w ere successfully rebutted, Green could be retained in prison up to the aggregate 18-year m aximum 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 tha t post-release control was mandatory for three years. The trial court then advised Gr een that a license suspension was mandatory for all of his offenses and that the m aximum suspension he

could receive would be for his lifetime. The trial court addit ionally 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 h e understood the maximum possible penalty for his offenses. {¶ 21} For the foregoing reasons, we find that the trial court complie d 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). Specif ically, Green indicated that he understood that a guilty plea was a complete admission of hi s guilt, that the trial court could proceed immediately to sentencing, and that he was waivin g 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. 1 1(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 decisio n 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 stan dard of review set forth in R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016--11- Ohio-1002, 59 N.E.3d 1231, ¶ 1 and 7. Under that statute, an a ppellate court may increase, reduce, or modify a sentence, or it may vacate the se ntence 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 (includi ng 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 require d to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing heari ng and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio3177, 16 N.E.3d 659, 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) consecu tive sentences are not disproportionate to the seriousness of the offender’s conduct a nd to the danger the offender poses to the public; and (3) one or more of the follow ing 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 sanc tion imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior off ense. (b) At least two of the multiple offenses were committed as par t 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 o f the

offender’s conduct. (c) The offender’s history of criminal conduct demonstrates tha t 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 cou rt’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 , 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). The consecutive nature of the trial court’s s entencing decision should therefore stand “unless the record overwhelmingly supports a co ntrary result.” (Citation omitted.) Id . at ¶ 39. {¶ 27} After reviewing the record, we find that the trial court made a ll 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 Gree n’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 c ommitted 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 t o support the aforementioned consecutive-sentence findings. First and foremo st, the record establishes that Green had an extensive criminal history. Gree n argues that the trial

court should not have been able to consider his criminal histor y 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 wh en determining the likelihood of recidivism. Therefore, “an offender’s prior crim inal conduct bears directly on a sentencing court’s decision on the length of sentence to i mpose.” State v. Bromagen , 1st Dist. Hamilton No. C-120148, 2012-Ohio-5757, ¶ 9. Accord State v.

Ward , 2d Dist. Clark No. 2015-CA-115, 2018-Ohio-1230, ¶ 34.

{¶ 29} Here, Green’s PSI report established that, between 1987 and 200 9, Green acquired ten OVI convictions in six different counties. The in formation pertaining to each of those convictions is set forth in the following table:

Yea r Offense Count y Sentence 1987 OVI – M1 Champaign Count y 3-day jail term 1

1988 OVI

– M1 Champai g n 3-da y j ail term 2

1 The sentencing information for Green’s 1987 OVI offense was no t 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 no t in the PSI report. Green informed the trial court of the sentence he received for that offense at his sentencing hearing.-14- Count y 1994 OVI – M1 Champaign Count y 10-day jail term

1994 OVI – M1 Clark Count y Unknown 1998 OVI – M1 Champaign Count y Fines, costs, and substance abuse treatment

1999 OVI – F4 Preble Count y 4 years community control (community control revoked in 2002 ) 2002 OVI – M1 Delaware Count y 30-day jail term and 5 years community control ( communit y control revoked in 2005 ) 2004 OVI – F4 Clinton Count y 12-month prison term 2007 OVI – F4 Fayette Count y 6-month prison term

2009 OVI – F3 Clark Count y 4-year prison term

{¶ 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 1 6 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, ho wever, was revoked in 2000, and Green was required to serve 10 months in prison. Ove r 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 alcohol ism seriously and was a danger to society. Green advised the trial court tha t he first recognized his substance abuse problem in 2000, yet he continued to acquire se veral OVIs between 2000 and 2009. Moreover, despite being imprisoned and having h is driver’s license suspended multiple times, Green continued his conduct of drivin g while intoxicated when he should not have been driving at all. The record also indica ted that Green had sought minimal treatment for his substance abuse problem. Prior to th e incidents in question, other than prison programming, Green only attended outpatient t reatment 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 whic h 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 sec ond 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 i n the vehicle, suffered bruised ribs, tissue damage, and a broken thumb. Because the m other 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 apa rtment. {¶ 33} For all the foregoing reasons, any contention that the record f ailed 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 cou rt’s sentencing decision was otherwise contrary to law. “A sentence is contrar y 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 , 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.). “ ‘The trial court has full d iscretion to impose any sentence within the authorized statutory range, and the court i s not required to make any-16- findings or give its reasons for imposing maximum or more than minimum sentences.’ ” State v. Fyffe , 2018-Ohio-112, 109 N.E.3d 51, ¶ 31 (2d Dist.), quoting State v. King , 2013- Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). {¶ 35} In this case, the record of the sentencing hearing and the sent encing entry indicate that prior to issuing its sentencing decision, the tri al court considered the purposes and principles of felony sentencing in R.C. 2929.11, a s 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 sent ences 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 tri al court’s decision to impose maximum, con secutive sentences lacks arguabl e merit.

Indicted Charges {¶ 37} Green also claims that the 13 charges in his indictment were ex cessive and unfair. However, “by entering a voluntary guilty plea while re presented by competent counsel, [Green] waived his right to appeal all non[-]jurisdict ional defects in prior stages of the proceedings.” (Citations omitted.) State v. Guerra , 2d Dist. Miami No. 2015-CA28, 2016-Ohio-5647, ¶ 9. Therefore, Green has waived the right to appeal any alleged defects in his indictment, including that the charges in the in dictment were excessive.

See State v. Black , 8th Dist. Cuyahoga No. 102586, 2017-Ohio-953, ¶ 9 (a guilty p lea-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, 2018-Ohio-3284, ¶ 8 (“a guilty plea waives the right to claim error rising from a d efective indictment”); State v. Lopez , 2d Dist. Greene No. 99-CA-120, 2003-Ohio-3974, ¶ 14 (”a defen dant who, prior to pleading guilty, fails to assert that the indictment is defe ctive, waives any error in the indictment”). Accordingly, Green’s claim that the charges in h is indictment were

excessive and unfair l acks arguable merit.

Conclusion {¶ 38} For the foregoing reasons, counsel’s potential assignment of er ror and Green’s pro se arguments lack arguable merit. Furthermore, aft er 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.

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