State v. Carnicom , 2016 Ohio 7290 ( 2016 )

[Cite as State v. Carnicom, 2016-Ohio-7290.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-15-077
Appellee Trial Court No. 2013 CR 0373
v.
Shawn Carnicom DECISION AND JUDGMENT
Appellant Decided: October 7, 2016
*****
Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold and
David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellee.
Mollie B. Hojnicki-Mathieson, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Shawn Carnicom, appeals the November 24, 2015 judgment of
the Wood County Court of Common Pleas revoking his community control and imposing
a one-year sentence for forgery in violation of R.C. 2950.04(E)(2) and 2913.31, a felony
of the fifth degree. For the reasons that follow, we affirm.
Background Facts
{¶ 2} Appellant was indicted on one count of forgery. Appellant entered a not
guilty plea to the charge. On April 24, 2014, appellant withdrew his plea of not guilty
and entered a plea of guilty.
{¶ 3} On June 16, 2014, a sentencing hearing was held and appellant was
sentenced to two years community control. As a condition of his community control,
appellant was to complete the SEARCH program of the NorthWest Community
Corrections Center. Appellant was also notified a violation of his community control
sanction may lead to a prison term of one year and imposition of postrelease control of up
to three years. This judgment was journalized June 18, 2014. Appellant did not timely
appeal this judgment but, on May 12, 2015, appellant filed a motion to reconsider his
sentence with the trial court. The motion was denied on June 15, 2015.
{¶ 4} On October 16, 2015, the state filed a petition to revoke appellant’s
community control because he failed to complete the SEARCH program. Appellant was
discharged from the program because he accumulated six warnings and eight sanctions,
thereby being deemed as failing to progress. A community sanction violation hearing
was held, on November 19, 2015, and the trial court found appellant violated his
community control. Appellant was sentenced to one year incarceration, and was given
credit for 207 days of time served, for the violation. The judgment was journalized
November 24, 2015. It is from this judgment appellant now appeals.
2.
Anders Brief
{¶ 5} On March 31, 2016, appellant’s counsel filed a request to withdraw pursuant
to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel
asserted, after thoroughly reviewing the transcript of proceedings in the trial court and the
applicable case law, no meritorious assignments of error could be presented. Counsel did
submit one potential assignment of error claiming appellant’s sentence was contrary to
law. The state filed a brief, concurring with the conclusion of appellant’s counsel that
there was no arguable basis for a meritorious assignment of error and urging this court to
permit counsel to withdraw.
{¶ 6} The procedure to be followed by appointed counsel who desires to withdraw
for want of a meritorious, appealable issue is set forth in Anders, as well as State v.
Duncan, 57 Ohio App. 2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the U.S.
Supreme Court found if counsel, after a conscientious examination of the case,
determines it to be wholly frivolous, counsel should so advise the court and request
permission to withdraw. Anders at 744. This request must be accompanied by a brief
identifying anything in the record which could arguably support the appeal. Id. In
addition, counsel must furnish the client with a copy of the brief and request to withdraw
and allow the client sufficient time to raise any matters the client so chooses. Id. Once
the requirements are fulfilled, the appellate court must conduct a full examination of the
proceedings and decide if the appeal is indeed frivolous. Id. If the appellate court
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determines the argument is frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal or it may proceed to a decision on the merits. Id.
{¶ 7} Here, appellant’s counsel has satisfied the requirements set forth in Anders.
Appellant has not filed a pro se brief or otherwise responded to counsel’s request to
withdraw. Accordingly, we shall proceed with an examination of the potential
assignment of error set forth by appellant’s counsel as well as the entire record below to
determine if this appeal lacks merit and is, therefore, wholly frivolous.
Proposed Assignment of Error
{¶ 8} Appellant’s counsel sets forth the following proposed assignment of error:
Appellant’s sentence is contrary to law.
{¶ 9} The court must therefore determine if the sentence is amply supported by the
facts on record.
{¶ 10} “An appellant court may vacate or modify any sentence that is not clearly
and convincingly contrary to law only if the appellate court finds clear and convincing
evidence that the record does not support the sentence.” State v. Marcum, __Ohio
St.3d__, 2016-Ohio-1002, __N.E. 3d__, ¶ 23.
{¶ 11} R.C. 2953.08(G)(2) provides an appellate court may increase, reduce,
modify, or vacate a sentence and remand for resentencing where there is clear and
convincing evidence 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(I), or the sentence is
otherwise contrary to law. Moreover, R.C. 2929.17 provides “the court imposing a
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sentence for a felony upon an offender who is not required to serve a mandatory prison
term may impose [community control].” See State v. Barron, 10th Dist. Franklin No.
09AP-458, 2009-Ohio-5785, ¶ 21(imposing two years community control for fifth degree
felony).
{¶ 12} If the conditions of a community sanction are violated, the sentencing court
may impose upon the violator a prison term pursuant to R.C. 2929.14. See R.C.
2929.15(B)(1)(c). This prison term “shall be within the range of prison terms available
for the offense for which the sanction that was violated was imposed and shall not exceed
the prison term specified in the notice provided to the offender at the sentencing hearing
pursuant to [R.C. 2929.19(B)(2)].” The prison term for fifth degree felonies ranges from
six months to one year incarceration. See R.C. 2929.14(A)(5).
{¶ 13} Here, the record reveals appellant’s sentence is not contrary to law.
Appellant violated his community control sanction by failing to complete the SEARCH
program in 2014. At the June 2014 sentencing, appellant was properly notified of this
condition of his community control and the possible sanction for violating it. The record
supports appellant violated the condition because he accumulated six warnings and eight
sanctions while in the program. The one-year sentence imposed upon appellant for the
violation is within the permissible statutory sentencing range for a fifth degree felony.
Furthermore, the trial court properly considered the purposes and principles of
sentencing, as stated in R.C. 2929.11, as well as the factors in R.C. 2929.12. Therefore,
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the trial court’s sentence is not contrary to law and the proposed assignment of error is
without merit.
{¶ 14} Last is our examination of the record to determine whether this appeal is
frivolous. Anders, 386 U.S. at 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Review of the
record, including the submitted transcript of the proceedings, does not disclose any errors
by the trial court which would justify a reversal of the judgment. We find this appeal to
be wholly frivolous, and counsel’s request to withdraw is found well-taken and is
granted.
Conclusion
{¶ 15} The judgment of the Wood County Court of Common Pleas is hereby
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
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
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This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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