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State v. Reed , 2018 Ohio 1876 ( 2018 )


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  • [Cite as State v. Reed, 
    2018-Ohio-1876
    .]
    IN THE COURT OF APPEALS OF OHIO
    SIXTH APPELLATE DISTRICT
    ERIE COUNTY
    State of Ohio                                       Court of Appeals No. E-17-037
    Appellee                                    Trial Court No. 2014-CR-509
    v.
    Eric Reed                                           DECISION AND JUDGMENT
    Appellant                                   Decided: May 11, 2018
    *****
    Brett A. Klimkowsky, for appellant.
    *****
    SINGER, J.
    Introduction
    {¶ 1} Appellant, Eric Reed, appeals the July 12, 2017 judgment of the Erie County
    Court of Common Pleas revoking his community control and imposing a five-year
    sentence for participating in a criminal gang in violation of R.C. 2923.42(A), a felony of
    the second degree.
    Background
    {¶ 2} On December 18, 2014, appellant was indicted on three counts:
    participating in a criminal gang in violation of R.C. 2923.42(C); aggravated rioting in
    violation of R.C. 2917.02(A)(2); and assault in violation of R.C. 2903.13(A).
    {¶ 3} On July 14, 2015, appellant entered a guilty plea to the participating in a
    criminal gang charge. The remaining counts were dismissed, and the prosecution
    recommended community control sanctions.
    {¶ 4} On August 25, 2015, a sentencing hearing was held and appellant was
    sentenced to five years community control. The September 8, 2015 sentencing entry
    states:
    IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by
    this Court that the defendant having been found guilty as to Count No. 1,
    for the offense of PARTICIPATING IN A CRIMINAL GANG, a second
    degree felony in violation of §2923.42(A) of the Ohio Revised Code— with
    a Presumption of Prison, shall be sentenced to community sanctions for a
    period of five (5) years beginning August 25, 2015; further, harsher
    sanctions, including a prison term of five (5) years, would be imposed if
    defendant does not comply with community sanctions.
    {¶ 5} Appellant did not timely appeal that judgment. Appellant was to comply
    with certain conditions while on community control, including to “obey federal, state and
    local laws and ordinances[.]” Appellant was alleged to have violated this condition
    2.
    because he committed aggravated burglary, burglary, or assault, in November 2016, as
    charged in Erie County C.P. case No. 2017-CR-0012.
    {¶ 6} The trial court found probable cause existed, and a hearing was scheduled
    for January 6, 2017. The hearing was continued numerous times and was held on July 7,
    2017. Appellant admitted, and the trial court found, that he violated his conditions. On
    July 10, 2017, the trial court revoked appellant’s community control.
    {¶ 7} Appellant was sentenced to five years incarceration, and was given 316 days
    credit for time served as of July 10, 2017. The judgment was journalized July 12, 2017,
    and appellant now appeals.
    Anders Brief
    {¶ 8} On November 2, 2017, 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 not submit any potential assignment of error, and the state did not
    file a response brief.
    {¶ 9} 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
    3.
    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.
    {¶ 10} The appellate court must conduct a full examination of the proceedings and
    decide if the appeal is indeed frivolous. 
    Id.
     If the appellate court determines the appeal
    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.
    Frivolousness of Appeal
    {¶ 11} Our examination of the proceedings reveals one potential assignment of
    error, which we decline to assess on its merit at this time. See, e.g., State v. Czech, 6th
    Dist. Lucas No. L-13-1141, 
    2014-Ohio-3990
    , ¶ 16.
    {¶ 12} The potential issue we find relates to whether the trial court failed to
    properly apply confinement credit to appellant’s sentence in accordance with common
    law as articulated in State v. Holmes, 6th Dist. Lucas No. L-08-1127, 
    2008-Ohio-6804
    .
    At the July 10, 2017 hearing, appellant asserted he should be awarded confinement credit
    for time spent on electronic monitoring. His counsel presented the issue as follows:
    [Counsel]: Oh, yes. So the issue is, I was going to say, and why we
    asked for a hearing, Your Honor, was with regards to whether or not Mr.
    Reed should receive credit, I was going to say, on his case with regards to
    4.
    electronic monitoring that he had while he was on probation, post-
    conviction probation on his, what is it, the 2014 case, I believe.
    {¶ 13} The trial court then allowed the prosecution to present its position on the
    issue, and it did so as follows:
    [Prosecutor]: Our position, Your Honor, as we stated last week, is
    that Mr. Reed was not sentenced to electronic monitoring house arrest by
    this Court. It was imposed as a community control violation when he
    violated his community control sanctions several times, Your Honor, and
    our argument, looking at the case law, the way we read it is that it would be
    credited as jail time credit if the Court had ordered it, which the Court did
    not, and [appellant’s counsel] and I were going to ask the Court to take
    judicial notice or even stipulate to the fact that the judgment entry from the
    2014-569 case, or is it 509, 509 case. In this judg— sentencing judgment
    entry the Court did not order electronic monitoring or house arrest for Mr.
    Reed, Your Honor.
    {¶ 14} The trial court recognized Holmes, yet denied appellant’s request. But see
    id. at ¶ 20. With respect to Holmes, and the relating case law, the court specifically stated
    as follows:
    Court: All right. And to be specific, the cases that are being cited
    in favor and against these two positions, specifically State v. Holmes, Sixth
    District, Lucas Number 08-1127, 
    2008-Ohio-6804
    , where the Sixth District
    5.
    held that a defendant should have been granted jail time credit under
    Revised Code Section 2949.08 for his time on post-conviction electronic
    mount— electronic monitoring house arrest. They— reason that because
    electronic monitoring constituted detention for purposes of an escape
    conviction, it shall— should also warrant, in the interest of justice, credit as
    time served.
    There is a split among the Ohio Appellate Districts. However, the
    Tenth District Court of Appeals in State v. Blankenship found that it was—
    that the defendant was not entitled to confinement credit. There is also
    State versus— State of Ohio v. Fillinger, I believe, out of the Twelfth
    District Appellate Court. * * *
    {¶ 15} In denying appellant’s request, however, the court specifically held as
    follows:
    Court: And so based on all of that, the Court, careful— after
    careful reading of all of these cases, is taking the position that the State has
    proposed. And so just to clarify for the record, the Court is not giving
    credit at this time for the post-release electronic monitoring house arrest or
    standard house arrest.* * *
    Anything further from either side? Your— your appellate rights will
    be preserved, and if the Court of Appeals finds that I’m wrong, you’ll be
    credited for the extra time at that point.
    6.
    {¶ 16} Based on our review, the record shows appellant served days on electronic
    monitoring since being sentenced to community control in September, 2015. Although
    electronic monitoring was not specifically imposed by the court against appellant, we
    cannot say, without the issue fully briefed, that he is not entitled to credit in contravention
    of our holding in Holmes. “Because an Anders brief is not a substitute for an appellate
    brief on the merits, we must ‘appoint counsel to pursue the appeal and direct that counsel
    is to prepare an advocate’s brief * * *’ before we can decide the merit of the issue.” State
    v. Hopkins, 6th Dist. Lucas No. L-10-1127, 
    2011-Ohio-4144
    , ¶ 11.
    Conclusion
    {¶ 17} Appointed counsel’s motion to withdraw is found well-taken and is
    granted. We appoint Brian A. Smith, 755 White Pond Drive, Suite 403, Akron, Ohio
    44320, as appellate counsel and advocate in this matter, and direct him to prepare an
    appellate brief discussing the arguable issue identified in this decision, and any additional
    potential errors, within 30 days of the date of this decision and judgment. The remaining
    briefing schedule shall proceed in accordance with App.R. 18. The clerk is ordered to
    serve by regular mail all parties, including Eric Reed, with notice of this decision.
    Motion granted.
    7.
    State v. Reed
    C.A. No. E-17-037
    Arlene Singer, J.                             _______________________________
    JUDGE
    Thomas J. Osowik, J.
    _______________________________
    James D. Jensen, J.                                       JUDGE
    CONCUR.
    _______________________________
    JUDGE
    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.supremecourt.ohio.gov/ROD/docs/.
    8.
    

Document Info

Docket Number: E-17-037

Citation Numbers: 2018 Ohio 1876

Judges: Singer

Filed Date: 5/11/2018

Precedential Status: Precedential

Modified Date: 5/11/2018