State v. Curtis ( 2019 )

[Cite as State v. Curtis, 2019-Ohio-1545.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-64
:
v. : Trial Court Case No. 2017-CR-0640
:
BRIAN D. CURTIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of April, 2019.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
RENEE D. BUSSE, Atty. Reg. No. 0092823, 10890 North Patterson Road, Piqua, Ohio
45356
Attorney for Defendant-Appellant
.............
TUCKER, J.
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{¶ 1} Appellant, Brian Douglas Curtis, while on post-release control (PRC),
pleaded guilty to possession of cocaine, a fifth-degree felony. The trial court sentenced
Curtis to a 12-month prison term on the cocaine possession charge and to an additional
12-month prison term for the PRC violation; as statutorily required, the trial court ordered
that the sentences be served consecutively. On appeal, counsel has filed a brief under
the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
indicating she could find no arguably meritorious appellate issues. We concur in this
conclusion, and, as a result, the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} While on PRC after serving an 11-month prison term for two breaking and
entering convictions, Curtis was indicted for cocaine possession, a fifth-degree felony,
and tampering with evidence, a third-degree felony. Trial counsel filed a suppression
motion, but it was withdrawn just before Curtis entered into a negotiated plea. The
negotiated plea required Curtis to enter a guilty plea to the cocaine possession count,
and the tampering with evidence count was dismissed.
{¶ 3} The trial court, during the Crim.R. 11 colloquy, discussed PRC prospectively
as follows:
***
If the defendant were to commit a felony while on post-release
control, he could go back to prison for at least one year and up to the amount
of time remaining on the post-release control if it’s greater than one year.
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That time would have to be served consecutively to any sentence he
receives on the new felony.
{¶ 4} The trial court additionally discussed the potential immediate effect on
Curtis’s PRC status as follows:
THE COURT: You were placed on post-release control on January 17,
2016, for a period of three years. Is that correct?
DEFENDANT: Yes, sir.
THE COURT: Do you understand that under the Revised Code any
sentence you receive - - or as a result of being found guilty of a felony, if
you go back to prison on the prior case for at least one year and up to the
amount of time remaining on post-release control if it’s greater than a year.
DEFENDANT: Yes, sir.
THE COURT: That would have to be served, by statute, consecutive to any
sentence you receive on this case. Do you understand that?
DEFENDANT: Yes, sir.
{¶ 5} Finally, the plea form Curtis signed stated the following regarding PRC:
I understand that if I am now on felony probation, parole, or under
post-release control from prison, this plea may result in revocation
proceedings and any new sentence will be imposed consecutively.
Curtis indicated that he had read and reviewed the plea form with his attorney before he
signed it, that he understood its content, and that he had no questions regarding the plea
form.
{¶ 6} The trial court sentenced Curtis to a 12-month prison term for the cocaine
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possession count, revoked the PRC, and sentenced Curtis to a 12-month prison term for
being convicted of a felony while on PRC. The trial court ordered that the two sentences
be served consecutively, resulting, of course, in a 24-month prison term. On appeal,
counsel was appointed to represent Curtis.
{¶ 7} Counsel has filed an Anders brief stating that she “does not believe [Curtis]
has any meritorious issues to present for appellate review.” Counsel has also requested
leave to withdraw as Curtis’s appellate counsel.
{¶ 8} Consistent with her duty under Anders, counsel has suggested two possible
appellate issues as follows: (1) that an appellate court could find by clear and convincing
evidence that Curtis’s sentence was not supported by the record, and (2) that the motion
to suppress should have been granted. Curtis was informed of the Anders filing and of
his right to file a pro se brief. Curtis has not filed a brief.
Anders Standard
{¶ 9} An appellate court, upon the filing of an Anders brief, has a duty to determine,
“after a full examination of the proceedings,” whether the appeal is, in fact, “wholly
frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488
U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based
upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d
Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is present
when, “on the facts and law involved, no responsible contention can be made that offers
a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-
3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders
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brief and appoint new counsel to represent the defendant.
Anders Review
{¶ 10} Counsel first suggests Curtis’s sentence as a possible appellate issue. A
“trial court has full discretion to impose any sentence within the authorized statutory
range, and it is not required to make any findings or give its reasons for imposing [a]
maximum or more than minimum sentence[ ].” State v. King, 2013-Ohio-2021, 992
N.E.2d 491, ¶ 45 (2d Dist.), citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470. An appellate court may vacate or modify a sentence “only if it determines
by clear and convincing evidence that the record, under the pertinent statutes, does not
support the sentence, or the sentence is otherwise contrary to law.” State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; see also R.C. 2953.08(G)(2).
A sentence is not contrary to law as long as it is within the statutory range and the trial
court states that it has considered R.C. 2929.11 (purposes and principles of felony
sentencing) and the R.C. 2929.12 factors. State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d
1069, ¶ 32 (2d Dist.). Leaving aside the PRC sentence, which will be discussed
separately, the trial court’s sentence on the cocaine possession count was within the
statutory range, and the trial court indicated consideration of R.C. 2929.11 and R.C.
2929.12. Further, the record, in particular Curtis’s lengthy criminal history, supports the
imposed sentence. Thus, any appellate argument attacking Curtis’s maximum sentence
on the cocaine possession count would be frivolous.
{¶ 11} Counsel also suggests as a possible assignment of error that the trial court
should have sustained the motion to suppress. Since the motion was withdrawn, this
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suggestion will be reviewed as a potential argument that trial counsel rendered ineffective
assistance by not pursuing the motion to its conclusion. A defendant’s guilty plea acts
as a waiver of all error, including a claim of ineffective assistance of counsel, “except to
the extent that [any error] precluded the defendant from knowingly, intelligently, and
voluntarily entering * * * his guilty pleas.” State v. Rozell, 2018-Ohio-1722, 111 N.E.3d
861, ¶ 40 (2d Dist.), quoting State v. Leonard, 2d Dist. Montgomery No. 27411, 2017-
Ohio-8421, ¶ 13. Therefore, a defendant, in order to establish ineffective assistance of
counsel within the context of a guilty plea, must establish that counsel’s advice regarding
the guilty plea was outside the “range of competence demanded of attorneys in criminal
cases[,]” and there is a “reasonable probability” that had he been adequately advised, he
“would not have pleaded guilty * * *.” Id. at ¶ 40, quoting State v. Huddleston, 2d Dist.
Montgomery No. 20653, 2005-Ohio-4029, ¶ 9. (Other citations omitted.) On this
record, under this standard, asserting ineffective assistance of trial counsel would be a
frivolous argument.
{¶ 12} A potential appellate issue not raised by counsel but which deserves
discussion is the trial court’s imposition of the additional 12-month prison term stemming
from Curtis’s PRC revocation. R.C. 2929.141(A)(1) provides that, when a defendant on
PRC is, through plea or trial, convicted of a new felony, the trial court, in addition to any
prison term for the new felony, may terminate the PRC and impose an additional prison
term. This additional term may be the greater of 12-months or the remaining PRC period.
The additional prison term must be served consecutively to the prison term for the new
felony. R.C. 2929.141(A)(1). The trial court’s PRC revocation and additional sentence
in this case are consistent with R.C. 2929.141(A)(1), and it would be frivolous to argue
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otherwise.
{¶ 13} The Ohio Supreme Court, in State v. Bishop, Ohio Slip Opinion No. 2018-
Ohio-5132, ___ N.E.3d ___, recently ruled that when a trial court imposes a sentence
under R.C. 2929.141(A)(1), the Crim.R. 11(C)(2)(a) maximum penalty advisement is
implicated. Specifically, the court ruled that “Crim.R. 11(C)(2)(a) requires a trial court to
advise a criminal defendant on [PRC], during his plea hearing in a new felony case, of the
trial court’s authority to terminate [PRC] and * * * impose a consecutive prison sentence
for the [PRC] violation.” Bishop at ¶ 21. The Supreme Court additionally noted that the
Crim.R. 11 maximum penalty advisement does not implicate a constitutional right. The
Court then discussed the differing results following a trial court’s substantial, partial, or
non-compliance with an advisement requirement regarding a non-constitutional issue.
First, when the Crim.R. 11 issue does not relate to a constitutional right, a trial court’s
substantial, as opposed to strict, compliance with the rule’s requirement will not affect a
plea’s validity. Secondly, a trial court’s partial compliance with a Crim.R. 11 non-
constitutional advisement requirement requires a defendant to establish that if there had
been at least substantial compliance, he would not have entered into the plea. If this is
established, the plea must be vacated. Finally, if there is no compliance with a Crim.R.
11 non-constitutional advisement requirement, the plea must be vacated. Bishop at
¶ 18.
{¶ 14} Turning to the pending case, the trial court’s wording perhaps could have
been more precise, but it confirmed that Curtis was on PRC, that if he went to prison on
the “prior case” the prison term would be “for at least one year and up to the amount of
time remaining on [PRC] if * * * greater than one year,” and that this sentence would have
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to be served in a consecutive fashion “to any sentence * * * on [the pending] case.”
Further, the trial court’s plea discussion concerning the prospective consequences of
committing a new felony while on PRC was precise and correct. Finally, the plea form
informed Curtis that his guilty plea could result in revocation of PRC and that any “new”
sentence would be “imposed consecutively.” Given this record, it would be frivolous to
argue that the trial court, when taking into account Curtis’s PRC status, did not at least
substantially comply with the Crim.R. 11(C)(a)(2) maximum penalty advisement.
{¶ 15} We have, additionally, reviewed the entire record. In addition to the issues
already discussed, our review has included the sentencing entries and the presentence
investigation. This review has not disclosed any arguably meritorious appellate issues.
Conclusion
{¶ 16} We have found no non-frivolous issues for appellate review. Counsel’s
motion to withdraw is granted, and the judgment of the Clark County Common Pleas
Court is affirmed.
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WELBAUM, P.J. and HALL, J., concur.
Copies sent to:
Andrew P. Pickering
Renee D. Busse
Brian D. Curtis
Hon. Richard J. O’Neill