State v. Webster , 2017 Ohio 124 ( 2017 )

[Cite as State v. Webster, 2017-Ohio-124.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-25
:
v. : Trial Court Case No. 15-CR-566
:
ERIC WEBSTER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 13th day of January, 2017.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 315 South Monument Avenue, Hamilton,
Ohio 45011
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Eric Webster appeals his conviction and sentence to prison for six months
after entering a guilty plea to a charge of carrying a concealed weapon, a felony of the
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fourth degree. Finding no error we affirm.
{¶ 2} On November 2, 2015, Webster was indicted for improper handling of a
firearm in a motor vehicle and carrying a concealed weapon, a firearm, both felonies of
the fourth degree. The charges arose out of a traffic stop of a vehicle, in which Webster
was the passenger, due to a strong odor of marijuana that officers smelled from 2-3 car
lengths behind the vehicle which they followed for about four blocks. When the vehicle
was stopped, the flashlight of the officer on Webster’s side illuminated what was found to
be a loaded black semi-auto handgun under the front seat at Webster’s feet. At police
headquarters, Webster was advised of his Miranda rights. He then admitted he had found
the gun but had forgotten that it was under his seat.
{¶ 3} On February 22, 2016, Webster, represented by counsel, entered a guilty
plea to the CCW charge in exchange for dismissal of the improper handling charge. The
court referred the case for a presentence investigation. On March 14, 2016, the trial court
sentenced Webster to serve six months in prison.
{¶ 4} Webster’s counsel has filed a brief under Anders v. California, 386 U.S. 738,
87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), indicating that counsel was unable to identify any
viable appealable error for review and requesting our permission to withdraw as counsel.
By order filed August 23, 2016, we informed Webster that the Anders brief had been filed
and advised him of his right to file his own brief and the time limit for doing so. Webster
did not file anything, and the time for filing has expired. Webster has apparently completed
his sentence and is not subject to post-release control.1
1 This Court's review of the Ohio Department of Rehabilitation and Correction's website
confirms that Webster is no longer an inmate, nor is he subject to post-release control.
See State v. Erdman, 2d Dist. Montgomery No. 25814, 2014–Ohio–2997, ¶ 3 (taking
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Potential Issues
{¶ 5} Counsel’s Anders brief refers to three potential errors for our consideration,
the first of which is whether the trial court complied with Crim. R. 11 to insure that the plea
was knowingly, intelligently and voluntarily entered. We have carefully reviewed the plea
and observe that the trial court fully complied with Crim. R. 11 and the appropriate
statutes, and that the trial court also concluded that Webster’s plea was “knowingly,
voluntarily, [and] intelligently” made. (Transcript of Plea at 7). We agree that there was no
error in the taking of the plea and that any assignment of error challenging the plea would
be frivolous.
{¶ 6} Counsel also suggests as a potential issue whether the trial court properly
sentenced this first-time felony offender to prison or was community control mandatory.
Pursuant to R.C. 2929.13(B)(1)(b), a trial court has discretion to impose a prison term
upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence or that is a qualifying assault offense “if any of
the following apply: (i) The offender committed the offense while having a firearm on or
about the offender's person or under the offender's control.” Id. We have previously held
carrying a concealed firearm qualifies as an offense which allows discretion to impose a
prison term under R.C. 2929.13(B)(1)(b)(i). An assignment of error to the contrary would
be frivolous.
{¶ 7} Finally, counsel suggests, without further argument, that there may be a
potential issue whether Webster’s sentence is contrary to law. But the sentence is clearly
judicial notice appellant's name is not listed on the ODRC website).
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within the statutory range for a fourth degree felony and there is absolutely nothing in the
record to indicate the sentence is unlawful. An argument that Webster’s sentence is
contrary to law is frivolous.
Anders Review
{¶ 8} We have conducted a full examination of all the proceedings to decide
whether the case is wholly frivolous, as required by Penson v. Ohio, 488 U.S. 75, 80, 109
S. Ct. 346, 102 L. Ed. 2d 300 (1988), citing Anders at 744. We have thoroughly reviewed
the docket, the various filings, the written transcripts of the plea hearing and the
sentencing hearing, and the court’s judgment and sentencing entry. We have found no
non-frivolous issues for review. Accordingly, we grant counsel’s request to withdraw and
the judgment of the Clark County Common Pleas Court is affirmed.
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FROELICH, J., and WELBAUM, J., concur.
Copies mailed to:
Megan M. Farley
Scott N. Blauvelt
Eric Webster
Hon. Douglas M. Rastatter