State v. Simmons , 2018 Ohio 4523 ( 2018 )

[Cite as State v. Simmons, 2018-Ohio-4523.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-12
:
v. : Trial Court Case No. 2017-CR-572
:
COREY F. SIMMONS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of November, 2018.
...........
PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
BYRON K. SHAW, Atty. Reg. No. 0073124, 4800 Belmont Place, Huber Heights, Ohio
45424
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} Defendant-Appellant, Corey F. Simmons, appeals from his conviction for
Theft, which resulted in a ten-month prison sentence. On June 22, 2018, Simmons’s
assigned counsel 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 there are no issues with arguable merit
to present on appeal. Counsel did not raise any potential assignments of error.
{¶ 2} On July 2, 2018, the State filed a response, and said it would submit the case
on the record. On July 5, 2018, we notified Simmons that his counsel found no
meritorious claim for review and granted him 60 days to file a pro se brief assigning any
errors. However, Simmons did not file a pro se brief. We also filed an order on July 5,
2018, requiring the trial court to file the presentence investigation (“PSI”) report, the victim
impact statement, if any, and any other documents the trial court reviewed in sentencing.
The trial court complied with our order.
{¶ 3} After reviewing the entire record, including the PSI report, and conducting
our independent Anders review, we find no issues with arguable merit for Simmons to
advance on appeal. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} On December 4, 2018, an indictment was filed from the Miami County Grand
Jury, alleging that Simmons had committed the crime of Theft in violation of R.C.
2913.02(A)(1), a felony of the fifth degree. On March 26, 2018, Simmons entered a plea
of guilty to the charge in the Miami County Common Pleas Court.
{¶ 5} The trial court fully complied with the requirements of Crim.R.11(C)(2) for
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accepting pleas. The court then accepted the guilty plea and ordered that a PSI be
conducted.
{¶ 6} On May 8, 2018, the trial court proceeded to sentencing. After finding that
Simmons had a prior felony record of convictions and a conviction for a misdemeanor of
violence within the past two years, the court found that mandatory community control did
not apply. The presentence investigation disclosed a very lengthy history of criminal
convictions and poor supervision history, which the trial court recited on the record as it
considered the appropriate sentence. After making specific findings under R.C. 2929.11,
R.C. 2929.12, and 2929.13, the court sentenced Simmons to serve ten months in prison
and to pay restitution to a stipulated amount. The court further granted Simmons a
stipulated jail credit.
{¶ 7} After being sentenced, Simmons filed a timely notice of appeal.
II. Discussion and Conclusion
{¶ 8} In an Anders review, we are required to decide “after a full examination of all
the proceedings,” whether an appeal is “wholly frivolous.” Anders, 386 U.S. at 744, 87
S. Ct. 1396, 18 L. Ed. 2d 493. See also Penson v. Ohio, 488 U.S. 75, 84-85, 109 S. Ct.
346, 102 L. Ed. 2d 300 (1988). Issues are not frivolous simply because the State “can be
expected to present a strong argument in reply.” State v. Pullen, 2d Dist. Montgomery
No. 19232, 2002-Ohio-6788, ¶ 4. Instead, an issue will lack arguable merit “if on the
facts and law involved, no responsible contention can be made that it offers a basis for
reversal.” Id.
{¶ 9} After conducting an independent review of the record pursuant to Anders, we
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agree with Simmons’s appellate counsel that, based on the facts and relevant law, there
are no issues with arguable merit to present on appeal. Accordingly, the judgment of the
trial court is affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Paul M. Watkins
Byron K. Shaw
Corey F. Simmons
Hon. Jeannine N. Pratt