State v. Stewart ( 2011 )

[Cite as State v. Stewart, 2011-Ohio-181.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 09CA33
:
vs. : Released: January 13, 2011
:
BRANDON T. STEWART, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Warren N. Morford, Jr., South Point, Ohio, for Appellant.
J.B. Collier, Jr., Lawrence County Prosecutor, and Jeffrey M. Smith,
Lawrence County Assistant Prosecutor, Ironton, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.:
{¶1} Defendant-Appellant, Brandon T. Stewart, appeals the decision
of the Lawrence County Court of Common Pleas that found him guilty of
violating the terms of his previously-imposed community control sanctions
and that sentenced appellant to a three-year prison term to be served
consecutively to a prison sentence appellant received in a different case.
Appellant’s counsel, after reviewing the record, states he can find no
Lawrence App. No. 09CA33 2
meritorious claim for appeal and, pursuant to Anders v. California, requests
permission to withdraw from the case. However, counsel presented one
potential assignment of error for us to consider. Counsel suggests that the
trial court erred by sentencing appellant to consecutive prison terms.
Because we find this potential assignment of error to be wholly frivolous, we
grant counsel’s request to withdraw and affirm the decision of the trial court.
I.
FACTS
{¶2} On October 1, 2008, the trial court convicted appellant of
burglary, in violation of R.C. 2911.02(A)(3), and of theft of a dangerous
drug, in violation of R.C. 2913.02(A)(1). The court sentenced appellant to
concurrent prison terms of four years for the robbery offense and of
seventeen months for the theft of dangerous drug offense. On February 9,
2009, the court granted appellant judicial release.
{¶3} On September 20, 2009, appellant committed new criminal
offenses. At a November 4, 2009 hearing, appellant waived presentment of
the charges to a grand jury and agreed to proceed under a bill of
information.1
1
The burglary and resisting arrest charges were assigned a new case number, 09CR289. The trial court
appears to have combined the plea and sentencing hearing for that case number with the case number that
gives rise to the instant appeal, 08CR285. We further note that appellant filed a notice of appeal under
case number 09CR289, but it apparently was dismissed for failure to prosecute.
Lawrence App. No. 09CA33 3
{¶4} On November 18, 2009, the court held a hearing regarding the
alleged community control violations that apparently occurred as a result of
appellant’s new criminal offenses and also held a plea and sentencing
hearing regarding the new charges. The state recited that the parties had
reached a plea agreement that provided appellant would serve three years in
prison for the community control violation to be served consecutively to a
three-year sentence on the new burglary charge, to be served concurrently to
a sixty-day jail term on the new resisting arrest charge. Appellant’s counsel
indicated that the prosecutor accurately recited the plea agreement. The
court then sentenced appellant in accordance with the plea agreement. The
court further informed appellant that it would entertain a motion for judicial
release after appellant serves four years.
II.
Anders Brief
{¶5} Appellant’s counsel has filed an Anders brief in this action.
Under Anders v. California (1967), 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493, counsel may ask permission to withdraw from a case when counsel has
conscientiously examined the record, can discern no meritorious claims for
appeal, and has determined the case to be wholly frivolous. Id. at 744; State
v. Adkins, Gallia App. No. 03CA27, 2004-Ohio-3627, at ¶8. Counsel’s
Lawrence App. No. 09CA33 4
request to withdraw must be accompanied with a brief identifying anything
in the record that could arguably support the client’s appeal. Anders, 386
U.S. at 744; Adkins at ¶8. Further, counsel must provide the defendant with
a copy of the brief and allow sufficient time for the defendant to raise any
other issues, if the defendant chooses to do so. Id. Once counsel has
satisfied these requirements, the appellate court must conduct a full
examination of the trial court proceedings to determine if meritorious issues
exist. If the appellate court determines that the appeal is frivolous, it may
grant counsel’s request to withdraw and address the merits of the case
without affording the appellant the assistance of counsel. Id. If, however,
the court finds the existence of meritorious issues, it must afford the
appellant assistance of counsel before deciding the merits of the case.
Anders, 386 U.S. at 744; State v. Duran, Ross App. No. 06CA2919, 2007-
Ohio-2743, at ¶7.
{¶6} In the current action, Appellant’s counsel concludes the appeal is
wholly frivolous and has asked permission to withdraw. Pursuant to Anders,
counsel has filed a brief raising one potential assignment of error for this
court to consider.
III.
Potential Assignment of Error
Lawrence App. No. 09CA33 5
“The defendant/appellant, Brandon T. Stewart, may assert as an
assignment of error, that, according to State v. Foster, 2006-
Ohio-856, the trial court failed to conduct the requisite judicial
fact finding prior to imposing sentences beyond the minimum,
concurrent sentences dictated or mandated by the Ohio
statutory sentencing scheme and a jury verdict alone, or as in
this case, an admission to violation of community control
sanctions and guilty pleas to a two (2) count Bill of
Information. Stewart would assert that the Foster Court
invalidated R.C. 2929.14(B)(2), (C) and (E)(4) as violative of
the Federal Sixth Amendment Rights. These constitutionally
infirm Code sections required impermissible judicial fact-
finding in order to impose sentences beyond the minimum,
concurrent sentences authorized by the jury verdict alone.”
IV.
ANALYSIS
{¶7} We agree with appellant’s counsel that an appeal based upon the
trial court’s imposition of consecutive sentences would be wholly frivolous.
Appellant’s potential assignment of error asserts that the trial court failed to
comply with R.C.2929.14 prior to imposing consecutive sentences.
Appellant contends that the statute requires the trial court to enter certain
findings before imposing a consecutive sentence. However, the Ohio
Supreme Court has flatly rejected this argument. See State v. Foster, 109
Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the
syllabus. Sentencing courts are “no longer required to make findings or give
their reasons for imposing maximum, consecutive, or more than the
minimum sentences.” Id. “Foster’s result was to sever the portions of the
Lawrence App. No. 09CA33 6
statute that required judicial fact-finding to warrant a sentence beyond the
minimum term * * *.” State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912,
896 N.E.2d 124, at ¶11. Thus, a court need not “provide any reasons in
imposing its sentence.” Id. at ¶12. As the Kalish court explained:
“[W]hen imposing consecutive sentences prior to Foster,
the trial court had to find that the sentence was necessary to
protect the public and was not disproportionate to the
seriousness of the offense and the danger the defendant posed to
the public. R.C. 2929.14(E)(4). After Foster, a trial court can
simply impose consecutive sentences, and no reason need be
stated. Thus, a record after Foster may be silent as to the
judicial findings that appellate courts were originally meant to
review under R.C. 2953.08(G)(2).”
Id.
{¶8} Our independent review of the record reveals no meritorious
issues for appeal.2 Accordingly, we hereby grant counsel’s motion to
withdraw and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
2
We observe at the sentencing hearing the trial court advised appellant that it would entertain a motion for
judicial release after appellant serves four years. However, it does not appear that appellant would be
eligible to file a motion for judicial release until he serves at least five years. The trial court sentenced
appellant to two, three-year prison terms to be served consecutively, for a total of six years. Six years is his
“stated prison term.” See R.C. 2929.01(FF). R.C. 2929.20(C)(3) does not permit an offender with a six-
year stated prison term to file a motion for judicial release until the offender serves at least five years.
Because the trial court’s statement regarding judicial release appears gratuitous and did not induce
appellant to plead guilty (as it occurred during sentencing and after appellant had entered his guilty pleas),
we have determined that the court’s apparent misstatement would not provide a meritorious ground for
appeal.
Lawrence App. No. 09CA33 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
Lawrence App. No. 09CA33 8
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.