State v. Mack ( 2014 )

[Cite as State v. Mack, 2014-Ohio-4072.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140054
TRIAL NO. B-1305133
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JORMELL MACK, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment of Court: Motion to Withdraw As Counsel for Appellant is Granted, New
Counsel for Appellant is Appointed, Further Briefing is
Ordered, and Appeal is Ordered to be Resubmitted
Date of Judgment Entry on Appeal: September 19, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Thomas Hodges, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
D INKELACKER , Presiding Judge.
{¶1} Defendant-appellant Jormell Mack was charged with trafficking in
and possession of cocaine, felonies of the second degree. At the time he was indicted,
Mack had been serving a community-control sentence for failure to comply with an
order or signal of a police officer, a felony of the third degree. Mack admitted that
the new offenses constituted a violation of the terms of his community control.
{¶2} At a subsequent hearing, Mack entered a plea of guilty to the cocaine-
trafficking charge. The plea form was titled “plea of guilty to an agreed sentence,”
and noted that the parties had agreed to a two-year prison term. In exchange for his
guilty plea, the cocaine-possession charge was dismissed by the state. After his guilty
plea was accepted, the trial court proceeded to sentence Mack on both the drug-
trafficking charge and the community-control violation. The trial court said that it
was “going to terminate probation on the old charge. But you get a penalty for that.
I will give you two years on the new charge, but you’re getting two more years on the
probation violation. So on case B-1305133, it will be four years Ohio Department of
Corrections.”
{¶3} In the judgment entry, the trial court sentenced Mack to four years in
prison for trafficking in cocaine. The entry did not mention the community-control
violation.
{¶4} Appointed appellate counsel for Mack has advised this court that,
after a conscientious examination of the record, he can find no meritorious
assignments of error to raise and has concluded that this appeal is frivolous. See
State v. Gilbert, 1st Dist. Hamilton No. C-110382, 2012-Ohio-1366, ¶ 5, citing Freels
v. Hills, 843 F.2d 958, 960 (6th Cir.1988); see also Anders v. California, 386 U.S.
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738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel has communicated his
conclusion to Mack and has offered him an opportunity to respond and to raise any
issues. Mack has not done so. Counsel has, therefore, moved this court for
permission to withdraw as counsel for Mack. See Anders at 744.
{¶5} In response, the state asserts that the trial court imposed a two-year
prison term for the trafficking charge consecutive to a two-year prison term for the
community-control violation. If that is the case, the judgment entry is incorrect, and
the trial court failed to make the proper findings to support the imposition of
consecutive sentences. See State v. Jones, 1st Dist. Hamilton No. C-130625, 2014-
Ohio-3345, ¶ 14-16.
{¶6} At counsel’s urging, we now assume our “sole obligation of
conducting ‘a full examination of all the proceedings * * * to decide whether the case
is wholly frivolous.’ ” See State v. Williams, 183 Ohio App.3d 757, 2009-Ohio-4389,
918 N.E.2d 1043, ¶ 11 (1st Dist.), quoting Anders at 744. If we determine that the
appeal is wholly frivolous, we may then proceed to a decision on the merits. See In re
Booker, 133 Ohio App.3d 387, 390, 728 N.E.2d 405 (1st Dist.1999), citing Anders at
744. If, however, we conclude that “any legal points arguable on their merits and
prejudicial to the defendant exist, we must ensure, prior to decision, that the
indigent defendant receives the assistance of counsel to argue the appeal.” Gilbert at
¶ 6, citing Booker at 390-391.
{¶7} If, as the state suggests, the four-year sentence was the result of the
trial court sentencing Mack to two years in prison for drug trafficking and two years
in prison for the community-control violation, the trial court may have erred in the
manner in which it executed the entry and may not have properly supported its
imposition of consecutive sentences with appropriate findings. Alternatively, if Mack
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O HIO F IRST D ISTRICT C OURT OF A PPEALS
was sentenced to four years in prison for trafficking in cocaine, as the judgment entry
states, the sentence imposed was twice what he had agreed to as part of his plea
agreement.
{¶8} Based on our review of the record and the applicable law, we cannot
say that this appeal is wholly frivolous. Because legal points arguable on their merits
remain to be resolved, we cannot now reach a decision on the merits of the appeal.
Gilbert at ¶ 9, citing Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Without
the assistance of counsel to argue these matters for Mack, and without the state’s
response, we are ill-equipped to determine whether Mack was properly sentenced in
this case. See id.{¶9} We, therefore, grant counsel’s motion to withdraw. We appoint
attorney Jon R. Sinclair, Attorney Registration Number 0066136, to serve as counsel
for Mack. We order new counsel to present, in accordance with App.R. 12 and 16(A),
an assignment of error on the issue of whether Mack was properly sentenced in this
case, and on any other matter that new counsel may discover in a diligent review of
the record.
{¶10} We further order new counsel to file a brief on or before November
19, 2014, and counsel for the state to file a responsive brief on or before December
19, 2014.
Judgment accordingly.
FISCHER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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