State v. Pope , 2019 Ohio 4100 ( 2019 )

[Cite as State v. Pope, 2019-Ohio-4100.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 28142 and 28143
:
v. : Trial Court Case Nos. 2018-CR-313/2
: and 2018-CR-1153
BYRON POPE :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 4th day of October, 2019.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, P.O. Box 24805, Huber Heights,
Ohio 45424
Attorney for Defendant-Appellant
.............
TUCKER, J.
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{¶ 1} In each of two cases, Appellant Byron Pope was convicted pursuant to a plea
agreement of one count of possession of cocaine. He was sentenced to 12 months on
each count, to be served concurrently. Pope appeals. Pope’s appointed 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). The Anders brief states that counsel could find no potentially
meritorious issues for appellate review.1 Following an independent review of the record,
we agree with this assessment. As such, the judgment of the Montgomery County
Common Pleas Court will be affirmed.
Facts and Procedural History
{¶ 2} In Montgomery C.P. No. 2018-CR-313/2, Pope was indicted for trespass in
violation of R.C. 2911.21(A)(2), a fourth degree misdemeanor, and possession of cocaine
in violation of R.C. 2925.11(A), a fifth degree felony. In Montgomery C.P. No. 2018-CR-
1153, Pope was indicted for aggravated possession of drugs and possession of cocaine,
both in violation of R.C. 2925.11(A) and both fifth degree felonies. In each case, Pope
ultimately pleaded guilty to the possession of cocaine count; the other count in each case
was dismissed. Following its receipt of a presentence investigation report (PSI) and after
conducting a sentencing hearing, the trial court sentenced Pope to a 12-month prison
term on each count of possession of cocaine, to be served concurrently. The trial court
ordered that the sentences be served at the Corrections Reception Center, which is an
1
Pope’s first appellate counsel also filed an Anders brief, but, shortly thereafter, he
passed away. We ordered that Anders brief stricken and appointed new counsel. New
counsel filed the Anders brief under review.
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institution operated by the Ohio Department of Rehabilitation and Correction (ODRC).
Pope filed a notice of appeal in each case. We consolidated the appeals and appointed
counsel. As noted, counsel filed an Anders brief. We notified Pope of his right to file a
pro se brief within 60 days of the Anders notice. Pope has not filed a brief.
Anders Standard
{¶ 3} 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 at 744; 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 one about which, “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 brief and appoint new counsel to
represent the defendant.
Anders Analysis
{¶ 4} Consistent with her duties under Anders, counsel has set forth the following
potential assignments of error:
(1) The trial court should have applied House Bill 49 and sentenced [Pope]
to Community Corrections Time.
(2) The trial court erred when it sentenced [Pope] to 12 months.
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{¶ 5} Turning to the first potential assignment of error, House Bill 49, codified at
R.C. 2929.34, requires that when a defendant is sentenced to prison from certain counties
for certain fifth-degree felonies, the prison term will not be served in an institution under
ODRC’s control; instead, the sentence will be served locally, usually in a county jail or
community-based correctional facility. Montgomery County is one of the so-called
“target” counties.
{¶ 6} R.C. 2929.34(B)(3)(d) sets forth certain exceptions to the mandated
imprisonment at a non-ODRC facility. One exception (R.C. 2929.34(B)(3)(d)(ii)) is that
the requirement does not apply to a defendant who has previously been convicted or
pleaded guilty to an offense of violence as defined by R.C. 2901.01. The version of R.C.
2901.01 in effect when Pope entered his plea listed a number of crimes which
automatically qualified as offenses of violence. See R.C. 2901.01(A)(9)(a). R.C.
2911.12(A)(2) (burglary) was a listed offense.2 The PSI reflected that, on two occasions,
Pope had pleaded guilty to burglary in violation of R.C. 2911.12(A)(2). Given this, it
would be wholly frivolous to argue that the trial court erred when it sentenced Pope to an
ODRC-operated institution.
{¶ 7} Turning to the second proposed assignment of error, a trial court has the
authority to impose any authorized sentence, and in doing so, the court is under no
obligation to “articulate its findings or set forth its reasoning for imposing a particular
sentence.” State v. Skapik, 2d Dist. Champaign No. 2017-CA-16, 2018-Ohio-2661, ¶ 8,
citing State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). But the court must
2
R.C. 2901.01(A)(9)(a) was amended effective March 22, 2019. The amendment,
among other changes, eliminated R.C. 2911.12(A)(2) as an offense of violence, but Pope
was sentenced on September 14, 2018, well before this amendment.
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consider the R.C. 2929.11 and R.C. 2929.12 sentencing considerations and factors.
State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.).
{¶ 8} Felony sentences are reviewed under R.C. 2953.08(G)(2). State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1234. Under the statute’s
plain language, an appellate court “may vacate a felony sentence on appeal only if it
determines by clear and convincing evidence that the record does not support the trial
court’s findings under relevant statutes or the sentence is otherwise contrary to law.” Id.
at ¶ 1. This is a very deferential standard because the issue “is not whether the trial
court had clear and convincing evidence to support its findings, but whether [the appellate
court] clearly and convincingly find[s] that the record fails to support the trial court’s
findings.” State v. Cochran, 2d Dist. Clark No. 2016-CA-33, 2017-Ohio-217, ¶ 17.
{¶ 9} Since Pope’s sentences are within the authorized range for a fifth-degree
felony (6-12 months) and the trial court stated its consideration of R.C. 2929.11 and R.C.
2929.12, there is not a potentially meritorious appellate argument that the sentences are
contrary to law. Further, given Pope’s criminal record and that the offenses in this case
were committed while Pope was on post-release control, there is not a potentially
meritorious appellate contention that it could be found by clear and convincing evidence
that the record does not support the imposed sentences.
{¶ 10} In addition to the issues discussed above, and consistent with our duties
under Anders, we have reviewed the entire record. This review included the PSI, the
plea and sentencing transcripts, and the corresponding entries. This review did not
reveal any potentially meritorious appellate issues.
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Conclusion
{¶ 11} Having found no non-frivolous issues for appellate review, counsel is
granted leave to withdraw as counsel, and the judgment of the Montgomery County
Common Pleas Court is affirmed.
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WELBAUM, P.J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Marcy A. Vonderwell
Byron Pope
Hon. Dennis J. Adkins