State v. Stotts , 2024 Ohio 747 ( 2024 )

[Cite as State v. Stotts, 2024-Ohio-747.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. CT2023-0039
:
WILLIAM M. STOTTS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2022-0212
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 29, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD L. WELCH CHRIS BRIGDON
MUSKINGUM COUNTY PROSECUTOR 8138 Somerset Road
27 North Fifth St. Thornville, OH 43076
P.O. Box 189
Zanesville, OH 43702
[Cite as State v. Stotts, 2024-Ohio-747.]
Delaney, P.J.
{¶1} Defendant-Appellant William M. Stotts appeals from the May 15, 2023
Sentencing Judgment Entry issued by the Muskingum County Court of Common Pleas
pursuant to our remand in State v. Stotts, 5th Dist. Muskingum No. CT2022-0064, 2023-
Ohio-1411. Plaintiff-Appellee is the State of Ohio and did not appear in the instant appeal.
{¶2} Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), asserting he found no potential assignments
of error having arguable merit. We have performed our duty under Anders to review the
record independently, and we also find no potential assignments of error having arguable
merit. See, State v. Adair, 5th Dist. Muskingum No. CT2022-0016, 2023-Ohio-1191, ¶ 20.
FACTS AND PROCEDURAL HISTORY
{¶3} The facts and procedural history come in part from our previous decision in
State v. Stotts, 5th Dist. Muskingum No. CT2022-0064, 2023-Ohio-1411 (“Stotts I”).
{¶4} Stotts was released from prison on post release control on December 24,
2021. On April 30, 2022, at approximately 3:00 a.m., Stotts was stopped by the
Muskingum County Sheriff's office for a traffic violation. The officer noticed that Stotts was
wearing a handgun holster and asked whether he had a firearm in the vehicle. Stotts
admitted that he had a loaded gun, and when asked if there was anything illegal in the
vehicle, he admitted possessing methamphetamine. After searching the vehicle, the
deputy found a nine-millimeter handgun in a plastic bag with a substance that was later
determined to be methamphetamine. Stotts also had $564.00 on his person. He admitted
possession of the methamphetamine and the handgun and confessed that he sold drugs
to his friends and that he used methamphetamine daily.
[Cite as State v. Stotts, 2024-Ohio-747.]
{¶5} Stotts was charged with seven offenses arising from his arrest. After plea
negotiations, the State agreed to dismiss four of the counts in exchange for a plea of
guilty to (1) Trafficking in Drugs, a third-degree felony in violation of R.C. 2925.03(A)(2);
(2) Improper Handling of a Firearm in a Motor Vehicle, in fourth-degree felony in violation
of R.C. 2923.16(B); and (3) Having a Weapon under a Disability, a third-degree felony in
violation of R.C. 2923.13(A)(3). The State and Stotts also agreed to a joint
recommendation of 36 months in prison.
{¶6} Stotts appeared before the court on August 22, 2022 for sentencing. After
reviewing the facts, the trial court rejected the joint recommendation and imposed an
aggregate sentence of 72 months, a fine of $5000, and ordered forfeiture of the firearm
and the vehicle that Stotts was driving at the time of the offense. The sentencing entry
was filed on August 24, 2022.
{¶7} Stotts appealed the trial court’s imposition of sentence to this Court in Stotts
I. He raised two Assignments of Error:
I. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT
WITH THE PRINCIPLES SET FORTH O.R.C. § 2929.11 AND FACTORS
TO BE CONSIDRED(sic) IN O.R.C. § 2929.12.”
II. SHOULD THIS HONORABLE COURT SHOULD (sic) VACATE THE
TRIAL COURT'S DECISION TO IMPOSE CONSECUTIVE SENTENCES
ON COUNTS 2-3 AND 5 BECAUSE THE CONSECUTIVE SENTENCES
ARE IN CONTRAVENTION OF THE SENTENCING STATUTES.
Id. at ¶ 6-7.
[Cite as State v. Stotts, 2024-Ohio-747.]
{¶8} We denied Stotts’ first Assignment of Error. In his second Assignment of
Error, however, we agreed with Stotts that the trial court improperly imposed consecutive
sentences pursuant to R.C. 2929.14(C)(4). Our review of the sentencing transcript and
the sentencing entry showed that neither contained language that could be reasonably
be interpreted as language that would satisfy the requirements of R.C. 2929.14(C)(4).
Stotts I, at ¶ 24.
{¶9} Because trial court did not make the necessary findings during the
sentencing hearing and incorporate them into its sentencing entry, we found the
imposition of consecutive sentences was in error. The trial court's sentencing order as to
consecutive sentences was reversed, and the matter remanded for resentencing. Id. at ¶
25-27.
{¶10} The matter came on for resentencing pursuant to remand on May 15, 2023.
The trial court stated at the sentencing hearing:
The Court finds consecutive sentences are necessary to protect the public
and punish this offender and consecutive sentences are not
disproportionate to the seriousness of the conduct and the danger posed to
the public. Additionally, your history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crimes.
(T. 11). The trial court imposed the same sentence as it did on August 24, 2022. On Count
2, Trafficking in Drugs, Stotts was ordered to serve a 36-month prison term to be served
concurrently with a 12-month prison term on Count 3, Improper Handling of a Firearm in
a Motor Vehicle. On Count 5, Having a Weapon While Under Disability, the trial court
[Cite as State v. Stotts, 2024-Ohio-747.]
imposed a 36-month prison term to be served consecutively with Counts 2 and 3, for an
aggregate prison term of 72 months. The sentencing entry filed on May 15, 2023 included
language pertaining to R.C. 2919.14(C)(4) and the imposition of consecutive sentences.
{¶11} It is from this May 15, 2023 sentencing entry that Stotts files his Anders
appeal.
ASSIGNMENTS OF ERROR
{¶12} In his Anders brief, Stotts’ appellate counsel argues only one potential
Assignment of Error may exist. He contends that because the trial court originally imposed
consecutive sentences but failed to state the requisite R.C. 2929.14(C) findings, imposing
consecutive sentences at resentencing could be construed as a harsher sentence.
ANALYSIS
Consecutive Sentences
{¶13} In Stotts I, this Court found that the trial court did not comply with R.C.
2929.14(C)(4) where in order to impose a consecutive sentence, the trial court is required
to make findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into the sentencing entry. Stotts I, ¶ 23 citing State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The matter was remanded to
the trial court for resentencing. The trial court conducted the resentencing hearing and
imposed consecutive sentences.
{¶14} Before a trial court imposes consecutive sentences, it must make specific
findings which are delineated in R.C. 2929.14(C)(4). Specifically, the trial court must find
that “the consecutive service is necessary to protect the public from future crime or to
punish the offender.” Id. It must also find that “consecutive sentences are not
[Cite as State v. Stotts, 2024-Ohio-747.]
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public.” Id. Finally, the court must find at least one of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶15} R.C. 2953.08(G)(2) does not allow an appellate court to reverse or modify
a defendant's consecutive sentences using the principles and purposes of felony
sentencing as set forth in R.C. 2929.11(A) and (B) and the seriousness and recidivism
factors in R.C. 2929.12. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141
N.E.3d 169, ¶13-18. (“Gwynne II”); State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,
169 N.E.3d 649, ¶39; State v. Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d
784, ¶10.
{¶16} An appellate court can reverse or modify the trial court's order of
consecutive sentences if it clearly and convincingly finds that the record does not support
[Cite as State v. Stotts, 2024-Ohio-747.]
the findings. The Ohio Supreme Court has recently spoken on the standard by which an
appellate court should review a trial court's consecutive sentences findings. State v.
Grant, 5th Dist. Muskingum No. CT2023-0023, 2023-Ohio-4614, 2023 WL 8716601, ¶
23. In State v. Gwynne, 2023-Ohio-3851, -- N.E.3d --, ¶ 5, the Ohio Supreme Court
reconsidered its prior decision in State v. Gwynne, 2022-Ohio-4607, -- N.E.3d --, and held
that “[t]he plain language of R.C. 2953.08(G)(2) requires an appellate court to defer to a
trial court's consecutive-sentence findings, and the trial court's findings must be upheld
unless those findings are clearly and convincingly not supported by the record.” Grant at
¶ 23.
{¶17} The trial court made the requisite R.C. 2929.14(C)(4) findings on the record
and incorporated that language in its May 15, 2023 resentencing entry. At the
resentencing hearing, the trial court also noted that Stotts had been out of prison for four
months prior to his arrest and conviction. (T. 7, 9-11). Within four months of his release
from prison, Stotts was using and selling methamphetamine. (T. 8, 5-9). Stotts admitted
that he knew he was not allowed to possess a handgun but possessed a handgun
because he was selling drugs. (T. 8-9, 11-19). The trial court reviewed Stotts’ prior
criminal history, which included theft in 2009, drug abuse in 2001, failure to license a dog
at large, passing bad checks in 1999 and 1998, underage consumption in 1997, and
juvenile burglary and theft charges. (T. 10, 3-15).
{¶18} Upon review, we find that the trial court's sentencing on the charges
complies with applicable rules and sentencing statutes. The sentence was within the
statutory sentencing range. We also find that the record in the case at bar supports the
trial court's findings under R.C. 2929.14(C)(4).
[Cite as State v. Stotts, 2024-Ohio-747.]
No arguably meritorious claims for appeal
{¶19} In Anders, the United States Supreme Court held that if, after a
conscientious examination of the record, a defendant's counsel concludes the case is
wholly frivolous, then he should so advise the court and request permission to withdraw.
Id. at 744. Counsel must accompany his request with a brief identifying anything in the
record that could arguably support his client's appeal. Id. Counsel also must: (1) furnish
his client with a copy of the brief and request to withdraw and (2) allow his client sufficient
time to raise any matters that the client chooses. Id. Once the defendant's counsel
satisfies these requirements, the appellate court must fully examine the proceedings
below to determine if any arguably meritorious issues exist. If the appellate court also
determines that the appeal is wholly frivolous, it may grant counsel's request to withdraw
and dismiss the appeal without violating constitutional requirements or may proceed to a
decision on the merits if state law so requires. Id.
{¶20} Counsel in this matter followed the procedure in Anders and we reviewed
the merits of Stotts’ potential Assignment of Error. Upon our review of the record, we
found no error which would warrant a reversal of Stotts’ convictions or sentence. See,
State v. Mamone, 5th Dist. Delaware No. 22 CAC 06 0042, 2023-Ohio-1167, ¶ 37; State
v. Emery, 5th Dist. Ashland No. 22-COA-026, 2023-Ohio-709, ¶ 21.
{¶21} The record discloses no errors prejudicial to Stotts’ rights in the proceedings
in the trial court. We therefore concur with appellate counsel that appellant's appeal is
without merit and wholly frivolous. An appeal is wholly frivolous if the record is devoid of
any legal points arguable on the merits. State v. Middaugh, 5th Dist. Coshocton No. 02
CA 17, 2003-Ohio-91, ¶ 13.
[Cite as State v. Stotts, 2024-Ohio-747.]
{¶22} In this case, the requirements in Anders have been satisfied. Upon our
independent review of the record, we agree with counsel's conclusion that no arguably
meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be
wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the
judgment of the Muskingum County Court of Common Pleas. See, State v. Hill, 5th Dist.
Licking No. 15-CA-13, 2016-Ohio-1214, ¶ 20, appeal not allowed, 147 Ohio St.3d 1412,
2016-Ohio-7455, 62 N.E.3d 185.
CONCLUSION
{¶23} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, P.J.,
Gwin, J. and
Hoffman, J., concur.