State v. Evans ( 2012 )

[Cite as State v. Evans, 2012-Ohio-5099.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24928
Plaintiff-Appellee :
: Trial Court Case No. 09-CR-1930
v. :
:
DARRYL A. EVANS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of November, 2012.
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MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MONTE K. SNYDER, Atty. Reg. #0005213, 6501 Germantown Road, Lot 41, Middletown,
Ohio 45042
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Defendant Darryl A. Evans appeals from a judgment of the Montgomery
County Court of Common Pleas, which revoked his community control and sentenced him to
11 months in prison.
{¶ 2} In October 2009, Evans pled guilty to one count of non-support of
dependants, in violation of R.C. 2919.21(B), a fifth degree felony. In exchange for the plea,
the State agreed to dismiss two additional counts of felony non-support of dependants. The
plea agreement provided, however, that Evans could be ordered to pay restitution “for all
arrearage due and owing to ‘C.E.’” The trial court accepted Evans’s plea and sentenced him
to five years of community control, which included the conditions that Evans pay his
court-ordered child support and restitution of $13,229.21. The trial court informed Evans that
he would be subject to 11 months in prison if he violated any of the terms of his community
control. Evans did not appeal his conviction or sentence.
{¶ 3} In July 2011, a Notice of CCS Revocation Hearing and Order was filed,
alleging that Evans had violated conditions of his community control by failing to maintain
verifiable employment, failing to make regular payments toward his court-ordered child
support, and failing to pay court costs and supervision fees. Three months later, an amended
notice was filed, alleging that Evans further violated the conditions of his community control
by submitting a urinalysis sample that tested positive for illegal drugs and by failing to attend
the Goodwill Easter Seals Program during two weeks in September 2011.
{¶ 4} On October 27, 2011, the court held a revocation hearing, during which
Evans’s probation officer and Evans testified. The trial court found that Evans had violated
his community-control sanctions, and it ordered him to serve 11 months in prison and to pay
$12,100.17 in restitution. The court notified Evans that, upon his release, he may be subject
to three years of post-release control. Evans appeals from the revocation of his community
control.
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{¶ 5} Evans’s appellate counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the
record, he found no potentially meritorious issues for appeal. Counsel identified two possible
assignments of error, namely (1) that the trial court abused its discretion when it terminated
Evans’s community control and sentenced him to prison, and (2) that Evans’s trial counsel
rendered ineffective assistance when she failed to present Evans’s testimony through a formal
question-and-answer format.
{¶ 6} By entry, we informed Evans that his appellate attorney had filed an Anders
brief on his behalf and granted him sixty days from that date in order to file a pro se brief. To
date, no pro se brief has been filed. The State also has not provided a substantive response to
counsel’s Anders brief.
{¶ 7} We have conducted our independent review of the record pursuant to Penson
v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). In so doing, it appears that the
issues raised by appellate counsel are moot, because Evans has now completed his 11-month
sentence.
{¶ 8} Evans was taken into custody on October 27, 2011, following the revocation
hearing. His notice of appeal, motion for delayed appeal, praecipe and notice to the court
reporter, motion for transcript, and his motion for appointment of counsel all include a return
address at the Correctional Reception Center in Orient, Ohio. The record also contains
communications from Evans, with a return address at Franklin Medical Center, Zone B, which
is part of the Ohio Department of Rehabilitation and Corrections. Based on our calculations,
Evans completed his sentence in September 2012. The ODRC website, of which we take
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judicial notice, no longer lists Evans as an inmate, and he is not on post-release control.
{¶ 9} The two potential issues raised by appellate counsel challenge the trial court’s
decision to revoke Evans’s community control and to impose a prison term based on alleged
errors by the trial court and alleged ineffective assistance of trial counsel during the revocation
proceeding. The remedy for these errors would be to remand the matter for a new violation
hearing and/or resentencing. See State v. Bell, 2d Dist. Montgomery No. 24665,
2011-Ohio-6799, ¶ 5. However, an appellate court cannot grant relief to an offender who has
served his prison sentence if the underlying conviction is not at issue. E.g., id.; State v.
Kinnison, 2d Dist. Darke No. 2010 CA 1, 2011-Ohio-6324, ¶ 6, citing State v. Johnson, 11th
Dist. Lake No. 2005-L-208, 2007-Ohio-780, ¶ 7; State v. Money, 2d Dist. Clark No. 2009 CA
119, 2010-Ohio-6225, ¶ 25 (taking judicial notice that defendant’s name did not appear on the
ODRC website and dismissing the appeal of her sentence as moot).
{¶ 10} This appeal does not concern Evans’s underlying conviction for non-support
of dependents, Evans has served the prison portion of his sentence, and he is not on
post-release control. Accordingly, Evans has no meaningful remedy for the revocation of his
community control and the imposition of a prison sentence. Because the issues raised by
appellate counsel are undoubtedly moot, they lack arguable merit.
{¶ 11} An argument could be made that the restitution portion of the trial court’s
judgment has continuing effect and is not moot. But, we cannot conceive of an argument about
the restitution, or its amount, that would have arguable merit. Accordingly, based on our
careful independent review of the entire record, we agree with appellate counsel that there are
no non-frivolous issues for review. Counsel’s request to withdraw from further
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representation is granted, and the judgment of the trial court is affirmed.
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FAIN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Monte Snyder
Darryl Evans
Hon. Timothy N. O’Connell