State v. Adams ( 2011 )

[Cite as State v. Adams, 2011-Ohio-2562.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
: Appellate Case No. 09-CA-37
Plaintiff-Appellee :
: Trial Court Case No. 2007-CR-197
v. :
:
ROGER AARON ADAMS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of May, 2011.
...........
NICK A. SELVAGGIO, by SCOTT SCHOCKLING, Atty. Reg. #0062949, 200 North Main
Street, Courthouse, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
P.J. CONBOY II, Atty. Reg. #0070073, Staton, Fisher & Conboy LLP, 5613 Brandt Pike,
Huber Heights, Ohio 45424
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} This matter comes before the court upon Roger Adams’ appeal of the revocation
of his community control sanctions and sentence for violations of his community control
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sanctions.
{¶ 2} On March 14, 2008, Adams pled no contest to corruption of another with drugs
and tampering with evidence, both third-degree felonies. Consequently, Adams was placed
on community control sanctions for three years, and sentenced to three years of incarceration
for each count, as well as a maximum of three years of discretionary post release control, if the
community control sanctions were violated.
{¶ 3} On June 22, 2009, Adams violated his community control sanctions through
engaging in drug use and threatening another with physical harm. At the August 6, 2009
hearing for violating his community control sanctions, Adams admitted he violated the terms
of his supervision. Subsequently, the trial court imposed the original March 14, 2008
sentence of three years of incarceration for each count, both sentences having been ordered to
be served concurrently. Additionally, the trial court imposed a maximum of three years of post
release control, if the Adult Parole Authority deems post release control proper. Adams
appealed.
{¶ 4} On March 16, 2010, Adams’ appellate counsel filed the brief of appellant
without any assignments of error pursuant to Anders v. California (1967), 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493, asserting the absence of any potentially meritorious issues for our
review. In the Anders filing, however, appellate counsel did identify what he characterized as
“a potential issue relating to the length of the sentence.”
{¶ 5} We notified appellant that his counsel had filed an Anders brief and offered
appellant ample time to file a pro se brief. None has been received.
{¶ 6} Pursuant to Anders, we are required to conduct a full examination of all
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proceedings and to appoint new counsel to assist Adams if we find any non-frivolous issues
for review. Anders, 386 U.S. at 744; see also Penson v. Ohio (1988), 488 U.S. 75, 76, 109
S.Ct. 346, 102 L.Ed.2d 300. Having thoroughly reviewed the record in this case, we do not
find any non-frivolous issues.
{¶ 7} In his Anders brief, appellate counsel recognized a potential issue regarding
Adams’ sentencing. Appellate review of felony sentencing requires the appellate court to do
two things: (1) review the sentence imposed and the trial court’s compliance with the rules
and statutes for sentencing to determine whether the sentence being reviewed is clearly and
convincingly contrary to the law; and if not, (2) review the trial court’s decision for an abuse
of discretion. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. An abuse of discretion
means the trial court’s decision was unreasonable, arbitrary or unconscionable. State v.
Hancock, 108 Ohio St.3d 57, 2006-Ohio-160. Under Ohio sentencing law, the severity of a
sentence imposed is in the sole discretion of the trial court and will not be set aside on appeal
unless it is demonstrated from the record that the trial court unreasonably ignored the
applicable sentencing statutes. State v. Williams (1982), 7 Ohio App.3d 160; State v. Steffen
(1987), 31 Ohio St.3d 111.
{¶ 8} Pursuant to R.C. 2929.14(A), a felony of the third degree warrants a definite
prison term of one to five years. In addition, pursuant to R.C. 2929.15(B), if the defendant
was placed on community control, and a violation of community control sanctions is found,
the trial court can impose stricter sanctions or impose other sanctions, including, but not
limited to, the underlying prison sentence. In the present case, we find Adams’ three-year
concurrent prison sentence, accompanied by a maximum of three years of discretionary post
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release control to be reasonable. The sentence was within the statutory range of penalties for
the offenses and consistent with the original sentence imposed. Therefore, we find that there
was no abuse of discretion here and an assignment of error about the sentencing issue would
be unsuccessful.
{¶ 9} The transcript of the community control violation hearing indicates the trial
court “considered the purposes and principles of sentencing, as well as Adams’ criminal
history, previous supervision failure and his difficulties on supervision” in imposing its
sentence. The record indicates that Adams violated his community control sanctions in many
ways prior to this hearing, such as failing to tell his correctional officer of his current location,
having contact with minor children, not attending counseling, as well as failing to complete a
rehabilitation program. Adams, himself, admitted he had a drug problem and had relapsed.
Although Adams’ counsel urged the court to place Adams in another rehabilitation program,
instead of incarceration, the court declined to do so since it previously granted this request and
Adams was unsuccessful in completing the program and continued to violate his community
control sanctions.
{¶ 10} R.C. 2929.14(A) prescribes imprisonment of one to five years for a
third-degree felony. Adams committed two third-degree felonies, and thus, if sentenced
consecutively, could have received up to ten years in prison. However, as Adams’ appellate
counsel accurately asserts, the trial court gave Adams a “mid-range sentence for both counts
and also permitted the sentences to be served concurrently.” We would find no abuse of
discretion in light of the circumstances.
{¶ 11} The record fails to portray any non-frivolous issues as to whether Adams’
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conviction and sentence were proper. As a result, the trial court’s judgment is affirmed.
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FAIN and FROELICH, JJ., concur.
Copies mailed to:
Nick A. Selvaggio
Scott Schockling
Patrick Conboy II
Roger Aaron Adams
Hon. Roger B. Wilson