State v. Marcum ( 2013 )


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  • [Cite as State v. Marcum, 
    2013-Ohio-2447
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    HOCKING COUNTY
    STATE OF OHIO,                 :
    : Case Nos. 12CA20
    Plaintiff-Appellee,       :           12CA24
    :           12CA25
    vs.                       :
    : DECISION AND JUDGMENT
    JAMES MARCUM                   : ENTRY
    :
    Defendant-Appellant.       : Released: 06/04/13
    _____________________________________________________________
    APPEARANCES:
    Timothy P. Gleeson, Logan, Ohio, for Appellant.
    Laina Fetherolf, Hocking County Prosecuting Attorney, and Jonah M.
    Saving, Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for
    Appellee.
    _____________________________________________________________
    McFarland, P.J.
    {¶1} In this consolidated appeal, James Marcum, (hereinafter
    “Appellant”), appeals his convictions for two charges of domestic violence,
    two charges of violating protection orders, one charge of criminal damaging,
    and one charge of obstructing official business in the Hocking County
    Municipal Court after he pled guilty to the above charges pursuant to a plea
    arrangement with the State of Ohio. Appellant’s counsel has advised this
    Court that, after reviewing the record, he cannot find a meritorious claim for
    appeal. As a result, Appellant’s counsel has moved to withdraw under
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                    2
    Anders v. California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
     (1967). We find no merit
    to Appellant’s three assignments of error and, after independently reviewing
    the record, find no additional error prejudicial to the Appellant’s rights in the
    trial court proceedings. The motion of counsel for Appellant requesting to
    withdraw as counsel is granted, and this consolidated appeal is dismissed for
    the reason that it is wholly frivolous.
    FACTS
    {¶2} On December 21, 2011, Appellant’s wife, Patricia Marcum,
    (hereinafter “Patricia”) placed a call to the Hocking County Sheriff’s Office
    reporting a domestic dispute. When officers arrived at the scene, Appellant
    was gone. Patricia advised officers Appellant had been drinking and they
    argued. She further advised Appellant had punched her head and threatened
    to kill her. Appellant was subsequently charged with domestic violence,
    R.C. 2919.29(A) and assault, R.C. 2903.13(A), both misdemeanors of the
    first degree.
    {¶3} The cases were filed as Hocking Municipal Court case number
    CRB 1101101(A) and (B). A domestic violence criminal temporary
    protection order (DVTPO) was served on Appellant on December 30, 2011.
    Patricia was named as the protected person. The order advised Appellant
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                   3
    was not to be present within 500 feet of Patricia, even with her permission.
    Appellant was appointed counsel and the trial court proceedings ensued.
    {¶4} On March 4, 2012, Appellant allegedly punched Aidan Newton,
    Patricia’s son (and Appellant’s step-son), and threw a brick through
    Patricia’s window. He also allegedly threatened to kill Patricia. As a result,
    Appellant was again charged with domestic violence and assault. In
    addition, he was charged with violation of a temporary protection order, a
    violation of R.C. 2919.27 and a misdemeanor of the first degree; criminal
    damaging, R.C. 2909.06 and a misdemeanor of the second degree; and
    menacing, R.C. 2903.22 and a misdemeanor of the fourth degree. These
    cases were filed together as Hocking County Municipal Court numbers CRB
    1200157 (A) through (E).
    {¶5} On May 8, 2012, Appellant was again charged with violation of
    a temporary protection order after having been seen at Patricia’s residence.
    He was also charged with obstruction of justice, R.C. 2921.31(A), a
    misdemeanor of the second degree, after he fled from police. These cases
    were grouped as Hocking County Municipal Court numbers
    CRB1200393(A) and (B).
    {¶6} On June 4, 2012, Appellant’s counsel moved for a psychiatric
    evaluation of Appellant. The trial court granted the motion. On July 9,
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                 4
    2012, based on the forensic examiner’s report, the trial court found by a
    preponderance of the evidence that [Appellant’s] mental condition rendered
    him unable to understand the nature of the proceeding and assist in his
    defense. Appellant was committed to the Ohio Department of Mental
    Health for 60 days. On August 13, 2012, another mental health evaluation
    indicated Appellant was restored to competency. Appellant was then
    scheduled for a hearing on August 17, 2012 to determine whether his
    competency had indeed been restored.
    {¶7} At the August 17th hearing, the parties entered into plea
    negotiations. Appellant entered guilty pleas to the following six charges:
    1) Domestic violence, CRB 11011101(A)- appellate case number
    12CA20;
    2) Domestic violence, CRB 1200157 (A)- appellate case number
    12CA24;
    3) Violating protection order, CRB1200157(B)- appellate case
    number 12CA24;
    4) Criminal damaging, CRB1200157, appellate case number
    12CA24;
    5) Violating protection order,CRB1200393(A)- appellate case number
    12CA25; and,
    6) Obstructing official business, CRB 1200393(B)- appellate case
    number 12CA25.
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                                                 5
    {¶8} The State dismissed all five remaining charges. Prior to
    accepting Appellant’s guilty pleas, the trial court reviewed the charges and
    notified Appellant of the maximum jail terms and maximum fines. The trial
    court also reviewed Appellant’s constitutional rights to trial, trial by jury,
    confrontation of witnesses, and subpoena power.
    {¶9} Appellant was sentenced the same day. The trial court heard
    recommendations from the State regarding the jail sentence to be served and
    conditions of probation. Patricia and Appellant were given opportunities to
    address the court. Both verbalized their opposition to the temporary
    protection orders.1 The trial court ultimately imposed a 180-day jail
    sentence with credit for time served, various fines and costs, and a
    community control sanction of two years. The trial court also ordered “no
    contact” between Appellant and Patricia during the period of community
    control.
    {¶10} Appellant now appeals the convictions and sentencing order.
    This appeal is timely filed. We have allowed Appellant sufficient time to
    respond to counsel’s brief. To date, no response has been received.
    1
    The record contains, during the course of the proceedings, several written requests made by Patricia
    Marcum and directed to the trial court, that the charges be dismissed and the protection orders be lifted.
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                      6
    ANDERS BRIEF
    {¶11} Under Anders v. California, 
    386 U.S. 738
    , 
    87 S.Ct. 1396
    (1967), counsel may ask permission to withdraw from a case when counsel
    has conscientiously examined the record, can discern no meritorious claims
    for appeal, and has determined the case to be wholly frivolous. 
    Id. at 744
    ;
    State v. Adkins, 4th Dist. No. 03CA27, 
    2004-Ohio-3627
    , ¶8. Counsel’s
    request to withdraw must be accompanied with a brief identifying anything
    in the record that could arguably support the client’s appeal. Anders at 744;
    Adkins at ¶8. Further, counsel must provide the defendant with a copy of the
    brief and allow sufficient time for the defendant to raise any other issues, if
    the defendant chooses to. 
    Id.
    {¶12} Once counsel has satisfied these requirements, the appellate
    court must conduct a full examination of the trial court proceedings to
    determine if meritorious issues exist. If the appellate court determines that
    the appeal is frivolous, it may grant counsel’s request to withdraw and
    address the merits of the case without affording the appellant the assistance
    of counsel. 
    Id.
     If, however, the court finds the existence of meritorious
    issues, it must afford the appellant assistance of counsel before deciding the
    merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,
    
    2007-Ohio-2743
    , ¶7.
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                     7
    {¶13} In the current action, Appellant’s counsel advises that the
    appeal is wholly frivolous and has asked permission to withdraw. Pursuant
    to Anders, counsel has filed a brief raising three potential assignments of
    error for this Court’s review.
    POTENTIAL ASSIGNMENT OF ERROR ONE
    I.    THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT-
    APPELLANT’S GUILTY PLEAS WERE ENTERED
    KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY.
    STANDARD OF REVIEW
    {¶14} In deciding whether to accept a guilty plea, the trial court must
    determine whether the plea was made knowingly, intelligently, and
    voluntarily. State v. McDaniel, 4th Dist. No. 09CA677, 2010 Ohio-5215, ¶
    8. “‘In considering whether a guilty plea was entered knowingly,
    intelligently and voluntarily, an appellate court examines the totality of the
    circumstances through a de novo review of the record to ensure that the trial
    court complied with constitutional and procedural safeguards.’” (Emphasis
    sic.) 
    Id.,
     quoting State v. Eckler, 4th Dist. No. 09CA878, 
    2009-Ohio-7064
    , ¶
    48. See, also, State v. Barner, 4th Dist. No. 10CA9, 2012-Ohio- 4584.
    {¶15} “Before accepting a guilty plea, the trial court should engage in
    dialogue with the defendant as described in Crim.R.11(C).” McDaniel at ¶
    8, citing State v. Morrison, 4th Dist. No. 07CA854, 
    2008-Ohio-4913
    , ¶ 9.
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                    8
    The trial court must also inform the defendant hat he or she is waiving the
    privilege against self-incrimination, the right to a jury trial, the right to
    confront accusers, and the right to compulsory process. State v. Jordan, 4th
    Dist. No. 00CA16, 
    2001-Ohio-2608
    , 
    2001 WL 1346129
    , citing Boykin v.
    Alabama, 
    395 U.S. 238
    , 
    89 S. Ct. 1709
     (1969); State v. Ballard, 
    66 Ohio St. 2d 473
    , 
    423 N.E.2d 115
     (1981). Because these are constitutional rights, the
    record must affirmatively demonstrate that the waiver was both intelligent
    and voluntary. Boykin, 
    supra.
     An appellant who challenges his plea on the
    basis that it was not knowingly and voluntarily made must show a
    prejudicial effect. State v. Nero, 
    56 Ohio St. 3d 106
    , 
    564 N.E.2d 474
     (1990),
    citing State v. Stewart, 
    51 Ohio St. 2d 86
    , 94, 
    364 N.E.2d 1163
     (1977);
    Crim.R. 52(A). The test is whether the plea would have otherwise been
    made. Stewart, supra at 3.
    LEGAL ANALYSIS
    {¶16} In Appellant’s first assignment of error, he contends the trial
    court erred in finding his guilty pleas were entered knowingly, voluntarily,
    and intelligently. However, the record shows prior to accepting Appellant’s
    pleas, the trial court reviewed the charges and notified Appellant of the
    maximum jail sentences and the maximum fines. Appellant verbalized
    understanding of these possible sentences and fines. The trial court also
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                      9
    engaged in brief dialogue with Appellant concerning his right to trial.
    Appellant also verbalized his understanding of this right. The trial court
    then asked Appellant if he had reviewed the documents associated with each
    case with his attorney. Appellant responded in the affirmative. The court
    then inquired:
    “And do you understand that by signing these documents you are
    giving up that right to have a trial and all rights associated with going
    to trial?”
    Appellant again responded affirmatively. The trial court further
    inquired:
    “You understand that you are giving up your right to call witnesses to
    testify on your behalf and to confront any witness called to testify
    against you by the state?”
    Appellant again responded affirmatively. The trial court again
    inquired as to whether Appellant fully understood his legal rights. Appellant
    again answered “Yes.”
    {¶17} Although the trial court did not verbally advise Appellant of his
    privilege against compulsory self-incrimination, the record contains
    Appellant’s signed waiver of all constitutional rights attendant to trial.
    Appellant stated on the record he understood the penalties and charges. At
    no time did Appellant indicate he did not understand the charges, the
    penalties, or his constitutional rights.
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                                                   10
    {¶18} Further, this was a plea arrangement. Appellant pled to six
    charges and in return, five charges were dismissed. He signed a written plea
    agreement and a waiver of rights form. The plea agreement set forth the
    terms of the plea arrangement and listed the sanctions. The no-contact order
    was included on the written plea arrangement. Appellant was well-aware of
    the terms of the plea arrangement. Further, Appellant’s actions in being
    charged multiple times with domestic violence and violation of protection
    orders after the first domestic incident in March 2011 demonstrate he
    blatantly ignored court orders and conditions of bond.2 Nevertheless, five
    charges were dismissed. Appellant received substantial benefit from his
    bargain.
    {¶19} Finally, Appellant makes no showing of prejudice or that he
    would not have accepted the plea. Again, the no-contact order was specified
    on the written plea agreement which Appellant reviewed with counsel and
    signed. There is nothing in the record to suggest Appellant’s plea was not
    knowing, voluntary, and intelligent, under the totality of the circumstances.
    We find the trial court did not err or abuse its discretion in accepting
    Appellant’s guilty pleas. As such, the first potential assignment of error is
    2
    Appellee’s brief references the fact that for several weeks prior to May 8, 2012 (the day Appellant’s
    actions gave rise to the third set of charges being filed), Appellant was subject to a statewide warrant for
    leaving the Salvation Army in Columbus, Ohio after having his bond, relevant to the pending domestic
    charges, modified to attend a program at the Salvation Army.
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                  11
    overruled.
    POTENTIAL ASSIGNMENT OF ERROR TWO
    II.   TRIAL COUNSEL FOR DEFENDANT-APPELLANT PROVIDED
    INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE
    FORCED DEFENDANT-APPELLANT INTO ENTERING THE
    GUILTY PLEAS.
    STANDARD OF REVIEW
    {¶20} Criminal defendants have the right to effective assistance of
    counsel. State v. Adkins, 
    161 Ohio App. 3d 114
    , 
    2005-Ohio-2577
    , 
    829 N.E.2d 729
     (4th Dist.); McMann v. Richardson, 
    397 U.S. 759
    , 770, 
    90 S.Ct. 1441
     (1970); State v. Lytle, 4th Dist. No. 96CA182, 
    1997 WL 118069
     (Mar.
    10, 1997); State v. Doles, 4th Dist. No 1660, 
    1991 WL 179582
     (Sept. 18,
    1991). “In Ohio, a properly licensed attorney is presumed competent and
    the appellant bears the burden to establish counsel’s ineffectiveness.” State
    v. Knowlton, 
    971 N.E.2d 395
    , 
    2012-Ohio-2350
    , (4th Dist.) ¶ 35. To obtain
    reversal of a conviction on grounds of ineffective assistance of counsel, a
    defendant must show that (1) his counsel’s performance was deficient and
    (2) the deficient performance prejudiced the defense so as to deprive him of
    a fair trial. See Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
     (1984); see, also, State v. Issa, 
    93 Ohio St. 3d 49
    , 67, 
    752 N.E.2d 904
    (2001); State v. Goff, 
    82 Ohio St. 3d 123
    , 
    694 N.E.2d 916
     (1998). We note
    that both prongs of the Strickland test need not be analyzed if the claim can
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                   12
    be resolved under only one. See State v. Madrigal, 
    87 Ohio St. 3d 378
    , 389,
    
    2000-Ohio-448
    , 
    721 N.E.2d 52
    . If a claim may be resolved on grounds of
    lack of prejudice, that course should be followed. See State v. Loza, 
    71 Ohio St. 3d 61
    , 
    641 N.E.2d 1082
     (1994).
    LEGAL ANALYSIS
    {¶21} In his second assignment of error, Appellant contends his
    attorney rendered ineffective assistance of counsel by “forcing” Appellant
    into entering the guilty pleas. He supports this contention by referencing
    only the fact that trial counsel requested a recess. There is no evidence in
    the record to suggest the recess was used by counsel to coerce Appellant into
    entering the guilty pleas. Appellant made no complaint or objection about
    his attorney after court resumed following the recess. Appellant’s argument
    is based on private communication between Appellant and his attorney, i.e.,
    depending on alleged evidence outside of the record. The proper vehicle for
    Appellant to raise this argument is in a petition for post-conviction relief
    under R.C. 2953.21. See State v. Ables, 4th Dist. No. 11CA22, 2012-Ohio-
    3377, ¶ 12; State v. Whitaker, 4th Dist. No. CA3349, 
    2011-Ohio-6923
    , ¶ 11,
    citing State v. Cooperrider, 
    4 Ohio St. 3d 226
    , 228, 
    448 N.E.2d 452
    (1983)(per curiam). Accordingly, this issue is not properly before us on
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                  13
    appeal. We therefore reject and overrule this second potential assignment of
    error.
    POTENTIAL ASSIGMENT OF ERROR THREE
    III.     THE TRIAL COURT ERRED BY IMPOSING A NO-CONTACT
    ORDER PROHIBITING DEFENDANT-APPELLANT FROM
    HAVING CONTACT WITH HIS WIFE AS A COMMUNITY
    CONTROL SANCTION.
    STANDARD OF REVIEW
    {¶22} We review a misdemeanor sentence for an abuse of discretion.
    State v. Knowlton, 
    971 N.E.2d 395
    , 
    2012-Ohio-2350
    , (4th Dist.) ¶ 28; R.C.
    2922.22(A); State v. Leeth, 4th Dist. No. 05CA745, 
    2006-Ohio-3575
    , ¶ 6.
    See, e.g., City of Youngstown v. McElroy, 7th Dist. No. 05MA13, 2005-
    Ohio-6595. An abuse of discretion implies that a court’s ruling is
    unreasonable, arbitrary, or unconscionable; it is more than an error in
    judgment. Leeth, supra, citing State ex rel. Richard v. Seidner, 
    76 Ohio St. 3d 14
    , 
    666 N.E.2d 1134
     (1996).
    LEGAL ANALYSIS
    {¶23} The overriding purposes of misdemeanor sentencing are to
    protect the public from future crime by the offender and others and to punish
    the offender. R.C. 2929.21(A). To achieve those purposes the sentencing
    court shall consider the impact of the offense upon the victim and the need
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                   14
    for changing the offender’s behavior, rehabilitating the offender, and making
    restitution to the victim for the offense, the public, or the victim and the
    public. 
    Id.
     R.C. 2929.21(B) further provides that a sentence imposed for a
    misdemeanor shall be reasonably calculated to achieve the two overriding
    purposes of misdemeanor sentencing and consistent with sentences imposed
    for similar offenses committed by similar offenders.
    {¶24} Trial courts are given broad discretion in their sentencing
    authority when it comes to conditions of probation. Garfield Hts. v.
    Tvergyak, 8th Dist. No. 84825, 
    2005-Ohio-2445
    , ¶ 5. The sentencing court
    can impose additional conditions aimed at preserving the interests of justice,
    protection of the community, and the rehabilitation of the offender. Id.; R.C.
    2929.25(B). To determine whether a condition of probation as part of
    sentencing is appropriate and valid, the Supreme Court of Ohio has held,
    when deciding probation conditions, “[C]ourts should consider whether the
    condition (1) is reasonably related to rehabilitating the offender, (2) has
    some relationship to the crime of which the offender was convicted, and (3)
    relates to the conduct which is criminal or reasonably related to future
    criminality and serves the statutory ends of probation.” State v. Jones, 
    49 Ohio St. 3d 51
    , 52, 
    550 N.E. 2d 469
     (1990). The Court further explained in
    State v. Talty, 
    103 Ohio St. 3d 177
    , 181, 2004-Ohio- 4888, 
    814 N.E.2d 1201
    ,
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                                           15
    “Jones stands for the proposition that probation conditions must be
    reasonably related to the statutory ends of probation and must not be overly
    broad. Because community control is the functional equivalent of probation,
    this proposition applies with equal force to community control sanctions.”
    State v. Lane, 2nd Dist. No. 2010 CA21, 
    2010-Ohio-5639
    , Fn 1. “The
    community control statute, despite changing to the manner in which
    probation was administered, did not change the underlying goals of
    rehabilitation, administering justice, and ensuring good behavior….” Id.3
    {¶25} In his third assignment of error, Appellant contends the trial
    court erred in imposing a “no-contact” order between Appellant and his wife
    as a community control sanction. Appellant directs us to his wife’s statement
    to the court that she did not want a protection order at the August 17, 2012
    hearing. On that date, Patricia advised the trial court she did not believe her
    physical safety was threatened and she reiterated her previous statements
    that the protection orders created a hardship.
    {¶26} The State of Ohio also points out generally, where a no contact
    order between spouses has been upheld as a condition of community control,
    the marital relationship was abusive and the defendant was convicted of
    3
    The Lane opinion noted “[T]he precise holding of Jones and its effect on probation and community-
    control conditions has been questioned with regards to sentencing because it predates Am. Sub. S.B. No. 2
    (1995). Lane, supra, Fn1. However, the Lane court also acknowledged “[W]ith the passage of Am. Sub.
    S.B. No. 2 in 1995, community control replaced probation as a possible sentence under Ohio’s felony
    sentencing law.” Id. (Citations omitted).
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                  16
    domestic violence. State v. Marcum, 4th Dist. Nos. 11CA8 and 11CA10,
    2012-Ohio- 572, ¶ 11. See, also, City of Garfield Heights v. Tvergyak, 8th
    Dist. No. 84825, 
    2005-Ohio-2445
    ; State v. Brillhart, 
    129 Ohio App.3d 180
    ,
    
    717 N.E.2d 413
     (1998); State v. Conkle, 
    129 Ohio App.3d 177
    , 
    717 N.E.2d 411
     (1998). See also State v. Harford, 5th Dist. No. 00CA89, 
    2001 WL 227704
    , (Mar. 6, 2001); City of University Heights v. Roders, 8th Dist. No.
    76252, 
    1999 WL 632922
     (Aug. 19, 1999).
    {¶27} The State of Ohio argues here, Appellant’s no contact order is
    reasonably related to rehabilitating the offender, and we agree. The State
    cites Tvergyak, supra, a case in which Tvergyak entered a “no contest” plea
    and was found guilty of misdemeanor domestic violence after an altercation
    between Tvergyak and his wife which occurred subsequent to a night of
    drinking. Upon sentencing, Tvergyak was given a jail sentence, fine, and
    community service. He was also ordered to have no contact with his wife
    during five years of active probation. In affirming the trial court’s sentence,
    the Tyergyak court held:
    “The trial court is in the best position to evaluate the
    circumstances and sentence the defendant accordingly. In this
    case, the facts are such that the trial court’s sentence and
    conditions of probation clearly pass the three-prong test as
    applied in Jones, supra. The no-contact order as a condition of
    Tvergyak’s probation clearly bears a relationship to the crime at
    issue, is related to rehabilitating the defendant, and is fashioned
    as such to prevent future instances of domestic violence.”
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                    17
    {¶28} Here, Appellant was convicted of two acts of domestic violence
    involving his wife as victim. He was also convicted of two charges of
    violating a temporary protection order. Appellant has a violent history of
    actions and threats. We agree with the State’s observation that in this case,
    rehabilitation cannot happen without court intervention. There is an absolute
    need to separate the parties until, at least, Appellant can demonstrate he has
    modified and corrected his way of interacting with his wife.
    {¶29} Here, the trial court imposed the no- contact order for a period
    of two years. In addition to the no -contact order, Appellant was ordered to
    participate in mental health programs and abstain from using drugs and
    alcohol. The trial court’s order also stated the no-contact aspect of the order
    could be modified in the future as circumstances change. In our opinion,
    the order is not overbroad and reasonably relates to the statutory ends of
    probation, pursuant to Jones.
    {¶30} In State v. Marcum, supra, we reversed the trial court’s
    judgment in Patricia Marcum’s appeal of her sentence upon conviction for
    obstructing official business and misuse of 911. There, Mrs. Marcum
    argued the trial court abused its discretion when it imposed a no- contact
    order between the Marcums as a condition of her community control. Under
    the above-cited Jones test, we reasoned that the condition was not
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                      18
    reasonably related to rehabilitating Mrs. Marcum because it did nothing to
    ensure that she uses 911 only for legitimate purposes or that she does not
    obstruct official business. We also reasoned that the order did not
    reasonably relate to future criminality. Here, the convictions in Appellant’s
    case are for domestic violence and violations of a protection order. Thus, the
    no-contact order has a relationship to the crimes committed and otherwise
    fits all prongs of the Jones test.
    {¶31} We believe, as did the appellate court in Tvergyak, that the no-
    contact order as a condition of probation clearly bears a relationship to the
    crime at issue, is related to rehabilitating the defendant, and is fashioned to
    prevent future crimes of domestic violence. We also believe Appellant’s
    sentence is consistent with sentences imposed for similar offenses
    committed by similar offenders. The no- contact order is not overbroad and
    is consistent with the purposes of misdemeanor sentencing. As such, we
    find the trial court did not err and abuse its discretion in fashioning the no-
    contact order as a condition of probation. We therefore, overrule Appellant’s
    third potential assignment of error.
    CONCLUSION
    {¶32} In the case sub judice, the trial court’s findings are supported by
    the record. As such, we also conclude that the potential assignments of error
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                               19
    advanced by appellate counsel are wholly without merit. The motion of
    counsel for Appellant requesting to withdraw as counsel is granted. This
    appeal is dismissed for the reason that it is wholly frivolous.
    APPEAL DISMISSED.
    Hocking App. Nos. 12CA20, 12CA24, and 12CA25                                                20
    JUDGMENT ENTRY
    It is ordered that the APPEAL IS DISMISSED and that Appellant shall pay the
    costs.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing the Hocking
    County Municipal Court to carry this judgment into execution.
    IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
    HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
    is temporarily continued for a period not to exceed sixty days upon the bail previously
    posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
    Court of Ohio an application for a stay during the pendency of proceedings in that court.
    If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
    sixty day period, or the failure of the Appellant to file a notice of appeal with the
    Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
    the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
    of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
    the date of such dismissal.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    Exceptions.
    Hoover, J.: Concurs in Judgment and Opinion.
    Harsha, J.: Concurs in Judgment Only.
    For the Court,
    BY: _________________________
    Matthew W. McFarland
    Presiding Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final judgment
    entry and the time period for further appeal commences from the date of filing with
    the clerk.