State v. Dorsey , 2021 Ohio 76 ( 2021 )

[Cite as State v. Dorsey, 2021-Ohio-76.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28747
:
v. : Trial Court Case No. 2019-CR-4038
:
ANTONE G. DORSEY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 15th day of January, 2021.
...........
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
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, J.
-2-
{¶ 1} Defendant-appellant, Antone G. Dorsey, appeals from his conviction in the
Montgomery County Court of Common Pleas after he pled guilty to attempted trespass in
a habitation. On May 20, 2020, Dorsey’s appellate counsel filed a brief under the
authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
asserting the absence of any non-frivolous issues for appeal. On May 21, 2020, this
court notified Dorsey that his counsel found no meritorious claims to present on appeal
and granted Dorsey 60 days to file a pro se brief assigning any errors for review. Due to
the tolling order issued by the Supreme Court of Ohio in response to the COVID-19
pandemic, and in conjunction with Am.Sub.H.B. 197, we later extended the deadline for
Dorsey to file a pro se brief to August 31, 2020. Dorsey, however, failed to file a pro se
brief. Thereafter, we conducted an independent review of the record as required by
Anders and found no issues with arguable merit for appeal. Therefore, the judgment of
the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On January 6, 2020, a Montgomery County grand jury returned an indictment
charging Dorsey with one count of trespass in a habitation in violation of R.C. 2911.12(B),
a felony of the fourth degree, and one count of failure to comply with the order or signal
of a police officer in violation of R.C. 2921.331(B), a misdemeanor of the first degree.
{¶ 3} The charges arose after Dorsey encountered a Vandalia police officer at a
gas station on the morning of December 8, 2019. The officer was called to investigate a
report of a suspicious vehicle parked at one of the gas station’s pumps for approximately
an hour. When the officer approached the vehicle, he observed a male, later identified
-3-
as Dorsey, sleeping inside. The officer proceeded to wake Dorsey and ask for his
identification. Dorsey responded by reaching his hand down between the driver’s seat
and the driver’s-side door. Upon seeing this, the officer ordered Dorsey to keep his
hands up where the officer could see them. Dorsey, however, continued to put his hand
back down beside the driver’s seat. In response, the officer grabbed Dorsey’s hand and
ordered him to stop. Dorsey then pulled away from the officer and drove off at a high
rate of speed. Dorsey eventually exited the vehicle and fled on foot. A canine unit
tracked Dorsey and found him hiding inside an unlocked sunroom of a 78-year-old
woman’s residence on Meadowview Court in Vandalia. Dorsey was then taken into
custody and charged with the aforementioned offenses.
{¶ 4} On February 21, 2020, Dorsey entered into a plea agreement with the State
whereby he agreed to plead guilty to an amended charge of attempted trespass in a
habitation in violation of R.C. 2911.12(B)/ R.C. 2923.02, a felony of the fifth degree. In
exchange for Dorsey’s guilty plea, the State agreed to the amended charge and to dismiss
the charge for failure to comply with the order or signal of a police officer. After
discussing the plea agreement with both parties, the trial court accepted Dorsey’s guilty
plea and ordered a presentence investigation report (“PSI”) for purposes of sentencing.
{¶ 5} At sentencing, the trial court ordered Dorsey to serve nine months in prison
with 89 days of jail time credit. The trial court also ordered Dorsey to pay court costs.
In issuing its sentencing decision, the trial court advised Dorsey that he was not eligible
for the TCAP (“Targeted Community Alternatives to Prison”) program under R.C.
-4-
2929.34(B)(3)(c)1 because he had been previously convicted of an offense of violence.2
The trial court further advised Dorsey that post-release control would be discretionary for
a period of up to three years after he served his time in prison.
{¶ 6} Dorsey now appeals from his conviction. As previously noted, Dorsey’s
appellate counsel filed an Anders brief asserting the absence of any non-frivolous issues
for appeal.
Standard of Review
{¶ 7} Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this court
must conduct an independent review of the record to determine if the appeal at issue is
wholly frivolous. Id. at 744. “Anders equates a frivolous appeal with one that presents
issues lacking in arguable merit. An issue does not lack arguable merit merely because
the prosecution can be expected to present a strong argument in reply, or because it is
uncertain whether a defendant will ultimately prevail on that issue on appeal.” State v.
Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n issue
lacks arguable merit if, on the facts and law involved, no responsible contention can be
1 R.C. 2929.34(B)(3)(c) governs TCAP and provides that on and after July 1, 2018, no
person sentenced by the court of common pleas of a voluntary county to a prison term
for a felony of the fifth degree shall serve the prison term in an institution under the control
of the Ohio Department of Rehabilitation and Correction (“ODRC”), but shall instead serve
the sentence as a term of confinement in a local facility such as a county jail or
community-based correctional facility. See R.C. 2929.34(C) and (D). Montgomery
County is a “voluntary county” that participates in TCAP. See State v. Pope, 2d Dist.
Montgomery Nos. 28142, 28143, 2019-Ohio-4100, ¶ 5.
2 R.C. 2929.34(B)(3)(d)(ii) provides that a defendant who has been previously convicted
of a felony offense of violence as defined by R.C. 2901.01 is ineligible for TCAP’s
mandated imprisonment at a non-ODRC facility.
-5-
made that it offers a basis for reversal.” Id., citing State v. Pullen, 2d Dist. Montgomery
No. 19232, 2002-Ohio-6788, ¶ 4.
{¶ 8} If we determine the appeal is frivolous, we may grant counsel’s request to
withdraw and then dismiss the appeal without violating any constitutional requirements,
or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,
2d Dist. Champaign No. 2010-CA-13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.
However, “[i]f we find that any issue presented or which an independent analysis reveals
is not wholly frivolous, we must appoint different appellate counsel to represent the
defendant.” Marbury at ¶ 7, citing Pullen.
Law and Analysis
{¶ 9} As previously noted, Dorsey’s appellate counsel filed an Anders brief
asserting the absence of any issues with arguable merit for appeal. Rather than raising
any potential assignments of error for this court to review, counsel simply discussed why
Dorsey’s guilty plea and sentence were valid.
{¶ 10} With regard to Dorsey’s guilty plea, Dorsey’s counsel concluded that the
transcript of Dorsey’s plea hearing reflects that the trial court complied with all the
requirements for accepting guilty pleas in Crim.R. 11(C) and that Dorsey’s guilty plea was
knowingly, intelligently, and voluntarily entered. “In order for a plea to be given knowingly
and voluntarily, the trial court must follow the mandates of Crim.R. 11(C).” State v.
Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 13. Pursuant to
Crim.R. 11(C)(2), the trial court may not accept a defendant’s guilty plea without first
addressing the defendant personally and:
-6-
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s favor,
and to require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
Crim.R. 11(C)(2)(a)-(c).
{¶ 11} Here, the record of the plea hearing establishes that the trial court ensured
that Dorsey’s plea was being made voluntarily and that Dorsey understood the nature of
the attempted trespass in a habitation charge for which he was pleading guilty. The trial
court also correctly advised Dorsey of the maximum possible penalty he could receive for
his offense, which included a 12-month prison sentence, non-mandatory post-release
control for up to three years, a $2,500 fine, and payment of court costs and any restitution.
-7-
{¶ 12} Since Dorsey was on federal probation at the time of his plea hearing, the
trial court also advised Dorsey that, as a result of his guilty plea, his federal probation
could be revoked and that the federal authorities could impose a sentence consecutive
to the sentence imposed in the instant case. The trial court further advised Dorsey that
a guilty plea was a complete admission of his guilt, and that upon accepting his guilty
plea, the trial court could proceed with entering a judgment and sentence. Lastly, the
trial court advised Dorsey of all the constitutional rights he was waiving under Crim.R.
11(C)(2)(c) by entering his guilty plea.
{¶ 13} For the foregoing reasons, we agree with counsel that the record of the plea
hearing establishes that the trial court complied with all the requirements under Crim.R.
11(C)(2). Because the record establishes that Dorsey understood all of the trial court’s
advisements at the plea hearing, there are no non-frivolous issues for appeal concerning
Dorsey’s guilty plea.
{¶ 14} Dorsey’s counsel also concluded that Dorsey’s sentence was not contrary
to law. When reviewing a felony sentence we must apply the standard of review set forth
in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 7-10. Under that statute, an appellate court may vacate or modify 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 certain enumerated statutes or
that the sentence is otherwise contrary to law. Id. at ¶ 1, 9.
{¶ 15} Here, the trial court was not required to make any findings under the
relevant statutes enumerated in R.C. 2953.08(G)(2). Therefore, Dorsey’s sentence may
be modified or vacated on appeal only if the sentence was clearly and convincingly
-8-
contrary to law. “A sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.” (Citation omitted.) State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74
(2d Dist.).
{¶ 16} Previously, when reviewing sentences that only required the trial court to
consider the factors in R.C. 2929.11 and R.C. 2929.12, this court has followed the
Supreme Court of Ohio’s language in Marcum stating that:
[I]t is fully consistent for appellate courts to review those sentences
that are imposed solely after consideration of the factors in R.C. 2929.11
and 2929.12 under a standard that is equally deferential to the sentencing
court. That is, an appellate court may vacate or modify any sentence that
is not clearly and convincingly contrary to law only if the appellate court finds
by clear and convincing evidence that the record does not support the
sentence.
Marcum at ¶ 23.
{¶ 17} Recently, however, in State v. Jones, Ohio Slip Opinion No. 2020-Ohio-
6729, __ N.E.3d __, the Supreme Court of Ohio indicated that the aforementioned
language in Marcum was dicta. Id. at ¶ 27. In Jones, the court held that “R.C.
2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or vacate
a sentence based on its view that the sentence is not supported by the record under R.C.
2929.11 and 2929.12.” Id. at ¶ 39. In so holding, the Supreme Court explained that “an
appellate court’s determination that the record does not support a sentence does not
-9-
equate to a determination that the sentence is ‘otherwise contrary to law’ as that term is
used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Therefore, pursuant to Jones, an appellate
court errs if it relies on the dicta in Marcum and modifies or vacates a sentence “based
on the lack of support in the record for the trial court’s findings under R.C. 2929.11 and
R.C. 2929.12.” Id. at ¶ 29.
{¶ 18} As a result of the Supreme Court’s holding in Jones, when reviewing felony
sentences that are imposed solely after considering the factors in R.C. 2929.11 and R.C.
2929.12, we shall no longer analyze whether those sentences are unsupported by the
record. We simply must determine whether those sentences are contrary to law. As
previously noted, “[a] sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.” (Citation omitted.) Brown, 2017-Ohio-8416, 99 N.E.3d 1135, at ¶ 74.
{¶ 19} In this case, Dorsey’s nine-month prison sentence was within the authorized
statutory range for fifth-degree felonies, see R.C. 2929.14(A)(5), and the record of the
sentencing hearing indicates that the trial court considered the purposes and principles
of felony sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C.
2929.12 when issuing its sentencing decision. See Sentencing Tr. p. 26. Therefore,
Dorsey’s nine-month prison sentence was not contrary to law.
{¶ 20} We also note that the trial court’s TCAP eligibility determination was not
contrary to law. R.C. 2929.34(B)(3)(d)(ii) provides that a defendant who has previously
been convicted of a felony offense of violence as defined in R.C. 2901.01 is not eligible
for TCAP. Dorsey’s PSI report established that he had a 2012 felony conviction in
-10-
Greene County for inducing panic in violation of R.C. 2917.31, which is defined as an
offense of violence under R.C. 2901.01(A)(9)(a). Therefore, the record establishes that
the trial court correctly determined that Dorsey was ineligible for TCAP due to Dorsey’s
previously being convicted of an offense of violence.
{¶ 21} For the foregoing reasons, we agree with counsel’s conclusion that
Dorsey’s sentence is not contrary to law and that there are no issues with arguable merit
for appeal.
Conclusion
{¶ 22} After conducting an independent review of the record as required by
Anders, we find that, based on the facts and relevant law involved, there are no issues
with arguable merit to present on appeal. Therefore, the judgment of the trial court is
affirmed.
.............
HALL, J., concurs.
FROELICH, J., concurs in judgment:
I write separately to express concern about the breadth of the recent holding in
Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __. However, in this case,
even any arguable issue regarding sentencing (as opposed to other matters) is moot
based on Dorsey’s having completed his sentence.
-11-
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Kristin L. Arnold
Antone G. Dorsey
Hon. Mary Katherine Huffman