State v. Saunders , 2022 Ohio 1424 ( 2022 )

[Cite as State v. Saunders, 2022-Ohio-1424.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-32
:
v. : Trial Court Case No. 2021-CR-75
:
RICHARD L. SAUNDERS, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of April, 2022.
...........
KEVIN S. TALEBI, Atty. Reg. No. 0069198, Prosecuting Attorney, Champaign County
Prosecutor’s Office, Appellate Division, 200 N. Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
MISTY M. CONNORS, Atty. Reg. No. 0075457, P.O. Box 340246, Dayton, Ohio 45434
Attorney for Defendant-Appellant
.............
LEWIS, J.
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{¶ 1} Richard L. Saunders, Jr. appeals from his conviction on one count of
domestic violence, a fourth-degree felony.
{¶ 2} Saunders’ appointed appellate counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence
of non-frivolous issues for review. We notified Saunders of the Anders filing and gave him
an opportunity to submit his own brief. He did not file a pro se brief.
{¶ 3} Saunders’ appellate counsel has considered various issues and has
concluded that they lack arguable merit. Based on our independent review of the record,
we agree with counsel’s assessment. Accordingly, the trial court’s judgment will be
affirmed.
I. Background
{¶ 4} A grand jury indicted Saunders on two counts of third-degree felony domestic
violence and one count of menacing, a misdemeanor. Saunders subsequently pled guilty
to an amended charge of domestic violence as a fourth-degree felony in exchange for
dismissal of the other charges. The trial court accepted the guilty plea and ordered a
presentence investigation. At sentencing, the trial court found Saunders not amenable to
community control. Based on his extensive criminal history, his violation of the conditions
of his bond in this case, and other factors, the trial court imposed a 17-month prison term
to be followed by discretionary post-release control of up to three years. The trial court
also ordered Saunders to pay a $250 fine and costs. This appeal followed.
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II. Analysis
{¶ 5} Under Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we must
conduct an independent review to determine whether Saunders’ appeal is wholly
frivolous. “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 made that it offers a basis
for reversal.” Id., citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788,
¶ 4.
{¶ 6} In the present case, the Anders brief identifies the following issues that
Saunders’ appellate counsel considered: (1) whether his sentence is excessive or
inconsistent with sentences imposed for similar crimes committed by similar offenders;
(2) whether the trial court improperly imposed a harsher sentence based on a dismissed
charge in another county; and (3) whether the trial court imposed a harsher sentence
because the sentencing judge had been a prosecutor in a prior domestic-violence case
against Saunders. Appellate counsel sees no non-frivolous argument with regard to any
of these issues. We agree with counsel’s assessment.
{¶ 7} The presentence-investigation report reflected that Saunders had a lengthy
criminal history. At sentencing, Saunders described himself as a “monster.” (August 10,
2021 Tr. at 12.) By the prosecutor’s count, he had seven prior domestic-violence charges
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and several domestic-violence convictions. His adult record also included convictions for
alcohol-related offenses and assault. He previously served a prison term for domestic
violence, and he admitted multiple violations of no-contact orders while this case was
pending. As noted above, Saunders also benefitted from having charges dismissed and
reduced in this case. The charge to which he pled guilty was reduced from a third-degree
felony to a fourth-degree felony by omitting one of his prior domestic-violence convictions.
The victim in the present case was Saunders’ 80-year-old father. Based on the record
before us, we see no non-frivolous argument that the 17-month prison sentence was
“excessive” or inconsistent with sentences imposed for similar crimes committed by
similar offenders.
{¶ 8} We also see no arguable issue with regard to whether the trial court imposed
a harsher sentence based on a dismissed charge from another county. This argument
concerns Saunders’ allegedly engaging in conduct that resulted in a Logan County
domestic-violence charge while the present case was pending. The Logan County charge
eventually was dismissed without prejudice, apparently due to non-cooperation from the
victim. Saunders admitted, however, that he had been found at the scene in Logan County
with the victim, who was the subject of a no-contact order. He also admitted residing with
his father, who was a protected person under a no-contact order. He further admitted
making approximately 250 telephone calls to his father from the Logan County jail in
violation of a no-contact order. Prior to sentencing, Saunders admitted bond violations by
failing to be a law-abiding citizen as a result of being charged with both felonious assault
and domestic violence in Logan County and by violating a no-contact order. (June 9, 2021
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Tr. at 2-3.) In light of these facts, the trial court found at sentencing that “Defendant
violated bond by failing to be a law-abiding citizen and having contact—having violated
the no-contact order.” (August 10, 2021 Tr. at 20.) Regardless of the Logan County
domestic-violence charge ultimately being dismissed, the record supports the trial court’s
finding that Saunders failed to be a “law-abiding citizen” based on his admitted bond
violations. We see no non-frivolous issue for appeal.
{¶ 9} With regard to the last issue raised in the Anders brief, nothing in the record
suggests that the trial court imposed a harsher sentence because the sentencing judge
had been a prosecutor in a prior case involving Saunders. This issue was not raised
below, and Saunders made no objection to the trial court judge’s participation. “Absent
some showing of prejudgment, bias, or an appearance of bias, it will not be assumed that
a trial judge is unable to provide a fair trial based solely on prior prosecutorial participation
in an unrelated case.” In re Disqualification of Batchelor, 136 Ohio St.3d 1211, 2013-Ohio-
2626, 991 N.E.2d 242, ¶ 9.
{¶ 10} Finally, in satisfaction of our obligation under Anders, we independently
have examined the record, including the plea and sentencing transcript and presentence-
investigation report, and we have found no non-frivolous issues for appeal. The trial court
conducted a thorough plea hearing in full compliance with Crim.R. 11(C)(2)(a), (b), and
(c), and Saunders entered his guilty plea knowingly, intelligently, and voluntarily.
{¶ 11} Concerning Saunders’ sentence, appellate review is governed by R.C.
2953.08(G)(2). Under that statute, we may vacate or modify a sentence only if the record
does not support findings under certain enumerated statutes or if the sentence is contrary
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to law. Here the referenced statutes do not apply. In addition, Saunders’ sentence is not
contrary to law because it falls within the statutory range for his offense, and the trial court
explicitly considered the principles and purposes of sentencing in R.C. 2929.11 and the
sentencing factors in R.C. 2929.12. We note too that “[n]othing in R.C. 2953.08(G)(2)
permits an appellate court to independently weigh the evidence in the record and
substitute its judgment for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, ¶ 42.
III. Conclusion
{¶ 12} Having found no non-frivolous issues for appeal, we grant appointed
appellate counsel’s request for permission to withdraw from further representation and
affirm the judgment of the Champaign County Common Pleas Court.
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DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Kevin S. Talebi
Misty M. Connors
Hon. Nick A. Selvaggio