State v. Groves

[Cite as State v. Groves, 2015-Ohio-4757.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 15-COA-017
MICHAEL S. GROVES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Common
Pleas Court, Case No. 12-CRI-030
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 17, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL MATTHEW J. MALONE
Ashland County Prosecutor Law Offfices of Matthew J. Malone, LLC
EMILY M. BATES 10 East Main Street
Assistant Prosecuting Attorney Ashland, Ohio 44805
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 15-COA-017 2
Hoffman, P.J.
{¶1} Appellant, Michael S. Groves, was indicted on three counts of Importuning
in violation of R.C. 2707.07(B), all felonies of the fifth degree and one count of
Disseminating Matter Harmful to Juveniles in violation of R.C. 2907.31(A)(1), a
misdemeanor of the first degree.
{¶2} Pursuant to a plea agreement, Appellant plead guilty to count one
(Importuning, a felony of the fifth degree) and count four (Disseminating Matter Harmful
to Juveniles, a misdemeanor of the first degree). The State agreed to dismiss counts
two and three.
{¶3} Appellant received a sentence of 180 days of local incarceration on the
Importuning count as part of a community control sanction. Further, Appellant received
180 days of jail on the Disseminating Matter Harmful to Juveniles count, however, 90 of
those days were suspended.
{¶4} Eventually, Appellant was charged with violating the terms of his
community control. Appellant agreed with three of the four violations including failure to
report to his supervising officer, a curfew violation and possession of a cell phone.
Following Appellant’s stipulation to the community control violations, the trial court
imposed a twelve month prison sentence giving Appellant credit for time served.
{¶5} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth one proposed
Assignments of Error. Appellant has not raised any additional assignments of error pro
se.
Ashland County, Case No. 15-COA-017 3
{¶6} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
{¶7} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738.
POTENTIAL ASSIGNMENT OF ERROR
I.
{¶8} “WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON
APPELLANT FOR VIOLATING HIS COMMUNITY CONTROL WAS CLEARLY AND
CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF ITS DISCRETION.”
{¶9} We now will address the merits of Appellant’s potential Assignment of
Error.
Ashland County, Case No. 15-COA-017 4
I.
{¶10} In her first potential Assignment of Error, Appellant challenges the
sentence imposed by the trial court.
{¶11} The Ohio Supreme Court has established a two-step analysis for
reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The
first step is to “examine the sentencing court's compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's
decision to be reviewed under an abuse-of-discretion standard. Id.
{¶12} We find the sentence imposed was not clearly and convincingly contrary
to law. The sentence in this case was imposed within the statutory range provided in
R.C. 2929.14.
{¶13} Having reviewed the sentence, the presentence investigation report, and
the sentencing factors found in R.C. 2929.12 we also do not find the trial court abused
its discretion in imposing the sentence in this case.
{¶14} Appellant’s proposed assignment of error is overruled.
Ashland County, Case No. 15-COA-017 5
{¶15} For these reasons, after independently reviewing the record, we agree
with counsel's conclusion that no arguably meritorious claims exist upon which to base
an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant
counsel's request to withdraw, and affirm the judgment of the Ashland County Court of
Common Pleas.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur