State v. Warford

[Cite as State v. Warford, 2018-Ohio-4055.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-17-1307
L-17-1308
Appellee
Trial Court Nos. CR0201501526
v. CR0201702385
Brian Warford DECISION AND JUDGMENT
Appellant Decided: October 5, 2018
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Julia R. Bates, Lucas County Prosecuting Attorney, and
James F. Tafelski, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
SINGER, J.
Introduction
{¶ 1} In this consolidated matter, appellant, Brian Warford, challenges the
November 16, 2017 judgments of the Lucas County Court of Common Pleas, in which he
was sentenced to 42 months of incarceration for escape in violation of R.C.
2921.34(A)(1) and (C)(2)(b), a felony of the third degree, and for domestic violence in
violation of R.C. 2919.25(A) and (D), a felony of the fourth degree. Finding no error, we
affirm.
Background
{¶ 2} On March 27, 2015, appellant was indicted on the escape charge. Appellant
pled not guilty in April 2015, but eventually withdrew the plea and pled no contest on
May 19, 2015. Appellant was sentenced to three years of community control on July 9,
2015, and the sentencing court reserved a 30-month sentence to be imposed in the event
appellant violated his community control conditions.
{¶ 3} Specifically, at the July 9, 2015 sentencing hearing the trial court stated as
follows: “A violation of the law—of the terms and conditions of community control,
violation of any law * * * may lead to a longer, more restrictive sanction. The Court may
impose a sentence of 30 months as to the charge of escape.” This is case No. CR0201501526.
{¶ 4} Appellant violated community control several times. For instance, he did so
in both October 2015 and September 2016, to which the trial court responded by
continuing his community control sanction.
{¶ 5} On August 10, 2017, however, appellant was indicted on the domestic
violence charge, along with another charge for disrupting public services in violation of
R.C. 2909.04(A)(1) and (C), a felony of the fourth degree. He pled no contest to the
domestic violence, and the charge for disrupting public services was dismissed.
Appellant was sentenced to 12 months of incarceration. This is case No. CR0201702385.
2.
{¶ 6} This domestic violence conviction was found to be a violation of appellant’s
community control conditions. This led the trial court to also impose the reserved 30-
month sentence of CR0201501526. The sentences were set to run consecutively, for a
total prison term of 42 months. The judgments were journalized November 16, 2017.
{¶ 7} A timely notice of appeal was filed on December 15, 2017, and appellant
now appeals.
Anders Brief
{¶ 8} On May 15, 2018, appellant’s counsel filed a request to withdraw pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel
asserted that, after thoroughly reviewing the transcript of the proceedings in the trial court
and the applicable case law, no meritorious assignments of error could be presented.
Counsel did, however, submit the following potential assignment of error:
Appellant’s sentence should be vacated due to the trial court’s
failure to comply with R.C. 2929.11 and 2929.12.
{¶ 9} The state also filed an Anders brief, concurring with the conclusion of
appellant’s counsel that there was no arguable basis for a valid assignment of error and
urging this court to permit counsel to withdraw. Appellant did not file a pro se brief.
{¶ 10} The procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as
State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978).
3.
{¶ 11} In Anders, the U.S. Supreme Court found if counsel, after a conscientious
examination of the case, determines it to be wholly frivolous, counsel should so advise
the court and request permission to withdraw. Anders at 744. This request must be
accompanied by a brief identifying anything in the record that could arguably support the
appeal. Id. In addition, counsel must furnish the client with a copy of the brief and
request to withdraw and allow the client sufficient time to raise any matters the client so
chooses. Id. Once the requirements are fulfilled, the appellate court must conduct a full
examination of the proceedings and decide if the appeal is indeed frivolous. Id. If the
appellate court determines the argument is frivolous, it may grant counsel’s request to
withdraw and dismiss the appeal or it may proceed to a decision on the merits. Id.{¶ 12} On June 29, 2018, we released State v. Wenner, 6th Dist. Sandusky No.
S-18-4, 2018-Ohio-2590, in which this court pronounced that it will no longer accept
Anders briefs in criminal appeals. Nevertheless, because this case was filed before
Wenner, we will proceed with the process and role customarily undertaken pursuant to
Anders.
{¶ 13} We find appellant’s counsel has satisfied the requirements of Anders,
setting forth one potential assignment of error. Consequently we will address the
potential error put forth by counsel, and then follow with our examination of the record.
Potential Assignment of Error
{¶ 14} Appellant’s counsel asserts, as a potential error, that the trial court failed to
comply with R.C. 2929.11 and 2929.12, when imposing sentence upon appellant.
4.
{¶ 15} R.C. 2929.11(A) pertinently provides, “[t]he overriding purposes of felony
sentencing are to protect the public from future crime by the offender and others and to
punish the offender using the minimum sanctions.” It follows, “the sentencing court shall
consider the need for incapacitating the offender, deterring the offender and others from
future crime, rehabilitating the offender, and making restitution to the victim of the
offense, the public, or both.” See R.C. 2929.11(A); State v. Craig, 6th Dist. Wood No.
WD-14-061, 2015-Ohio-1479, ¶ 10. A felony sentence, therefore, “shall be reasonably
calculated to achieve the two overriding purposes * * * set forth in [R.C. 2929.11(A)],
commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” See R.C. 2929.11(B); Craig.
{¶ 16} R.C. 2929.12(A) pertinently provides, “a court that imposes a sentence
under this chapter upon an offender for a felony has discretion to determine the most
effective way to comply with the purposes and principles of sentencing.” In this
determination, “R.C. 2929.12 provides a non-exhaustive list of factors the court must
consider in determining the relative seriousness of the underlying crime and the
likelihood that the defendant will commit another offense in the future.” State v.
Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26. “The factors
include: (1) the physical, psychological, and economic harm suffered by the victim,
(2) the defendant’s prior criminal record, (3) whether the defendant shows any remorse,
and (4) any other relevant factors.” Id.
5.
{¶ 17} A sentencing court is not required to use any specific language or make
specific findings to demonstrate that it considered the applicable sentencing criteria under
R.C. 2929.11 and 2929.12. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793(2000).
{¶ 18} In this case, at the November 14, 2018 sentencing hearing, the trial court
elaborated on its reasons for sentencing appellant in the manner in which it did, as
follows:
So you’re on community control for a felony. You picked up a new
felony offense of escape, and you remained on community control in both
of them. Now in 2017-2385 is your second felony that has occurred while
on community control, and the new one is a felony offense of violence,
being domestic violence, a felony of the fourth degree. I understand the
position of the parties, but it is my finding that [appellant] is not amenable
to community control and that prison is consistent with the principles and
purposes of sentencing. Therefore, as it relates to 2015-1526, I impose a
prison term of 30 months; 2017-2385, 12 months. These sentences are
ordered to be served consecutive to one another for [a] total stated prison
term of 42 months. Consecutive sentences are necessary to protect the
public from future crime and to punish the defendant, not disproportionate
to the seriousness of the defendant’s conduct or the danger he possess to the
6.
public or himself. I find that [appellant’s] criminal history deserves
consecutive sentences.
{¶ 19} Although neither statute is referenced in the trial court’s open-court
statement, we find the rationale demonstrates the necessary considerations under the
sentencing criteria outlined in R.C. 2929.11 and 2929.12. Moreover, in both of the
November 16, 2017 sentencing entries the trial court states verbatim as follows:
Being necessary to fulfill the purposes of R.C. 2929.11 and
2929.14(C)(4), consecutive sentence[s] are necessary to protect the public
from future crime or to punish the offender and are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender
poses to the public. The court further finds the defendant was on
community control, and the defendant’s criminal history demonstrates that
consecutive sentences are necessary to protect the public, therefore the
sentences are ordered to be served consecutively.
{¶ 20} Although R.C. 2929.12 is not specifically cited in the sentencing entries,
we find the provided rationale demonstrates the necessary considerations. Consequently,
we hold the trial court complied with R.C. 2929.11 and 2929.12. Appellant’s potential
assignment of error is not well-taken.
7.
Our Examination
{¶ 21} Last is our examination of the record to determine whether this appeal is
indeed frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of the
record does not reveal reversible error. Finding this appeal to be wholly frivolous and
without merit, counsel’s request to withdraw is granted.
Conclusion
{¶ 22} The November 16, 2017 judgments of the Lucas County Court of Common
Pleas are affirmed. Appellant is ordered to pay the costs of this consolidated appeal
pursuant to App.R. 24. The clerk is ordered to serve all parties with notice of this
decision.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
8.