State v. Craver

[Cite as State v. Craver, 2014-Ohio-2092.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
ANGELO M. CRAVER
Defendant-Appellant
Appellate Case No. 25803
Trial Court Case No. 2013-CR-1323
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 16th day of May, 2014.
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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, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
ANGELO M. CRAVER, Inmate No. 685-713, 5900 B.I.S. Road, Lancaster, Ohio 43130
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Angelo M. Craver, appeals from his prison sentence
received in the Montgomery County Court of Common Pleas following his guilty plea to one
count of bribery. Craver’s 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), wherein she recites that she has found no
potential assignments of error having arguable merit. Counsel states one possible assignment of
error, which we have considered. After performing our duty under Anders, to review the record
independently, we also find no potential assignments of error having arguable merit.
{¶ 2} On May 13, 2013, Appellee, the State of Ohio, filed a Bill of Information in Case
No. 2013 CR 1323 alleging that Craver committed bribery in violation of R.C. 2921.02(C), a
felony of the third degree. On the same day, Craver waived his right of indictment and pled
guilty to the charge. At sentencing, the trial court imposed a 24-month prison term for the
bribery offense. The court ordered the 24-month term to run concurrently with a 3-year prison
term that Craver received in Case No. 2012 CR 2835 for improperly discharging a firearm at or
into a habitation in violation of R.C. 2923.161(A)(1).
{¶ 3} Craver filed a timely appeal from the trial court’s sentencing decision in Case No.
2013 CR 1323. Thereafter, the Montgomery County Court of Common Pleas appointed counsel
to represent Craver on appeal. Craver’s appointed appellate counsel then filed an Anders brief
asserting the following potential assignment of error:
MR. CRAVER’S TWENTY-FOUR MONTH PRISON SENTENCE IS
CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND AN ABUSE
OF THE TRIAL COURT’S DISCRETION.
{¶ 4} In Anders cases we are charged with conducting a thorough examination of the
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record to determine “whether any issues involving potentially reversible error that are raised by
appellate counsel or by a defendant in his pro se brief are ‘wholly frivolous.’ * * * If 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.” (Citation omitted.) State v.
Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7. An appeal is frivolous if it
“presents issues lacking in arguable merit. * * * An issue lacks arguable merit if, on the facts and
law involved, no responsible contention can be made that it offers a basis for reversal.”
(Citation omitted.) Id. at ¶ 8.
{¶ 5} In his Anders brief, Craver contends that his 24-month prison term for bribery is
contrary to law and an abuse of the trial court’s discretion. Specifically, he claims that the
sentence does not serve the purposes and principles of felony sentencing in R.C. 2929.11, and
that the trial court incorrectly weighed the sentencing factors under R.C. 2929.12. For the
following reasons, we conclude that Craver’s contentions lack arguable merit and are wholly
frivolous.
{¶ 6} The appellate standard of review for all felony sentences is set forth in R.C.
2953.08(G)(2). State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.). This statute
states, in pertinent part, that:
The appellate court may increase, reduce, or otherwise modify a sentence that is
appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court’s standard for review
is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds
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either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. (Emphasis added.)
R.C.2953.08(G)(2)(a)-(b).
{¶ 7} In this case, when sentencing Craver, the trial court was not required to make
any findings under R.C. 2929.13(B) or (D); R.C. 2929.14(B)(2)(e) or (C)(4); or R.C. 2929.20(I).
These statutory provisions simply do not apply to the present case.
{¶ 8} In addition, Craver’s prison sentence is not contrary to law. “ ‘[C]ontrary to
law’ means that a sentencing decision manifestly ignores an issue or factor which a statute
requires a court to consider.” (Citation omitted.) State v. Lofton, 2d Dist. Montgomery No.
19852, 2004-Ohio-169, ¶ 11. “[A] sentence is not contrary to law when the trial court imposes a
sentence within the statutory range, after expressly stating that it had considered the purposes and
principles of sentencing set forth in R.C. 2929.11, as well as the factors in R.C. 2929.12.”
Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.
{¶ 9} “ ‘While it is prudent for a trial court to mimic the language of a sentencing
statute * * * the exact language [of] the sentencing statute is not “talismanic,” and, therefore, the
trial court need not recite the exact language * * * as if it amounted to the “magic words”
necessary to impose a prison term on an offender .’ ” State v. Nichols, 195 Ohio App.3d 323,
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2011-Ohio-4671, 959 N.E.2d 1082, ¶ 40 (2d Dist.), quoting State v. Marple, 12th Dist. Clermont
No. CA2004-09-073, 2005-Ohio-6272, ¶ 30. “It is sufficient for a trial court to say that it
considered the purposes and principles of sentencing, without specifically mentioning R.C.
2929.11.” State v. Huckleby, 2d Dist. Montgomery No. 25597, 2013-Ohio-4613, ¶ 13. “[E]ven
if there is no specific mention of [R.C. 2929.11 and 2929.12] in the record, ‘it is presumed that
the trial court gave proper consideration to those statutes.’ ” State v. Cave, 2d Dist. Clark No.
09-CA-6, 2010-Ohio-1237, ¶ 10, quoting Kalish at ¶ 18, fn. 4.
{¶ 10} Here, Craver’s 24-month prison sentence for bribery is within the prescribed
statutory range for third-degree felonies. See R.C. 2929.14(A)(3)(b). Also, the trial court stated
at the sentencing hearing that it had considered “the purposes and principles of sentencing, and
the seriousness and recidivism factors.” Sentencing Trans. (May 29, 2013), p. 46, ln. 15-16.
Accordingly, we find that Craver’s sentence is not contrary to law and that his argument claiming
otherwise lacks merit and is wholly frivolous.
{¶ 11} Craver’s argument that the trial court abused its discretion during sentencing also
lacks merit. “The appellate court’s standard for review is not whether the sentencing court
abused its discretion.” R.C. 2953.08(G)(2). “The standard [under R.C. 2953.08(G)(2)] is more
deferential to the trial court’s determination than an abuse of discretion.” State v. Polhamus, 2d
Dist. Miami No. 2013-CA-3, 2014-Ohio-145, ¶ 36. Nevertheless, even under an abuse of
discretion review, we find no error in the sentence imposed. “A trial court has broad discretion
in sentencing a defendant and a reviewing court will not interfere with the sentence unless the
trial court abused its discretion.” (Citations omitted.) State v. Bray, 2d Dist. Clark No. 2010
CA 14, 2011-Ohio-4660, ¶ 28. “A trial court abuses its discretion when it makes a decision that
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is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio
St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. Based on the record, we conclude that the
trial court’s 24-month prison sentence was reasonable and not an abuse of discretion.
{¶ 12} Pursuant to our responsibilities under Anders, we have conducted an independent
review of the entire record and, having done so, we agree with appellate counsel that there are no
meritorious issues to present on appeal. Accordingly, the judgment of the trial court is affirmed.
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HALL, J., concurs.
FROELICH, P.J., concurring:
{¶ 13} Except as set forth in my concurring opinion in Rodeffer, I concur in the opinion
and judgment of the court.
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Copies mailed to:
Mathias H. Heck
Andrew T. French
Lori R. Cicero
Angelo M. Craver
Hon. Barbara P. Gorman