State v. Ervin

[Cite as State v. Ervin, 2019-Ohio-1020.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-17
:
v. : Trial Court Case No. 2018-CR-71
:
CAMILLE YVETTE ERVIN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of March, 2019.
...........
KEVIN TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor, 200 North Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
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TUCKER, J.
{¶ 1} Counsel has filed a brief under the authority of Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This filing triggered our independent review
to determine whether non-frivolous appellate issues are present. This review has not
revealed any non-frivolous issues. Accordingly, the trial court’s judgment will be
affirmed.
Facts and Procedural History
{¶ 2} Appellant, Camille Ervin, was indicted on the following counts: (1) Petty Theft
in violation of R.C. 2913.02, a first degree misdemeanor; (2) Attempted Tampering With
Evidence in violation of R.C. 2923.02 and R.C. 2921.12, a fourth degree felony; (3)
Falsification in violation of R.C. 2921.13, a first degree misdemeanor; (4) Escape in
violation of R.C. 2921.34, a fifth degree felony; (5) Possession of Cocaine in violation of
R.C. 2925.11, a fifth degree felony; (6) Possession of Drug Paraphernalia in violation of
R.C. 2925.14, a fourth degree misdemeanor; and (7) Petty Theft in violation of R.C.
2913.02, a first degree misdemeanor. Counts 1-6 involved an incident which occurred
on March 13, 2018. Count 7 involved a separate incident which occurred in December
2017.
{¶ 3} Ervin, following consultation with counsel and negotiations, pleaded guilty to
Count 4 (Escape), Count 5 (Possession of Cocaine), and Count 7 (Petty Theft). The
remaining counts were dismissed, the State recommended the preparation of a pre-
sentence investigation (PSI), and the State agreed to recommend that Ervin, assuming
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the PSI did not reveal a further criminal history, be sentenced to a term of community
control sanctions (CCS). A PSI was ordered and a sentencing hearing was scheduled.
{¶ 4} The trial court sentenced Ervin to ten months in prison on the Escape count,
ten months in prison on the Possession of Cocaine count, and six months incarceration
on the Petty Theft count. The court ordered that the Escape and Possession of Cocaine
sentences be served consecutively but that the Petty Theft sentence be served
concurrently. This appeal follows, with Ervin having been appointed appellate counsel.
{¶ 5} Counsel filed an Anders brief stating that he could find no non-frivolous
issues for appellate review. He further requested leave to withdraw as Ervin’s counsel.
Ervin was informed of the Anders filing. She was further informed that she had a right to
file a pro se brief within 60 days of the Anders notice. Ervin has not filed a brief.
Anders Standard
{¶ 6} An appellate court, upon the filing of an Anders brief, has a duty to determine,
“after a full examination of the proceedings,” whether the appeal is “wholly frivolous.”
Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75,
109 S.Ct. 346, 102 L.Ed.2d 300 (1988). A potential issue is not frivolous merely because
the State has a strong argument in response. State v. Pullen, 2d Dist. Montgomery No.
19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one for which, “on the facts
and law involved, no responsible contention can be made that it offers a basis for
reversal.” State v. Mayberry, 2d Dist. Montgomery No. 27530, 2018-Ohio-2220, ¶ 5. If
we find that any issue is not wholly frivolous, we must reject the Anders brief and appoint
new counsel to represent the defendant-appellant.
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Anders Review
{¶ 7} Counsel, consistent with his duties under Anders, suggests as possible
assignments of error that the trial court did not adequately comply with Crim.R. 11 when
taking Ervin’s guilty plea, and that there is clear and convincing evidence that Ervin’s
sentence is not supported by the record. Counsel, however, concluded that any
argument concerning either issue would be wholly frivolous. We, based upon our
independent review, agree.
{¶ 8} We have carefully reviewed the transcript of the plea hearing. This review
has failed to reveal any potentially meritorious appellate argument regarding the trial
court’s compliance with Crim.R. 11. The trial court, consistent with Crim.R. 11(C)(2)(a),
determined that Ervin was entering the plea voluntarily and that she understood the
nature of the charges and the involved maximum penalties. The trial court, as required
by Crim.R. 11(C)(3)(b), informed Ervin that she was eligible to be sentenced to a term of
CCS, but that the court, despite the felony offenses being of the fifth degree variety, could
impose a prison term because the offenses were committed while she was on bond in
another case. The trial court additionally informed Ervin, again under Crim.R.
11(C)(2)(b), that any prison term could include consecutive sentences, and that any
prison term could be followed by three years of post-release control. The court also
informed Ervin that it could proceed to sentencing and judgment immediately, but that
sentencing would be deferred to allow the completion and consideration of a PSI. The
trial court, in strict compliance with Crim.R. 11(C)(2)(c), informed Ervin of the
constitutional rights she was relinquishing by entering a guilty plea. Ervin indicated that
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she understood each discussed constitutional right, and that by entering a guilty plea this
right was being waived. In short, our review reveals that the trial court fully complied with
Crim.R. 11, and there is nothing in the record to suggest that Ervin did not understand the
plea or that her guilty plea was anything but knowing.
{¶ 9} We also agree with counsel that any argument regarding Ervin’s sentence is
without arguable merit. With respect to the ten-month prison terms for each fifth degree
felony, the trial court had “full discretion” to impose any sentence that was within the
statutory range, and the court had no obligation to explain the sentence. State v. Poling,
2d Dist. Montgomery No. 27882, 2018-Ohio-4630, ¶ 6, quoting State v. King, 2013-Ohio-
2021, 993 N.E.2d 491, ¶ 45 (2d Dist.). An appellate court may vacate or modify a felony
sentence only if it determines by clear and convincing evidence that the sentence, under
the relevant statutory provisions, is not supported by the record, or that the sentence is
otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.2d 1231, ¶ 1; see also R.C. 2953.08. A “sentence is not contrary to law [if it falls]
within the statutory range [and the trial court expressly] state[s] that it * * * considered the
purposes and principles of sentencing [under] R.C. 2929.11 [and] R.C. 2929.12.”
(Citation omitted.) State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d Dist.).
Ervin’s ten-month sentences are within the allowed statutory range (6-12 months) for a
fifth degree felony, and the trial court engaged in a discussion concerning its conclusions
under R.C. 2929.11 and R.C. 2929.12. There is, given this, no potentially meritorious
appellate argument that it could be found by clear and convincing evidence that the ten-
month prison terms are not supported by the record or are contrary to law.
{¶ 10} The final sentencing issue involves the trial court’s imposition of a
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consecutive sentence. A trial court may impose a consecutive sentence if it makes the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporates these
findings into the sentencing entry. A trial court, however, has no obligation to articulate
its reasons for imposing consecutive sentences. State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 17. An appellate court’s review of a consecutive
sentence is conducted under the very deferential standard already discussed. The trial
court made the R.C. 2929.14(C)(4)(a) findings and they were incorporated into the
sentencing entry. Ervin committed the offenses at issue while on bond in another case.
Further, her criminal history was lengthy and included seven previous theft convictions
and a previous falsification conviction. Given these circumstances, any argument that
an appellate court could clearly and convincingly find that the consecutive sentencing
findings were not supported by the record would be wholly frivolous.
{¶ 11} In addition, we have reviewed the entire record, including the PSI and the
plea and sentencing entries. This review has not revealed any potentially meritorious
appellate issues.
Conclusion
{¶ 12} We have found no non-frivolous issues for appellate review. Counsel’s
motion to withdraw is granted, and the judgment of the Champaign County Common
Pleas Court is affirmed.
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WELBAUM, P.J. and HALL, J., concur.
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Copies sent to:
Kevin Talebi
Sean Brinkman
Camille Yvette Ervin
Hon. Nick A. Selvaggio