State v. Hicks

[Cite as State v. Hicks, 2018-Ohio-5197.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1232
Appellee Trial Court No. CR0201603250
v.
Emmett Hicks DECISION AND JUDGMENT
Appellant Decided: December 21, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Brad F. Hubbell, for appellant.
*****
MAYLE, P.J.
{¶ 1} Defendant-appellant, Emmett Hicks, appeals the July 5, 2017 judgment of
the Lucas County Court of Common Pleas sentencing him to a five-year prison term for
his burglary and felonious assault convictions. His appointed counsel filed a “no-merit
brief,” proposing a single potential assignment of error, but requested leave to withdraw
as counsel, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967).
{¶ 2} On June 29, 2018 this court released State v. Wenner, 6th Dist. Sandusky
No. S-18-4, 2018-Ohio-2590, in which we pronounced that we will no longer accept
Anders briefs in criminal appeals. However, because this case was filed pre-Wenner, we
have engaged in the review that we had customarily undertaken under Anders. For the
reasons that follow, we affirm the trial court judgment and grant counsel’s motion to
withdraw.
I. Background
{¶ 3} On June 19, 2017, Hicks enter entered a plea of no contest to burglary, a
violation of R.C. 2911.12(A)(1), a second-degree felony, and felonious assault, a
violation of R.C. 2903.11(A)(1) and (D), also a second-degree felony. According to the
facts presented by the state at Hicks’ plea hearing, the victim in this case is Hicks’ ex-
girlfriend, with whom he has two children. On December 1, 2016, at approximately 8:40
a.m., the victim prepared to walk her three children to the bus stop. She opened the door
of her apartment and found Hicks standing there with a baseball bat. The victim told
Hicks that he was not welcome, but he forced his way inside.
2.
{¶ 4} Hicks accused the victim of being unfaithful to him and started swinging the
bat at her. The victim’s young children tried to intervene, but were instead assaulted and
forced into a back bedroom. Hicks confiscated their cellphone and told them not to come
out. Hicks then forced the victim to remove her clothes and continued to accuse her of
having sexual relations with another man. He searched her apartment, and when he
found no one else there, he surmised that her paramour had fled her second-floor
apartment by jumping off the balcony. Hicks then dragged the victim, still undressed, out
to the balcony, picked her up, and threw her over the railing. The victim fractured her
ankle in the fall.
{¶ 5} Following his plea, the court made a finding of guilt, ordered a presentence
investigation report (“PSI”), and continued the matter for sentencing. On July 3, 2017,
the court sentenced Hicks to five years in prison on each count, to be served concurrently,
and imposed three years’ mandatory post-release control. Hicks’ conviction and sentence
were memorialized in a judgment entry journalized on July 5, 2017.
{¶ 6} Hicks appealed, and pursuant to Anders, his counsel offers one potential
assignment of error for our review:
Did the trial court err when it sentenced Appellant to five years as
the sentence is excessive?
3.
II. Review under Anders
{¶ 7} Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th
Dist.1978), set forth the procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue. In Anders, the United States
Supreme Court held that if counsel, after a conscientious examination of the case,
determines it to be wholly frivolous, he should so advise the court and request permission
to withdraw. Anders at 744. This request, however, must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id.Furthermore, counsel must furnish his client with a copy of the brief, request to withdraw
from representation, and allow the client sufficient time to raise any matters that he
chooses. Id.{¶ 8} Once these requirements are satisfied, the appellate court must conduct a full
examination of the proceedings held below to determine if the appeal is indeed frivolous.
If the appellate court determines that the appeal is frivolous, it may grant counsel’s
request to withdraw and dismiss the appeal without violating constitutional requirements,
or it may proceed to a decision on the merits if state law so requires. Id. Should the
appellate court find that the record supports any arguable claims, it should appoint new
appellate counsel. Penson v. Ohio, 488 U.S. 75, 76, 109 S.Ct. 346, 102 L.Ed.2d 300(1988).
4.
{¶ 9} Hicks appeals his conviction and sentence to this court through appointed
counsel. His counsel has stated that following a thorough examination of the record, he
finds no non-frivolous appealable issues and requests permission to withdraw. Counsel
followed the requirements of Anders and transmitted to his client a copy of the brief
outlining the potential assignment of error and his request to withdraw, in sufficient time
for Hicks to file his own brief raising his own arguments. Hicks did not file a pro se
brief. Accordingly, this court will examine the potential assignment of error counsel
identified and review the entire record below to determine whether this appeal lacks merit
and is, therefore, wholly frivolous.
III. Law and Analysis
A. Review of the Potential Assignment of Error
{¶ 10} Counsel proposes error in the length of the sentence imposed by the trial
court. He suggests that the sentence was excessive and that the court failed to consider
mitigating factors and the victim’s oral statement at sentencing during which she
requested leniency for Hicks.
{¶ 11} We review a challenge to a felony sentence under R.C. 2953.08(G)(2).
R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise
modify a sentence or may vacate the sentence and remand the matter to the sentencing
court for resentencing if it clearly and convincingly finds either of the following:
5.
(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.
{¶ 12} Hicks’ proposed assignment of error challenges only R.C.
2953.08(G)(2)(b). In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-
425, ¶ 15, we recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, provides guidance in determining whether a sentence is clearly and
convincingly contrary to law for purposes of R.C. 2953.08(G)(2)(b). In Kalish, the Ohio
Supreme Court held that where the trial court expressly states that it considered the
purposes and principles of sentencing in R.C. 2929.11 and the seriousness and recidivism
factors listed in R.C. 2929.12, properly applies postrelease control, and sentences the
defendant within the statutorily-permissible range, the sentence is not clearly and
convincingly contrary to law. Kalish at ¶ 18.
{¶ 13} Hicks was convicted of two second-degree felonies. R.C. 2929.14(A)(2)
provides that “[f]or a felony of the second degree, the prison term shall be two, three,
four, five, six, seven, or eight years.” Thus, Hicks’ five-year sentence is within the
statutorily-permissible range. Additionally, for a felony of the second degree, R.C.
6.
2967.28(B)(2) provides for a mandatory three-year period of post-release control, as was
imposed here. Thus, post-release control was properly imposed.
{¶ 14} As to the purposes and principles of sentencing in R.C. 2929.11 and the
seriousness and recidivism factors listed in R.C. 2929.12, the trial court’s July 5, 2017
judgment expressly states that it considered “the record, oral statements, any victim
impact statement and presentence report prepared, as well as the principles and purposes
of sentencing under R.C. 2929.11, and has balanced the seriousness, recidivism and
other relevant factors under R.C. 2929.12.” (Emphasis added.)
{¶ 15} At the sentencing hearing, the trial court explained at length its rationale for
the sentence it imposed. It is clear from this explanation that the court found it
significant that (1) Hicks’ violent behavior caused serious physical harm to the victim;
(2) Hicks made inconsistent statements to mental health providers about the extent of his
drug use; (3) Hicks committed these offenses in the presence of his young children; (4)
Hicks’ remorse appeared to the court to be disingenuous; (5) the injuries to the victim had
the potential to have been much more severe; and (6) Hicks’ conduct caused physical and
emotional harm to the children. This explanation from the court demonstrates the
applicability of a number of 2929.12(B) factors.
{¶ 16} While Hicks’ PSI and the victim’s statement indicate that Hicks suffers
from mental health and substance abuse issues—factors that the court may take into
account under R.C. 2929.12(C)(4) in considering whether Hicks’ conduct was “less
7.
serious than conduct normally constituting the offense”—the court’s explanation
demonstrates its conclusion that the applicable R.C. 2929.12(B) factors outweighed these
possible grounds for mitigation.
{¶ 17} Because the trial court imposed a sentence within the statutorily-
permissible range, properly imposed post-release control, and considered R.C. 2929.11
and 2929.12—including any mitigating factors—in imposing Hicks’ sentence, we find
that his sentence was not contrary to law under R.C. 2953.08(G)(2)(b). We, therefore,
find the single potential assignment of error identified by assigned counsel to be not well-
taken.
B. Our Review of the Record
{¶ 18} As required under Anders, we have also undertaken our own independent
examination of the record to determine whether any issue of arguable merit is presented
for appeal. We have found none. Accordingly, we find this appeal is without merit and
wholly frivolous.
IV. Conclusion
{¶ 19} Having found no error in the trial court, we affirm the July 5, 2017
judgment of the Lucas County Court of Common Pleas and grant counsel’s motion to
withdraw. Pursuant to App.R. 24, Hicks is ordered to pay the costs of this appeal.
Judgment affirmed.
8.
State of Ohio
v. Emmett Hicks
C.A. No. L-17-1232
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
James D. Jensen, J.
____________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
9.