State v. Towe

[Cite as State v. Towe, 2023-Ohio-549.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-18
:
v. : Trial Court Case No. 21CR291
:
NATHAN TOWE : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on February 24, 2023
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ANTHONY E. KENDELL, Attorney for Appellee
JOHN C. CUNNINGHAM, Attorney for Appellant
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EPLEY, J.
{¶ 1} Defendant-Appellant Nathan Towe appeals from a judgment of the Miami
County Court of Common Pleas, which continued his community control, imposed 94
days in the Miami County Jail, and ordered him to pay court costs of $443.50. Towe’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), stating he was unable to find any non-frivolous issues for
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appeal. Upon our independent review, we agree with appellate counsel. Accordingly,
the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} On July 6, 2021, Towe was transported from the Miami County Jail to Upper
Valley Medical Center for treatment of an eye infection. There, it was determined that
Towe needed to be transferred to Miami Valley Hospital in Dayton for care by an
ophthalmologist. Towe received a medical furlough for his out-of-county treatment, and
he signed detainer paperwork acknowledging that he was required to return to the jail
upon his release from the hospital.
{¶ 3} In the early morning hours of July 7, 2021, Towe was transported to Miami
Valley Hospital. Shortly after his arrival, he snuck out of his room and left the hospital
against medical advice. Hospital security personnel, who were aware of the detainer
paperwork, searched for Towe without success.
{¶ 4} A couple months later, Towe was indicted on one count of escape, in violation
of R.C. 2921.34(A)(1), a felony of the fifth degree. He subsequently pled guilty to the
charge, and the court sentenced him to two years of community control, beginning on
January 18, 2022. Towe was informed that a violation of community control could result
in a 12-month prison sentence. At that time, Towe had 196 days of jail time credit.
Towe did not appeal his conviction.
{¶ 5} In March 2022, Towe’s probation officer filed a motion/affidavit, informing the
trial court that Towe had violated several conditions of his community control and
requesting a capias for his arrest. Towe was arrested on April 9, 2022. After a hearing
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on April 26, 2022, the trial court continued Towe’s community control but ordered him to
serve 30 days in the local jail.
{¶ 6} In June 2022, Towe again was ordered to appear for a hearing on two alleged
violations of the conditions of his community control: (1) that he failed to report to his
probation officer after being released from the Miami County Jail (Condition 2), and (2)
that he refused to submit to drug testing (Condition 10). At the June 28, 2022 hearing,
the parties informed the court that Towe would admit to a violation of Condition 2 and, in
return, the State would dismiss the alleged violation of Condition 10. Towe agreed that
he wished to waive his right to a hearing on the alleged violations and wanted to admit to
the violation of Condition 2. The trial court accepted Towe’s admission and found that
he had violated Condition 2 of his community control.
{¶ 7} The trial court immediately proceeded to sentencing. After hearing from
counsel, the probation officer, and Towe, the trial court continued Towe’s community
control but ordered him to serve 94 days in the local jail and to pay court costs. The
court calculated that Towe had accrued 271 days of jail time credit. The court further
ordered that he would be terminated unsuccessfully from community control upon his
release from jail. The trial court filed its written judgment entry on July 7, 2022, in which
it clarified that Towe was required to pay $443.50 in court costs.
II. Anders Review
{¶ 8} Upon the filing of an Anders brief, an appellate court must determine, “after
a full examination of all 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,
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109 S.Ct. 346, 102 L.Ed.2d 300 (1988). “An issue is not frivolous merely because the
prosecution can be expected to present a strong argument in reply.” State v. White, 2d
Dist. Montgomery No. 28338, 2020-Ohio-5544, ¶ 14, citing State v. Pullen, 2d Dist.
Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that
presents issues lacking arguable merit, which means that, “on the facts and law involved,
no responsible contention can be made that it offers a basis for reversal.” State v.
Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing Pullen at ¶ 4. If
we find that any issue – whether presented by appellate counsel, presented by the
defendant, or found through an independent analysis – is not wholly frivolous, we must
reject the Anders brief and appoint new appellate counsel to represent the defendant.
White at ¶ 14, citing Marbury at ¶ 7; State v. Almeyda, 2d Dist. Montgomery No. 28727,
2021-Ohio-862, ¶ 3.
{¶ 9} At the outset, we note that the record contains transcripts of Towe’s
arraignment, plea hearing, and original sentencing hearing. Our review, however, is
limited to the proceedings related to the June 2022 notice of violations. Towe did not
appeal from his underlying conviction for escape, and res judicata precludes any claim
that could have been made on direct appeal. See, e.g., State v. Eastman, 2d Dist. Clark
No. 2020-CA-5, 2021-Ohio-392, ¶ 8-9.
{¶ 10} We therefore focus on whether any non-frivolous claims exist concerning
the trial court’s community control violation hearing and the sentence it imposed.
Appellate counsel has not identified any potential claims for our review. As an initial step,
we must consider whether any potential claims are now moot.
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{¶ 11} “The role of courts is to decide adversarial legal cases and to issue
judgments that can be carried into effect.” Cyran v. Cyran, 152 Ohio St.3d 484, 2018-
Ohio-24, 97 N.E.3d 487, ¶ 9, citing Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d
371 (1970); State v. Smith, 2d Dist. Montgomery No. 27981, 2019-Ohio-3592, ¶ 8.
Under the mootness doctrine, American courts will not decide cases where an actual legal
controversy no longer exists between the parties. Id., citing In re A.G., 139 Ohio St.3d
572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. “Issues are moot when they lack practical
significance and, instead, present academic or hypothetical questions.” Dibert v.
Carpenter, 2018-Ohio-1054, 98 N.E.3d 350, ¶ 30 (2d Dist.), citing State ex rel. Ford v.
Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 55.
{¶ 12} A court may consider extrinsic evidence from outside the record to
determine mootness. E.g., State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d
126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8; Townsend v. Antioch Univ., 2d Dist. Greene
No. 2008-CA-103, 2009-Ohio-2552, ¶ 8.
{¶ 13} In this case, Towe admitted to a community control violation and was
sentenced to continued community control with 94 days of local incarceration. The trial
court indicated at sentencing and in its judgment entry that Towe’s community control
would be terminated upon the completion of his jail term. According to the trial court’s
online docket, Towe has now completed his jail term, and the trial court has terminated
his community control. See Sept. 30, 2022 Decision. Consequently, even if the trial
court improperly found that Towe violated his community control and erred in ordering
him to serve 94 days in jail, there is no available remedy. Any claim regarding the
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violation hearing and/or the court’s imposition of a jail sentence is moot. See, e.g., State
v. Bailey, 2d Dist. Montgomery No. 26882, 2016-Ohio-5158, ¶ 12.
{¶ 14} The trial court did not impose a fine, but it required Towe to pay $443.50 in
court costs, pursuant to R.C. 2947.23. Trial courts are required to assess the costs of
prosecution against all convicted defendants, even those who are indigent. R.C.
2947.23(A)(1)(a); State v. Crossley, 2022-Ohio-2599, 194 N.E.3d 424, ¶ 7 (2d Dist.).
Here, the trial court informed Towe at sentencing that he would be required to pay court
costs. Moreover, a trial court does not err when it fails to specify the amount of court
costs at sentencing; the calculation of court costs is a ministerial act. State v. Lux, 2d
Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 49. The record does not contain an
itemization of the costs imposed, and there is nothing in the record to suggest that the
amount ordered in the judgment entry was not authorized by law. On the record before
us, we find no non-frivolous issues related to court costs.
III. Conclusion
{¶ 15} We have conducted an independent review of the record, and we agree
with appellate counsel that there are no non-frivolous issues for appeal. Accordingly, the
trial court’s judgment will be affirmed.
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TUCKER, J. and LEWIS, J., concur.