State v. Osley

[Cite as State v. Osley, 2018-Ohio-1958.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1117
Appellee Trial Court No. CR0201602940
v.
Devantee Osley DECISION AND JUDGMENT
Appellant Decided: May 18, 2018
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} This is an Anders appeal. Appellant, Devantee Osley, appeals the judgment
of the Lucas County Court of Common Pleas, convicting him of one count of involuntary
manslaughter in violation of R.C. 2903.04(A) and (C), a felony of the first degree, along
with a firearm specification under R.C. 2941.145. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On October 20, 2016, the Lucas County Grand Jury indicted appellant on
one count of murder in violation of R.C. 2903.02(A), and, in the alternative, one count of
murder in violation of R.C. 2903.02(B), both with firearm specifications under R.C.
2941.145. The charges were based on an incident wherein appellant agreed to meet and
fight the victim. After the parties arrived, appellant shot the victim three times, killing
him.
{¶ 3} Appellant entered initial pleas of not guilty to the charges. On April 3, 2017,
a change of plea hearing was held at which appellant pleaded guilty, pursuant to North
Carolina v. Alford, to the lesser included offense of involuntary manslaughter with a
firearm specification. In exchange, the state agreed to dismiss the second count and
firearm specification. Notably, the state indicated that it only entered into the plea
agreement because although there were numerous individuals who witnessed appellant
shoot and kill the victim, the state was unable to compel the witnesses to testify. After a
thorough Crim.R. 11 colloquy, the trial court accepted appellant’s plea and found him
guilty.
{¶ 4} The matter was continued for sentencing on April 28, 2017. At the
sentencing hearing, the trial court heard statements in mitigation from defense counsel.
Specifically, defense counsel indicated that it was not appellant’s intention to cause the
death of the victim. In addition, defense counsel noted that appellant has a learning
disability, and that his prior record is limited to four misdemeanor convictions and no
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felony convictions. The trial court also considered a statement from the state, as well as
numerous letters and a victim impact statement given by the victim’s younger brother.
The trial court then stated that it had considered the record, oral statements, victim impact
statement, and presentence investigation report, as well as the principles and purposes of
sentencing and the seriousness and recidivism factors, and sentenced appellant to ten
years in prison on the count of involuntary manslaughter, with a mandatory additional
three consecutive years for the firearm specification, for a total prison sentence of 13
years. The trial court also ordered appellant to pay $8,317.01 in restitution to the victim’s
family for funeral expenses.
II. Anders Requirements
{¶ 5} Appellant timely appealed his judgment of conviction. Subsequently,
appointed counsel for appellant filed a brief and requested leave to withdraw pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under
Anders, 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.
Id. at 744. This request, however, must be accompanied by a brief identifying anything
in the record that could arguably support the appeal. Id. Counsel must also furnish the
client with a copy of the brief and request to withdraw and allow the client sufficient time
to raise additional matters. Id. Once these requirements have been satisfied, the
appellate court must then conduct a full examination of the proceedings held below to
determine if the appeal is indeed frivolous. If the appellate court determines that the
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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.III. Potential Assignment of Error
{¶ 6} In his Anders brief, counsel has assigned the following potential error for our
review:
I. Appellant’s sentence is contrary to law and should be vacated due
to the trial court’s failure to comply with R.C. 2929.11 and R.C. 2929.12.
{¶ 7} Appellant has not filed a pro se brief or otherwise raised any additional
matters.
IV. Analysis
{¶ 8} We review a felony sentence under the two-pronged approach set forth in
R.C. 2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-
425, ¶ 11. R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce,
modify, or vacate and remand a disputed sentence if it clearly and convincingly finds
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.
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{¶ 9} Here, the findings under R.C. 2953.08(G)(2)(a) are not at issue. Thus, we
must determine if the sentence is otherwise contrary to law. In Tammerine, we
recognized that State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
still can provide guidance for determining whether a sentence is clearly and convincingly
contrary to law. Tammerine at ¶ 15. The Ohio Supreme Court in Kalish held that where
the trial court expressly stated that it considered the purposes and principles of sentencing
in R.C. 2929.11 as well as the factors listed in R.C. 2929.12, properly applied postrelease
control, and sentenced the defendant within the statutorily permissible range, the sentence
was not clearly and convincingly contrary to law. Kalish at ¶ 18.
{¶ 10} Here, appellate counsel suggests that appellant’s sentence is contrary to law
because the trial court’s imposition of a near-maximum sentence did not take into
account any of the mitigating factors, such as his learning disability or lack of criminal
record. Further, he posits that the trial court’s sentence did not “punish the offender
using the minimum sanctions” under R.C. 2929.11(A).
{¶ 11} However, “a sentencing court is not required to use any specific language
or make specific findings to demonstrate that it considered the applicable sentencing
criteria.” State v. Neal, 6th Dist. Lucas No. L-16-1267, 2017-Ohio-8923, ¶ 17, citing
State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Moreover, “the
individual decisionmaker has the discretion to determine the weight to assign a particular
statutory factor.” Arnett at 215. Thus, because the trial court expressly stated that it
considered the principles and purposes of sentencing in R.C. 2929.11, and the seriousness
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and recidivism factors in R.C. 2929.12, we hold that appellant’s sentence is not clearly
and convincingly contrary to law.
{¶ 12} Accordingly, we find the potential assignment of error to be without merit.
V. Conclusion
{¶ 13} We have conducted an independent review of the record, as required by
Anders, and find no issue of arguable merit for appeal. Therefore, counsel’s motion to
withdraw is hereby granted.
{¶ 14} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
{¶ 15} The clerk is ordered to serve all parties with notice of this decision.
Judgment 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.
_______________________________
Thomas J. Osowik, 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/.
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