State v. Mann

[Cite as State v. Mann, 2013-Ohio-2133.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
LANCE W. MANN : Case No. 2012CA0018
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from The Court of Common
Pleas, Case No. 11-CR-0091
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 22, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
NO APPEARANCE FREDERICK A. SEALOVER
45 N. Fourth Street
P. O. Box 2910
Zanesville, OH 43702-2910
Coshocton County, Case No. 2012CA0018 2
Farmer, J.
{¶1} Appellant, Lance W. Mann, appeals his conviction and sentence from the
Coshocton County Court of Common Pleas. Appellant was convicted of five counts of
breaking and entering, in violation of R.C. 2911.13(A) and one count of breaking and
entering in violation of R.C. 2911.13(B). All counts were felonies of the fifth degree.
{¶2} Appellant entered guilty pleas to these counts as part of a plea agreement
wherein other counts from his indictment were dismissed. Further, as part of the plea
agreement, the State agreed to recommend a sentence of ten months with all
sentences to be served concurrently. The trial court honored the agreement and
sentenced Appellant to an aggregate term of ten months. At the time of sentencing, the
trial court advised Appellant he should appeal his sentence because Appellant was not
granted community control. The trial court indicated it believed the law was unsettled as
to whether someone in Appellant’s position could receive a prison sentence for a felony
of the fifth degree. A timely notice of appeal was filed.
{¶3} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
Coshocton County, Case No. 2012CA0018 3
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
{¶4} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth one proposed
assignment of error. Appellant has not filed a pro se brief raising any additional
assignments of error. For the reasons which follow, we affirm the judgment of the trial
court:
I.
{¶5} In his only potential assignment of error, Appellant argues the trial court
erred in failing to impose a community control sanction for a felony of the fifth degree as
required by R.C. 2929.13(B)(1)(a).
{¶6} R.C. 2929.131 governs sentencing guidelines for various specific offenses
and degrees of offenses and provides in relevant part,
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if
an offender is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence, the court shall sentence the
offender to a community control sanction of at least one year's duration if
all of the following apply:
1
We look to the version of R.C. 2929.13 which was in effect at the time of Appellant’s sentencing. We note R.C.
2929.13 was amended effective March 22, 2013. Under either version, Appellant would not be entitled to a
presumption of community control due to his prior felony convictions. The result in this case would be the same
under either version of the statute.
Coshocton County, Case No. 2012CA0018 4
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense or to an offense of violence that is a
misdemeanor and that the offender committed within two years prior to the
offense for which sentence is being imposed.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation
and correction pursuant to division (B)(1)(c) of this section, the
department, within the forty-five-day period specified in that division,
provided the court with the names of, contact information for, and program
details of one or more community control sanctions of at least one year's
duration that are available for persons sentenced by the court.
{¶7} The record reflects that Appellant admitted at the sentencing hearing that
he has past felony convictions. Accordingly, the presumption in favor of community
control sanctions does not apply to Appellant. R.C. 2929.13(B)(1)(a)(i).
{¶8} It appears the trial court believed an argument existed as to whether the
prior felony conviction had to include a prior prison sentence in order to negate the
community control presumption. The statute does not require a prior prison sentence to
avoid the presumption of community control. Rather, the statute requires only a prior
felony conviction.
{¶9} Appellant’s proposed assignment of error is overruled.
Coshocton County, Case No. 2012CA0018 5
{¶10} For these reasons, after independently reviewing the record, we agree
with counsel's conclusion that no arguably meritorious claims exist upon which to base
an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant
counsel's request to withdraw, and affirm the judgment of the Coshocton County Court
of Common Pleas.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_s/ Sheila G. Farmer______________
s/ William B. Hoffman_____________
s/ John W. Wise_________________
JUDGES
SGF/as 506
[Cite as State v. Mann, 2013-Ohio-2133.]
IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
LANCE W. MANN :
:
Defendant - Appellant : CASE NO. 2012CA0018
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed. Costs
to appellant.
_s/ Sheila G. Farmer______________
s/ William B. Hoffman_____________
s/ John W. Wise_________________
JUDGES