State v. Allen

[Cite as State v. Allen, 2019-Ohio-1253.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-60
:
v. : Trial Court Case No. 2017-CR-557
:
CLAYTON ALLEN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 5th day of April, 2019.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 West Fourth Street, Suite 250, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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TUCKER, J.
{¶ 1} Clayton Allen appeals from his conviction, on his guilty pleas, of aggravated
trafficking, having weapons while under disability, and illegal conveyance. 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 exist. This review has not revealed any non-frivolous
issues. Accordingly, the trial court’s judgment will be affirmed.
Facts and Procedural History
{¶ 2} Appellant, Clayton Allen, was indicted on five counts as follows: aggravated
trafficking in drugs in violation of R.C. 2925.03(A)(2); aggravated possession of drugs in
violation of R.C. 2925.11(A); aggravated possession of drugs in violation of R.C.
2925.11(A); having weapons while under disability in violation of R.C. 2923.13(A)(3); and
illegal conveyance of drugs of abuse onto the grounds of a correctional facility in violation
of R.C. 2921.36(A)(2). The indictment also included a forfeiture specification. Allen
ultimately pleaded guilty to Count 1 (aggravated trafficking), Count 4 (weapons under
disability), and Count 5 (illegal conveyance), all third degree felonies. Allen additionally
agreed to forfeit the property set forth in the forfeiture specification. The possession
counts were dismissed. The trial court ordered the completion of a presentence
investigation report (PSI), and a sentencing hearing was scheduled.
{¶ 3} The trial court sentenced Allen to 24 months of imprisonment on each count.
The trial court further ordered that Counts 1 and 5 be served concurrently but that Count
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4 be served consecutively, resulting in a 48 month prison term. The trial court, consistent
with the parties’ agreement, ordered the forfeiture of the property included in the forfeiture
specification. This appeal follows. Appellate counsel was appointed to represent Allen.
{¶ 4} Counsel filed an Anders brief indicating he could find no non-frivolous issues
for appellate review. By separate motion, counsel has requested leave to withdraw as
Allen’s counsel. We informed Allen of the filing of the Anders brief and advised him of
his right to file a pro se brief within 60 days of the Anders notice. Allen has not filed a
brief.
Anders Standard
{¶ 5} 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, in fact, “wholly
frivolous.” Anders, 386 U.S. at 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493; Penson v. Ohio, 488
U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). An issue is not frivolous based
upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d
Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one
about which, “on the facts and law involved, no responsible contention can be made that
offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-
Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders
brief and appoint new counsel to represent the defendant.
Anders Review
{¶ 6} Counsel, consistent with his duties under Anders, suggests as possible
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assignments of error that the trial court’s imposition of a consecutive sentence was
contrary to law and that trial counsel rendered ineffective assistance. Counsel
concluded, however, that an argument concerning either issue would be wholly frivolous.
Based upon our independent review, we agree.
{¶ 7} Although there is a presumption favoring concurrent sentences, a trial court
may impose consecutive service 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 reasoning regarding the consecutive
findings. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
Counsel points out that the trial court’s consecutive findings were not as precise as they
might have been. Nonetheless, all the required findings were made. The trial court, as
required by R.C. 2929.14(C)(4), made the necessary initial findings that consecutive
service was necessary to protect the public from future crime or to punish the offender
and that consecutive service was not disproportionate to the seriousness of Allen’s
conduct and the danger he posed to the public. The trial court, as mandated by R.C.
2929.14(C)(4)(c), made the required additional finding that, based upon Allen’s criminal
history, consecutive service was necessary to protect the public from future crime.
These findings were sufficient for the imposition of a consecutive sentence. The trial
court also found, under R.C. 2929.14(C)(4)(a), that Allen committed multiple offenses
while awaiting trial or sentencing, but, as pointed out by counsel, this finding was not
supported by the record. However, exclusion of this finding was not fatal to the
imposition of consecutive service because, as noted, the required R.C. 2929.14(C)(4)
preliminary findings were made and the trial court, as mandated by R.C. 2929.14(C)(4)(c),
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determined that Allen’s criminal history made the imposition of consecutive sentences
necessary to protect the public. Additionally, the court’s findings on this issue were
incorporated into the sentencing entry. Thus, we agree with counsel that any argument
that the R.C. 2929.14(C)(4) consecutive service findings were not adequately made
would be frivolous.
{¶ 8} Also, though not directly raised by counsel, any argument that we could find
by clear and convincing evidence that the record does not support the consecutive service
findings would be without arguable merit. State v. Marcum, 146 Ohio St. 3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 1; see also R.C. 2953.08(G). The record reflects that
Allen admitted to the use of and trafficking in methamphetamine. Further, during the
search of Allen’s home, a number of firearms were discovered. These facts supported
the trial court’s public protection, punishment, proportionality, and seriousness findings.
Allen’s criminal record spanned over 20 years; in addition to the present offenses, he
committed previous felony drug possession offenses and numerous misdemeanor
convictions, which included the violent offenses of assault and menacing. This history
supports the trial court’s criminal history conclusion.
{¶ 9} Counsel also suggested ineffective assistance of counsel as a possible
meritorious appellate argument. The basis for this suggestion was trial counsel’s failure
to file a motion seeking to suppress the drugs and firearms supporting the indicted
charges.
{¶ 10} A defendant’s guilty plea acts as a waiver of all error, including a claim of
ineffective assistance of counsel, “except to the extent that [any error] precluded the
defendant from knowingly, intelligently, and voluntarily entering his * * * guilty plea.”
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State v. Rozell, 2018-Ohio-1722, 111 N.E.3d 861, ¶ 40 (2d Dist.), quoting State v.
Leonard, 2d Dist. Montgomery No. 27411, 2017-Ohio-8421, ¶ 13. Therefore, a
defendant, in order to establish ineffective assistance of counsel within the context of a
guilty plea, must establish that counsel’s advice regarding the guilty plea was outside the
“range of competence demanded of attorneys in criminal cases[,]” and that there was a
reasonable probability “that if he had been adequately advised he would not have pleaded
guilty * * * .” Id. at ¶ 40, quoting State v. Huddleston, 2d Dist. Montgomery No. 20653,
2005-Ohio-4029, ¶ 9. On this record, under this standard, counsel’s suggested claim of
ineffective assistance of counsel would be frivolous.
{¶ 11} In addition, we have reviewed the entire record including the plea and
sentencing transcripts, the plea and sentencing entries, and the PSI. 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 Clark County Common Pleas
Court is affirmed.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Andrew P. Pickering
Brent E. Rambo
Clayton Allen
Hon. Richard J. O’Neill
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