State v. Bell

2025 Ohio 1328

• Court: Ohio Court of Appeals
• Decided: April 14, 2025
• Docket: 24AP0009
• Status: Published

Opinion

[Cite as State v. Bell, 2025-Ohio-1328.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. -vs- : : KODY BELL, : Case No. 24AP0009 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No. 23-CR-0044

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 14, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK HOWDYSHELL BRIAN W. BENBOW Assistant Prosecuting Attorney Benbow Law Offices LLC Morgan County, Ohio 803 Taylor Street 109 E. Main Street Zanesville, Ohio 43701 McConnelsville, Ohio 43756 Baldwin, P.J.

{¶1} Appellant Kody Bell appeals the sentence imposed by the trial court

following his plea of guilty to seven counts of pandering obscenity involving a minor.

Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On August 16, 2023, the appellant was indicted on seven counts of

Pandering Obscenity Involving a Minor in violation of R.C. 2907.321(A)(1) and (C),

felonies of the second degree. An arrest warrant was issued.

{¶3} On October 27, 2023, the appellant requested and was granted

appointment of counsel. He was arraigned on November 28, 2023, at which time he

pleaded not guilty. In addition, the appellant’s counsel filed a Request for Notice of

Intention to Use Evidence, a Request for Bill of Particulars, a Demand for Discovery,

Defendant’s Disclosure of Evidence, and a Motion to Preserve Evidence.

{¶4} The parties engaged in plea negotiations, and on February 29, 2024, the

trial court issued a Journal Entry stating that “[d]efense counsel advised that a plea

arrangement has been reached in this matter.”

{¶5} The change of plea hearing proceeded on April 4, 2024, at which time the

parties signed a Plea of Guilty, Waiver of Rights, and Notification form documenting the

plea agreement in which the appellant withdrew his guilty plea and pleaded guilty to all

seven counts of Pandering Obscenity Involving a Minor. The form set forth the

constitutional rights the appellant agreed to waive, the potential prison sentence, the

potential fines, and the applicable post-release control obligations. The form was signed

by the appellant, as well as his counsel. In addition, the trial court engaged in the requisite Crim.R. 11 colloquy before accepting the appellant’s guilty plea. Further, the trial court

issued a Sex Offender Registration Advisement and Entry finding the appellant a Tier III

Sex Offender and documenting the fact that the court advised the appellant regarding the

legal obligations of said designation. Finally, the trial court issued a Guilty Plea Entry on

April 4, 2024, documenting the change of plea proceedings, including the parties’ jointly

recommended minimum prison sentence of six years on each count to be served

concurrently and a maximum of nine years, as well as the parties’ stipulation that the

appellant be designated a Tier III sex offender registrant. The trial court ordered the

preparation of a presentence investigation (PSI), and scheduled the matter for

sentencing.

{¶6} The sentencing hearing proceeded on May 29, 2024, at which the trial court

sentenced the appellant pursuant to the parties’ joint recommendation; that is, a minimum

term of six years in prison on each of the seven counts, to be served concurrently, with a

maximum of nine years.

{¶7} The appellant filed a timely appeal, and his counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), in which he sets forth the following two potential

assignments of error:

{¶8} “I. THE COURT ERRED IN IMPOSING A SENTENCE THAT WAS

GROSSLY DISPROPORTIONATE TO APPELLANT'S CONDUCT AND NOT IN

ACCORDANCE WITH STATUTES GOVERNING FELONY SENTENCING AND WHICH

SENTENCE DEMONSTRATES A UNCESSARY [SIC] BURDEN ON STATE

RESOURCES.” {¶9} “II. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND V.

WASHINGTON (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052.”

STANDARD OF REVIEW

{¶10} The United States Supreme Court held in Anders that if, after conscientious

examination of the record, an appellant’s counsel concludes the case is wholly frivolous,

then he or she should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany the request with a brief identifying anything in the record that

could arguably support the 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 appellant’s counsel has satisfied 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 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.

{¶11} Attorney Brian W. Benbow, appellant’s appellate counsel, filed an Anders

brief on October 11, 2024, informing this Court that he had conscientiously examined the

case, reviewed the entire record, researched all potential issues, and determined that

there were no meritorious issues for review which would support an appeal. Attorney

Benbow requested that this Court make an independent review of the record to determine

whether there are any additional issues that would support an appeal. He served a copy of the Appellant’s Anders Brief upon the appellant. Attorney Benbow subsequently filed a

Motion to Withdraw, a copy of which he also served upon the appellant.

{¶12} This Court informed the appellant in an October 24, 2024, Judgment Entry

that the Court received notice he had been informed by his attorney that an Anders brief

had been filed on his behalf and provided notice that supplied the appellant with a copy.

In addition, the appellant was granted sixty days from the date of the entry to file a pro se

brief in support of his appeal. The appellant did not file a pro se brief.

{¶13} The record establishes that the appellant’s counsel has satisfied the

requirements set forth in Anders. Accordingly, we review the record in this case and

determine whether any arguably meritorious issues exist, “… keeping in mind that,

‘Anders equates a frivolous appeal with one that presents issues lacking in arguable

merit. An issue does not lack arguable merit merely because the prosecution can be

expected to present a strong argument in reply or because it is uncertain whether a

defendant will prevail on the issue on appeal. ‘An issue lacks arguable merit if, on the

facts and law involved, no responsible contention can be made that it offers a basis for

reversal.’ State v. Pullen, 2002-Ohio-6788, ¶ 4 (2nd Dist.); State v. Marbury, 2003-Ohio-

3242, ¶ 7-8 (2nd Dist.); State v. Chessman, 2005-Ohio-2511, ¶ 16-17 (2nd Dist.).” State

v. Moore, 2009-Ohio-1416, ¶4 (2nd Dist.).’” State v. Reynolds, 2024-Ohio-1956, ¶ 10 (5th

Dist.).

ANALYSIS

{¶14} The first potential assignment of error proffered by appellate counsel is that

the trial court erred in imposing a sentence that was grossly disproportionate to the

appellant's conduct, not in accordance with statutes governing felony sentencing, and which demonstrates an unnecessary burden on State resources. However, counsel’s

evaluation of this potential assignment of error as not meritorious or persuasive is correct.

{¶15} The appellant entered into a plea agreement with the appellee in which he

agreed to plead guilty to seven counts of Pandering Obscenity Involving a Minor, and the

parties jointly recommended a minimum prison sentence of six years on each of the seven

counts, to be served concurrently, up to a maximum of nine years. The trial court

accepted the appellant’s guilty plea and imposed the precise sentence that had been

jointly recommended by the parties. R.C. 2953.08(D)(1) provides that “[a] sentence

imposed upon a defendant is not subject to review under this section if the sentence is

authorized by law, has been recommended jointly by the defendant and the prosecution

in the case, and is imposed by a sentencing judge.” R.C. 2929.14(A) and 2929.144

provide for an indefinite prison term of two to twelve years for a second degree felony;

the appellant received six to nine years, which is within statutory parameters and

therefore authorized by law. Furthermore, trial court imposed the very sentence that the

parties had recommended. As such, the appellant’s sentence is not subject to review,

and appellate counsel is correct in that the first potential assignment of error is without

merit.

{¶16} The second potential assignment of error proffered by appellate counsel is

that the appellant’s trial counsel was ineffective. Attorney Benbow’s evaluation of this

potential assignment of error as not meritorious or persuasive is also correct.

{¶17} The standard of review for claims of ineffective assistance of counsel was

set forth in the seminal case of Strickland v. Washington, 466 U.S. 668 (1984), and was

discussed by this court in Mansfield v. Studer, 2012-Ohio-4840 (5th Dist.): A claim of ineffective assistance of counsel requires a two-prong

analysis. The first inquiry is whether counsel's performance fell below an

objective standard of reasonable representation involving a substantial

violation of any of defense counsel's essential duties to appellant. The

second prong is whether the appellant was prejudiced by counsel's

ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838

(1993); Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.

2052(1984); State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373(1989).

In order to warrant a finding that trial counsel was ineffective, the

petitioner must meet both the deficient performance and prejudice prongs

of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct.

1411, 1419, 173 L.Ed.2d 251(2009).

To show deficient performance, appellant must establish that

“counsel's representation fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at

2064. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the defendant by

the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104 S.Ct.

at 2064. Counsel also has a duty to bring to bear such skill and knowledge

as will render the trial a reliable adversarial testing process.

Strickland v. Washington 466 U.S. at 688, 104 S.Ct. 2052 at 2065. Thus, a court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel's challenged conduct on the

facts of the particular case, viewed as of the time of counsel's

conduct. A convicted defendant making a claim of ineffective

assistance must identify the acts or omissions of counsel that are

alleged not to have been the result of reasonable professional

judgment. The court must then determine whether, in light of all the

circumstances, the identified acts or omissions were outside the

wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel's

function, as elaborated in prevailing professional norms, is to make

the adversarial testing process work in the particular case. At the

same time, the court should recognize that counsel is strongly

presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment.

Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.

In light of “the variety of circumstances faced by defense counsel

[and] the range of legitimate decisions regarding how best to represent a

criminal defendant,” the performance inquiry necessarily turns on “whether

counsel's assistance was reasonable considering all the circumstances.”

Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064. At all

points, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at

2064.

Studer, supra, at ¶¶ 58-61. Thus, in order to prevail on an ineffective assistance of counsel

argument the appellant must establish two prongs: first, that his trial counsel’s

performance fell below an objective standard of reasonable representation involving a

substantial violation of an essential duty to the appellant; and second, that the appellant

was prejudiced by such the alleged ineffectiveness.

{¶18} The record herein does not support an argument that the appellant’s trial

counsel was ineffective. There is no evidence that the performance of trial counsel fell

below an objective standard of reasonable representation. Even if it had, there is no

evidence that the appellant was prejudiced by any such alleged ineffectiveness, and

appellate counsel correctly submits that the second potential assignment of error is also

without merit.

{¶19} The appellant entered into a negotiated plea agreement with the appellee

in which he agreed to plead guilty to the charges set forth in the indictment, and the parties

jointly recommended a sentence. The trial court imposed the sentence that was jointly

recommended by the parties, and which was within statutory sentencing parameters.

Accordingly, this matter is not subject to appeal. Furthermore, the record does not support

an argument that the appellant's trial counsel was ineffective. CONCLUSION

{¶20} Based upon the foregoing, and after independently reviewing the record,

we agree with appellate counsel’s conclusion that no non-frivolous claims exist that would

justify remand or review of the appellant’s conviction or sentence. We find the appeal to

be wholly frivolous under Anders. Attorney Benbow’s motion to withdraw as counsel for

the appellant is hereby granted, and the judgment of the Morgan County Court of

Common Pleas is hereby affirmed.

By: Baldwin, P.J.

Hoffman, J. and

King, J. concur.