State v. Ford

2016 Ohio 7495

• Court: Ohio Court of Appeals
• Decided: October 24, 2016
• Docket: 16 CA 04
• Status: Published

Opinion

[Cite as State v. Ford, 2016-Ohio-7495.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 16 CA 04 ROBERT T. FORD, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 24, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL G. PADDEN LINDSEY K. DONEHUE Guernsey County Prosecuting Attorney 120 Southgate Parkway 139 West 8th Street P.O. Box 464 Cambridge, Ohio 43725 Cambridge, Ohio 43725 Guernsey County, Case No. 16 CA 04 2

Hoffman, P.J.

{¶1} Defendant-appellant Robert T. Ford, Jr. appeals his conviction and

sentence entered by the Guernsey County Court of Common Pleas. Appellant was

indicted on two counts of Felonious Assault with gun specifications, one count of Having

Weapons while under Disability, and two counts of Intimidation of a Victim in a Criminal

Case.

{¶2} Appellant entered a plea of not guilty by reason of insanity. Following an

evaluation, the trial court found Appellant to be competent and further found Appellant

was “not able to maintain a plea of not guilty by reason of insanity.”

{¶3} Thereafter, pursuant to a plea agreement, Appellant entered a no contest

plea to one count of Felonious Assault. As part of the plea agreement, the State agreed

to dismiss the remainder of the counts. The State sought a sentence of 7 years, however,

Appellant was able to argue a lesser sentence was appropriate. The parties agreed the

sentence would be at the discretion of the trial court following a presentence investigation.

Further, the parties agreed to the restitution amount to be imposed as part of the

sentence.

{¶4} Following the presentence investigation, the trial court sentenced Appellant

to a term of 7 years in prison. Appellant filed a timely notice of appeal.

{¶5} Appellate 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 the within appeal is wholly frivolous. Counsel for Appellant has raised one

potential assignment of error asking this Court to determine whether the trial court erred Guernsey County, Case No. 16 CA 04 3

in the sentence imposed upon Appellant. Appellant was given an opportunity to file a

brief raising additional assignments of error, but none was filed.

I.

{¶6} “THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT.”

{¶7} 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 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.

{¶8} Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738.

{¶9} We now will address the merits of Appellant's potential Assignment of Error.

{¶10} Revised Code Section 2953.08, Subsection (G)(2) sets forth the appellate

court's standard of review for sentences as follows: Guernsey County, Case No. 16 CA 04 4

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division 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.

{¶11} Appellant’s sentence is not one which was imposed pursuant to the sections

cited in subsection (a) above. Therefore, the only review this Court is permitted to make

is whether Appellant’s sentence was clearly and convincingly contrary to law. The

sentence imposed by the trial court was within the statutory sentencing range. We have

reviewed the record and do not find the sentence was clearly and convincingly contrary

to law.

{¶12} Appellant’s proposed assignment of error is overruled. Guernsey County, Case No. 16 CA 04 5

{¶13} The judgment of the Guernsey County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur