State v. Groves

2015 Ohio 4757

• Court: Ohio Court of Appeals
• Decided: November 17, 2015
• Docket: 15-COA-017
• Status: Published

Opinion

[Cite as State v. Groves, 2015-Ohio-4757.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 15-COA-017 MICHAEL S. GROVES

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Common Pleas Court, Case No. 12-CRI-030

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 17, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL MATTHEW J. MALONE Ashland County Prosecutor Law Offfices of Matthew J. Malone, LLC EMILY M. BATES 10 East Main Street Assistant Prosecuting Attorney Ashland, Ohio 44805 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 15-COA-017 2

Hoffman, P.J.

{¶1} Appellant, Michael S. Groves, was indicted on three counts of Importuning

in violation of R.C. 2707.07(B), all felonies of the fifth degree and one count of

Disseminating Matter Harmful to Juveniles in violation of R.C. 2907.31(A)(1), a

misdemeanor of the first degree.

{¶2} Pursuant to a plea agreement, Appellant plead guilty to count one

(Importuning, a felony of the fifth degree) and count four (Disseminating Matter Harmful

to Juveniles, a misdemeanor of the first degree). The State agreed to dismiss counts

two and three.

{¶3} Appellant received a sentence of 180 days of local incarceration on the

Importuning count as part of a community control sanction. Further, Appellant received

180 days of jail on the Disseminating Matter Harmful to Juveniles count, however, 90 of

those days were suspended.

{¶4} Eventually, Appellant was charged with violating the terms of his

community control. Appellant agreed with three of the four violations including failure to

report to his supervising officer, a curfew violation and possession of a cell phone.

Following Appellant’s stipulation to the community control violations, the trial court

imposed a twelve month prison sentence giving Appellant credit for time served.

{¶5} 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

Assignments of Error. Appellant has not raised any additional assignments of error pro

se. Ashland County, Case No. 15-COA-017 3

{¶6} 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.

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

(1967), 386 U.S. 738.

POTENTIAL ASSIGNMENT OF ERROR

I.

{¶8} “WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON

APPELLANT FOR VIOLATING HIS COMMUNITY CONTROL WAS CLEARLY AND

CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF ITS DISCRETION.”

{¶9} We now will address the merits of Appellant’s potential Assignment of

Error. Ashland County, Case No. 15-COA-017 4

{¶10} In her first potential Assignment of Error, Appellant challenges the

sentence imposed by the trial court.

{¶11} The Ohio Supreme Court has established a two-step analysis for

reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The

first step is to “examine the sentencing court's compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's

decision to be reviewed under an abuse-of-discretion standard. Id.

{¶12} We find the sentence imposed was not clearly and convincingly contrary

to law. The sentence in this case was imposed within the statutory range provided in

R.C. 2929.14.

{¶13} Having reviewed the sentence, the presentence investigation report, and

the sentencing factors found in R.C. 2929.12 we also do not find the trial court abused

its discretion in imposing the sentence in this case.

{¶14} Appellant’s proposed assignment of error is overruled. Ashland County, Case No. 15-COA-017 5

{¶15} 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 Ashland County Court of

Common Pleas.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur