State v. Hammond

2013 Ohio 1693

Opinion

[Cite as State v. Hammond, 2013-Ohio-1693.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO

Plaintiff-Appellant

v.

AARON K. HAMMOND, SR.

Defendant-Appellee

Appellate Case No. 2012-CA-0057

Trial Court Case No. 2011-CR-791

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 26th day of April, 2013.

...........

LISA M. FANNIN, Atty. Reg. No. 82337, Assistant Clark County Prosecutor, 50 E. Columbia Street, P.O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

BRETT A. RINEHART, Atty. Reg. No. 81226, 150 N. Limestone Street, Suite 206, Springfield , Ohio 45501 Attorney for Defendant-Appellant

AARON K. HAMMOND, SR., Inmate No.667-788, London Correctional Facility, P.O. Box 740, London, Ohio 43140 2

.............

WELBAUM, J.

{¶ 1} On November 7, 2011, defendant-appellant, Aaron K. Hammond, Sr., was

indicted on five counts of Sexual Battery in violation of R.C. 2907.03(A)(5) and one count of

Unlawful Sexual Conduct with a Minor in violation of R.C. 2907.04(A). Hammond entered

into a plea agreement whereby he pleaded guilty to Unlawful Sexual Conduct with a Minor, a

felony of the fourth degree. Pursuant to the plea agreement, the remaining five counts of Sexual

Battery were dismissed. The trial court ordered a pre-sentence investigation to be conducted,

and after reviewing the pre-sentence investigation report, the trial court sentenced Hammond to

the maximum penalty of 18 months in prison. Hammond then appealed his sentence.

{¶ 2} Hammond’s appointed counsel filed an appellate brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), concluding that there are no

meritorious issues for appeal, and asserting one possible assignment of error. On December 21,

2012, this Court granted Hammond 60 days in which to file a pro se brief assigning any errors for

the Court’s review. Hammond did not file a brief.

{¶ 3} This district previously noted in State v. Marbury, 2d Dist. Montgomery No.

19226, 2003-Ohio-3242, ¶ 7-8, that:

We are charged by Anders to determine whether any issues involving

potentially reversible error that are raised by appellate counsel or by a defendant in

his pro se brief are “wholly frivolous.” * * * If we find that any issue presented or

which an independent analysis reveals is not wholly frivolous, we must appoint

different appellate counsel to represent the defendant.* * *

Anders equates a frivolous appeal with one that presents issues lacking in 3

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 ultimately prevail on that 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. * * *

{¶ 4} Hammond’s sole possible assignment of error is as follows:

The Trial Judge Did Not Consider All Necessary Factors Prior to

Determining the Sentence to the Detriment of Appellant

{¶ 5} Pursuant to R.C. 2929.12(A), when imposing a sentence for a felony, a court

“shall consider the factors set forth in divisions (B) and (C) of this section relating to the

seriousness of the conduct, the factors provided in divisions (D) and (E) of this section relating to

the likelihood of the offender's recidivism, and the factors set forth in division (F) of this section

pertaining to the offender's service in the armed forces of the United States and, in addition, may

consider any other factors that are relevant to achieving those purposes and principles of

sentencing.” R.C. 2929.12(A).

{¶ 6} The record in this case establishes that the trial court reviewed all the required,

applicable factors at Hammond’s disposition hearing. The trial court stated:

In reviewing the factors set forth in the statute for felonies of the fourth

degree, under 2929.12(B), it’s obvious the Defendant’s relationship with the

victim facilitated the offense, Defendant being the victim’s father.

Under 2929.12(C), it does appear he did not expect to cause any physical

harm to persons or property.

As to recidivism factors, under 2929.12(D), the Court finds that the 4

Defendant was under a sanction imposed pursuant to the sentencing statutes of

this state and that at the time of the offense he was under community control

sanction for a prior conviction of burglary. His record does indicate previous

adjudications as a delinquent child and history of prior criminal convictions.

***

As to 2929.12(E), recidivism factors which would indicate recidivsm less

likely, I find none of those present. Disposition Hearing Transcript (Aug. 14,

2012), pp. 8-10.

{¶ 7} The trial court addressed all the required factors set forth in R.C. 2929.12 with

the exception of the factor listed in section (F). This factor states:

The sentencing court shall consider the offender's military service record

and whether the offender has an emotional, mental, or physical condition that is

traceable to the offender's service in the armed forces of the United States and that

was a contributing factor in the offender's commission of the offense or offenses.

R.C. 2929.12(F).

{¶ 8} In this case, the record does not indicate that Hammond served in the military or

that any such service was a contributing factor to Hammond’s offense. The factor set forth in

R.C. 2929.12(F) is therefore inapplicable, and it was unnecessary for the trial court to consider it.

Because the record establishes that the trial court considered all the other factors set forth in

R.C. 2929.12(A), Hammond’s sole possible assignment of error is frivolous and is overruled.

{¶ 9} Pursuant to our responsibilities under Anders, we have conducted an independent

review of the entire record and, having done so, we agree with the appointed counsel that there

are no meritorious issues to present on appeal. Accordingly, the judgment of the trial court is 5

affirmed.

FROELICH and HALL, JJ., concur.

Copies mailed to:

Lisa M. Fannin Brett A. Rinehart Aaron K. Hammond, Sr. Hon. Richard J. O’Neill