[Cite as State v. Hayes, 2014-Ohio-2968.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-13-1204
Appellee Trial Court No. CR0201001245
v.
Charles Hayes DECISION AND JUDGMENT
Appellant Decided: July 3, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Mark T. Herr, Assistant Prosecuting Attorney, for appellee.
Brad F. Hubbell, for appellant.
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the February 1, 2013 judgment of the Lucas County
Court of Common Pleas which, after defendant-appellant, Charles Hayes, entered a guilty
plea to a community control violation, sentenced him to ten months of imprisonment to
be served consecutively to the sentence in case No. CR0201202473. {¶ 2} Appellant’s appointed counsel has submitted a request to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Counsel for appellant asserts that after having reviewed the entire record on
appeal and researching case and statutory law, he is unable to find any non-frivolous
issue for appeal. Counsel for appellant has, however, consistent with Anders, set forth
the following potential assignment of error for our review:
Did the trial court err when it ordered that the community control
violation sentence in Case No. 10-CR-1245 be served consecutive to the
sentence imposed in Case No. 12-CR-2473?
{¶ 3} Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th
Dist.1978), set forth the procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue. In Anders, supra, at 744, the
United States Supreme Court held that if counsel, after a conscientious examination of
the case, determines it to be wholly frivolous he should so advise the court and request
permission to withdraw. This request, however, must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. Counsel
must also furnish his client with a copy of the brief and request to withdraw and allow the
client sufficient time to raise any matters that he chooses. Id. Once these requirements
have been satisfied, the appellate court must then conduct a full examination of all the
proceedings held below to determine if the appeal is indeed frivolous. If the appellate
court determines that the appeal is frivolous, it may grant counsel’s request to withdraw
2. and dismiss the appeal without violating constitutional requirements or may proceed to a
decision on the merits if state law so requires. Id.
{¶ 4} In the present case, appointed counsel has satisfied the requirements set forth
in Anders. This court notes further that appellant has not filed a pro se brief or otherwise
responded to counsel’s request to withdraw. Accordingly, this court shall proceed with
an examination of the potential assignment of error set forth by counsel for appellant and
of the entire record below to determine if this appeal lacks merit and is, therefore, wholly
frivolous.
{¶ 5} On April 1, 2010, appellant entered a plea of no contest to one count of
trafficking in marijuana, R.C. 2925.03(A)(2) and (C)(3)(a), a fifth degree felony. On
May 14, 2010, appellant was sentenced to four years of community control with multiple
conditions. Thereafter, following appellant’s admission to the community control
violation, on February 1, 2013, the trial court sentenced him to ten months of
imprisonment to be served consecutive to his prison sentence for attempted murder.
{¶ 6} Appellant’s sole potential assignment of error argues that the court erred by
imposing a consecutive, rather than a concurrent prison sentence. H.B. 86 deleted the
requirement under R.C. 2929.19(B)(2) that a court give its reasons for imposing a
consecutive sentence. However, R.C. 2929.14(C)(4) sets forth the following
requirements for imposing a consecutive sentence:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve
3. the prison terms consecutively if the court finds that the consecutive service
is necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 7} This court has recently clarified that the above findings must be made in the
sentencing entry. See State v. Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437,
¶ 10. In making the findings, the trial court is not required to recite the above statute
4. verbatim. Id., citing State v. Payne, 6th Dist. Lucas Nos. L-13-1024, L-13-1025, 2014-
Ohio-1147, ¶ 13-16.
{¶ 8} In the present case, the trial court’s sentencing entry states: “It is ordered
that defendant serve a term of 10 months in prison to be served consecutively to CR12-
2473.” No explanation was given. Thus, the court failed to make the findings required
under R.C. 2929.14(C)(4). Appellant’s potential assignment of error is well-taken.
{¶ 9} Pursuant to Anders, if any potential error has merit, we are to afford
appellant new counsel and an opportunity to argue the appeal. Upon our own
independent review of the record, we find no other grounds for a meritorious appeal.
However, because the trial court clearly failed to comply with R.C. 2929.14(C), and
appellant’s sentence is contrary to law, we immediately remand the matter to the trial
court for resentencing. See State v. Brown, 6th Dist. Sandusky No. S-06-009, 2006-Ohio-
3985, ¶ 23; State v. Meyer, 6th Dist. Williams No. WM-03-008, 2004-Ohio-5229, ¶ 75.
Appellant’s counsel’s motion to withdraw is denied.
{¶ 10} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is reversed and this case is remanded to the trial court for resentencing.
The trial court is instructed to appoint new counsel to represent appellant. Appellee is
ordered to pay the costs of this appeal pursuant to App.R. 24.
{¶ 11} The clerk is ordered to serve all parties with notice of this decision.
Judgment reversed.
5. State v. Hayes C.A. No. L-13-1204
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
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[Cite as State v. Hayes, 2014-Ohio-2968.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-13-1204
Appellee Trial Court No. CR0201001245
v.
Charles Hayes DECISION AND JUDGMENT
Appellant Decided: July 3, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Mark T. Herr, Assistant Prosecuting Attorney, for appellee.
Brad F. Hubbell, for appellant.
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the February 1, 2013 judgment of the Lucas County
Court of Common Pleas which, after defendant-appellant, Charles Hayes, entered a guilty
plea to a community control violation, sentenced him to ten months of imprisonment to
be served consecutively to the sentence in case No. CR0201202473. {¶ 2} Appellant’s appointed counsel has submitted a request to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Counsel for appellant asserts that after having reviewed the entire record on
appeal and researching case and statutory law, he is unable to find any non-frivolous
issue for appeal. Counsel for appellant has, however, consistent with Anders, set forth
the following potential assignment of error for our review:
Did the trial court err when it ordered that the community control
violation sentence in Case No. 10-CR-1245 be served consecutive to the
sentence imposed in Case No. 12-CR-2473?
{¶ 3} Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th
Dist.1978), set forth the procedure to be followed by appointed counsel who desires to
withdraw for want of a meritorious, appealable issue. In Anders, supra, at 744, the
United States Supreme Court held that if counsel, after a conscientious examination of
the case, determines it to be wholly frivolous he should so advise the court and request
permission to withdraw. This request, however, must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. Counsel
must also furnish his client with a copy of the brief and request to withdraw and allow the
client sufficient time to raise any matters that he chooses. Id. Once these requirements
have been satisfied, the appellate court must then conduct a full examination of all the
proceedings held below to determine if the appeal is indeed frivolous. If the appellate
court determines that the appeal is frivolous, it may grant counsel’s request to withdraw
2. and dismiss the appeal without violating constitutional requirements or may proceed to a
decision on the merits if state law so requires. Id.
{¶ 4} In the present case, appointed counsel has satisfied the requirements set forth
in Anders. This court notes further that appellant has not filed a pro se brief or otherwise
responded to counsel’s request to withdraw. Accordingly, this court shall proceed with
an examination of the potential assignment of error set forth by counsel for appellant and
of the entire record below to determine if this appeal lacks merit and is, therefore, wholly
frivolous.
{¶ 5} On April 1, 2010, appellant entered a plea of no contest to one count of
trafficking in marijuana, R.C. 2925.03(A)(2) and (C)(3)(a), a fifth degree felony. On
May 14, 2010, appellant was sentenced to four years of community control with multiple
conditions. Thereafter, following appellant’s admission to the community control
violation, on February 1, 2013, the trial court sentenced him to ten months of
imprisonment to be served consecutive to his prison sentence for attempted murder.
{¶ 6} Appellant’s sole potential assignment of error argues that the court erred by
imposing a consecutive, rather than a concurrent prison sentence. H.B. 86 deleted the
requirement under R.C. 2929.19(B)(2) that a court give its reasons for imposing a
consecutive sentence. However, R.C. 2929.14(C)(4) sets forth the following
requirements for imposing a consecutive sentence:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to serve
3. the prison terms consecutively if the court finds that the consecutive service
is necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 7} This court has recently clarified that the above findings must be made in the
sentencing entry. See State v. Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437,
¶ 10. In making the findings, the trial court is not required to recite the above statute
4. verbatim. Id., citing State v. Payne, 6th Dist. Lucas Nos. L-13-1024, L-13-1025, 2014-
Ohio-1147, ¶ 13-16.
{¶ 8} In the present case, the trial court’s sentencing entry states: “It is ordered
that defendant serve a term of 10 months in prison to be served consecutively to CR12-
2473.” No explanation was given. Thus, the court failed to make the findings required
under R.C. 2929.14(C)(4). Appellant’s potential assignment of error is well-taken.
{¶ 9} Pursuant to Anders, if any potential error has merit, we are to afford
appellant new counsel and an opportunity to argue the appeal. Upon our own
independent review of the record, we find no other grounds for a meritorious appeal.
However, because the trial court clearly failed to comply with R.C. 2929.14(C), and
appellant’s sentence is contrary to law, we immediately remand the matter to the trial
court for resentencing. See State v. Brown, 6th Dist. Sandusky No. S-06-009, 2006-Ohio-
3985, ¶ 23; State v. Meyer, 6th Dist. Williams No. WM-03-008, 2004-Ohio-5229, ¶ 75.
Appellant’s counsel’s motion to withdraw is denied.
{¶ 10} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is reversed and this case is remanded to the trial court for resentencing.
The trial court is instructed to appoint new counsel to represent appellant. Appellee is
ordered to pay the costs of this appeal pursuant to App.R. 24.
{¶ 11} The clerk is ordered to serve all parties with notice of this decision.
Judgment reversed.
5. State v. Hayes C.A. No. L-13-1204
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.