State v. Horner

2020 Ohio 5530

• Court: Ohio Court of Appeals
• Decided: December 2, 2020
• Docket: 20CA000012
• Status: Published

Opinion

[Cite as State v. Horner, 2020-Ohio-5530.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 20CA000012 WILLIAM E. HORNER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 20CR03-0059

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 2, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. McCONVILLE JAMES S. SWEENEY PROSECUTING ATTORNEY JAMES SWEENEY LAW, LLC SARAH FELDCAMP 285 South Liberty Street ASSISTANT PROSECUTOR Powell, Ohio 43065 117 East High Street, Suite 234 Mount Vernon, Ohio 43050 Knox County, Case No. 20CA000012 2

Wise, John, J.

{¶1} Appellant William E. Horner appeals his sentence from the Knox County

Court of Common Pleas after entering a plea of guilty to one count of Aggravated

Possession of Drugs, a felony in the second degree, in violation of R.C. 2925.11(A).

STANDARD OF REVIEW

{¶2} Appellant Horner’s appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We informed Appellant

that his attorney had filed an Anders brief on his behalf and granted him until October

30, 2020, to file a pro se brief. Appellant has not filed a pro se brief.

{¶3} 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. Anders 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 the 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.

{¶4} The relevant facts leading to this appeal are as follows. Knox County, Case No. 20CA000012 3

FACTS AND PROCEDURAL HISTORY

{¶5} On April 22, 2020, Appellant pled guilty to one count of Aggravated

Possession of Drugs, a felony of the second degree, in violation of R.C. 2925.11(A).

Appellant waived a presentence investigation report, and the trial court proceeded

immediately to sentence Appellant. During the hearing, the trial court stated, “[i]t is

therefore the sentence of the Court that the defendant serve a mandatory indefinite term

of imprisonment of a minimum of two years to a maximum of 3.5 years.” T. at 20. In the

Sentencing Entry, the trial court stated, “[i]t is the sentence of the Court that the

Defendant serve an indefinite term prison term of a mandatory minimum term of

imprisonment of two (2) years and a maximum term of imprisonment of three (3) years

on Count One, pursuant to Ohio Revised Code Section 2929.144.” Sentencing Entry, P.

2.

POTENTIAL ASSIGNMENTS OF ERROR

{¶6} Counsel’s brief suggests one assignment of error as follows:

{¶7} “I. WHETHER THE TRIAL COURT ERRED WHEN SENTENCING THE

APPELLANT AS THERE IS A DISCREPANCY BETWEEN THE SENTENCE STATED

BY THE TRIAL COURT DURING THE SENTENCING HEARING AND THE SENTENCE

IN THE SENTENCING ENTRY.”

I.

{¶8} In his only potential Assignment of Error, Appellant suggests the trial court

may have erred as there is a discrepancy between the sentence stated at the sentencing

hearing and the sentence in the Sentencing Entry. We disagree. Knox County, Case No. 20CA000012 4

{¶9} “A court of record speaks only through its journal, and not by oral

pronouncement. Pettit v. Glenmoor Country Club, Inc., 5th Dist. Stark No. 2012-CA-

00088, 2012-Ohio-5622, ¶17, citing Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d

625 (1953), paragraph one of the syllabus. “A trial court’s oral statements have no legal

force and effect unless and until incorporated into a journalized entry. Schenley at ¶17.

If a journalized order contradicts the trial court’s comments from the bench, the

journalized order controls. Id.

{¶10} In State v. Young, 5th Dist. Fairfield No. 2019 CA 00037, 2020-Ohio-3194,

¶35-38, the trial court, during a sentencing hearing, sentenced the defendant on a

falsification charge and on an obstructing official business charge after stating the

sentences would be merged. However, the Final Judgment Entry only sentenced

defendant on the falsification charge for the correct number of days. Id at ¶39. This Court

held that the trial court’s Judgment Entry controls as defendant was only sentenced on

the falsification charge.

{¶11} In the case sub judice, the trial court noted at the sentencing hearing the

defendant will serve a mandatory minimum term of two years to a maximum of 3.5 years

in prison. However, the Sentencing Entry corrected the maximum amount. It said, “[i]t is

the sentence of the Court that the Defendant serve an indefinite term prison term of a

mandatory minimum term of imprisonment of two (2) years and a maximum term of

imprisonment of three (3) years…”. Sentencing Entry, P. 2.

{¶12} We find no merit in the proposed Assignment of Error, and it is hereby

overruled. Furthermore, after independently reviewing the record, we agree with

appellate counsel’s conclusion that no arguably meritorious claims exist upon which to Knox County, Case No. 20CA000012 5

base an appeal. We therefore find the appeal to be wholly frivolous under Anders, grant

counsel’s request to withdraw, and affirm the judgment of the trial court.

{¶13} For the foregoing reasons, the judgment of the Court of Common Pleas of

Knox County, Ohio, is hereby affirmed.

By: Wise, John, J.

Gwin, P. J., and

Wise, Earle, J., concur.

JWW/br 1201