State v. Kerr

2018 Ohio 4882

• Court: Ohio Court of Appeals
• Decided: December 7, 2018
• Docket: 2018-CA-8
• Status: Published

Opinion

[Cite as State v. Kerr, 2018-Ohio-4882.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-8 : v. : Trial Court Case No. 2016-CR-35 : WILLIAM ANTHONY KERR : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 7th day of December, 2018.

KEVIN TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor’s Office, Appellate Division, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

FRANK MATTHEW BATZ, Atty. Reg. No. 0093817, 126 N. Philadelphia Street, Dayton, Ohio 45403 Attorney for Defendant-Appellant

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HALL, J.

{¶ 1} William Anthony Kerr appeals from his conviction following a guilty plea to

one count of heroin possession, a fifth-degree felony.

{¶ 2} Kerr’s appointed 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), asserting the absence of

non-frivolous issues for review. We notified Kerr of the Anders filing and gave him an

opportunity to submit a pro se brief, but he did not do so.

{¶ 3} The record reflects that Kerr was charged with heroin possession and other

drug-related offenses. The charges stemmed from the execution of a search warrant at a

house where Kerr and others were found in possession of drugs. Prior to trial, the State

dismissed all charges against Kerr other than heroin possession. Shortly after a jury trial

commenced, Kerr elected to plead guilty to that remaining charge. In exchange for the

plea, the State agreed to recommend the preparation of a presentence investigation (PSI)

report and imposition of non-residential community control sanctions. The trial court

accepted the plea at the conclusion of a change-of-plea hearing. At sentencing, the trial

court imposed three years of community control, but it included a requirement that Kerr

complete a residential drug-treatment program. It also ordered his payment of court costs

and imposed a fine. The trial court journalized its sentence in a February 23, 2018,

judgment entry. This appeal followed.

{¶ 4} In his Anders brief, Kerr’s appointed appellate counsel raises four potential

assignments of error but concludes that they lack arguable merit. They concern (1)

whether Kerr knowingly, intelligently, and voluntarily entered his guilty plea, (2) whether

his sentence was imposed in accordance with law, (3) whether he received proper notice -3-

of revocation of his community control, 1 and (4) whether he received ineffective

assistance of counsel in connection with the plea agreement.

{¶ 5} Upon review, we concur in counsel’s assessment that the foregoing issues

are frivolous. The transcript of Kerr’s plea hearing reflects compliance with Crim.R. 11,

and we see no arguable issue with respect to the knowing, intelligent, and voluntary

nature of his guilty plea. We also see no arguable basis for challenging Kerr’s sentence.

Although the prosecutor recommended non-residential community control sanctions, the

trial court explained why it disagreed and why it found a residential program necessary.

(February 23, 2018 Sentencing Tr. at 13-15). Its reasons included Kerr’s prior violation of

bond by smoking marijuana, his two prior prison terms, his high risk-assessment score,

his lack of a GED or any job skills, and his need for substance-abuse and mental-health

counseling. In imposing its sentence, the trial court noted that it had considered the

statutory principles and purposes of sentencing as well as the seriousness and recidivism

factors. The trial court also properly imposed post-release control, court costs, and a fine,

and it advised Kerr about those things.

{¶ 6} As for the trial court’s subsequent revocation of community control and

imposition of a prison sentence—which occurred nearly two months after Kerr filed his

notice of appeal—that issue is not properly before us. The present appeal is from only the

trial court’s February 23, 2018 judgment entry of conviction and sentence. (Doc. #48).

Although Kerr has supplemented the record with transcripts of the revocation

1 We note that the trial court revoked community control well after the filing of the notice of appeal in this case, and it imposed a 12-month prison sentence at the request of Kerr, who expressed unwillingness to comply with the requirements of a drug-treatment program. -4-

proceedings, those proceedings never were made part of the present appeal and we

cannot consider them.

{¶ 7} The last issue raised by appointed appellate counsel is whether Kerr received

ineffective assistance of counsel in the trial court. We see no arguable basis for such a

claim with regard to the plea agreement or otherwise. Defense counsel helped obtain the

dismissal of three charges against Kerr and the State’s recommendation of non-

residential community control sanctions in exchange for a guilty plea to one fifth-degree

felony. During the plea hearing, Kerr testified that counsel had provided him with

discovery materials, had communicated with him about the case, and had given him

sufficient information to make an informed plea. Kerr expressed confidence in his attorney

and stated that his attorney had done everything he asked. On the record before us, any

argument that trial counsel provided prejudicially deficient representation would be

frivolous.

{¶ 8} Finally, in accordance with Anders, we independently have examined the

record for potential assignments of error and have found no non-frivolous issues for our

review. Accordingly, we hereby sustain appointed appellate counsel’s motion to withdraw

from further representation.

{¶ 9} The judgment of the Champaign County Common Pleas Court is affirmed.

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DONOVAN, J. and FROELICH, J., concur.

Copies sent to:

Kevin Talebi Frank Matthew Batz William Anthony Kerr Hon. Nick A. Selvaggio