State v. Lawless

2013 Ohio 1236

Opinion

[Cite as State v. Lawless, 2013-Ohio-1236.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25424

v. : T.C. NO. 11CR4162

BRANDON A. LAWLESS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 29th day of March , 2013.

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MICHAEL C. THOMPSON, Atty. Reg. No. 0041420, 5 N. Williams Street, Wright-Dunbar Business Village, Dayton, Ohio 45402 Attorney for Defendant-Appellant

BRANDON A. LAWLESS, #A668780, London Correctional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant

PER CURIAM: [Cite as State v. Lawless, 2013-Ohio-1236.] {¶ 1} Appointed counsel for defendant-appellant Brandon Lawless submitted an

appellate brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493

(1967) on October 18, 2012, alleging that no arguably meritorious issues exist for appeal.

After a thorough review of the record, this Court agrees that the trial court’s proceedings

were proper, and we affirm the trial court’s judgment.

{¶ 2} Lawless was charged with one count of possession of cocaine (27 grams but

less than 100 grams), a felony of the first degree in violation of R.C. § 2925.11. Lawless

was arrested on November 28, 2011, released, and then re-arrested on February 7, 2012.

From February 7, until his hearing he was subject to electronic home monitoring, except he

was allowed to go to his grandmother’s funeral on April 2. He pled guilty to the charge on

August 29, 2012, and was sentenced on September 27, 2012, to three years of imprisonment,

five years post-release control, and his driver’s license was suspended for three and a half

years.

{¶ 3} Lawless filed a motion for jail time credit on September 13, 2012, which

could not be calculated at the time. During sentencing the trial court noted that jail time

credit does not accrue for electronic home detention.

{¶ 4} Further, Lawless filed a motion to suppress evidence on February 29, 2012,

however, due to an agreed sentence of three years, the motion was orally withdrawn at the

hearing.

{¶ 5} We notified Lawless of his appellate counsel’s representations and afforded

him ample time to file a pro se brief. None has been received. This matter is now before

us for our independent review of the record.

{¶ 6} Lawless’ appellate counsel has identified two possible issues for appeal 3

addressed below.

{¶ 7} THE TRIAL COURT ERRED BY DENYING THE APPELLANT’S

MOTION TO CREDIT HIM FOR TIME SERVED WHILE ON ELECTRONIC HOME

DETENTION

{¶ 8} This court ruled previously on this issue in State v. Holt, 2d Dist.

Montgomery No. 18035, 2000 WL 569930 (May 12, 2000). In that case we compared

language from R.C. § 2967.191 (relating to jail-time credit) with previous R.C. §

2929.23(A)(4), which is similar to current R.C. § 2929.01(P) that relates to the definition

of house arrest. Our Court decided that while the root word “confine” is used in both

statutes, in R.C. § 2929.23 it was implied that the definition of house arrest only applied to

post-conviction confinement and therefore was inapplicable to the pre-conviction electronic

home detention program. Lawless was not subject to electronic home monitoring after his

conviction and therefore he is not entitled to jail-time credit. Thus, his argument is wholly

frivolous.

{¶ 9} THE TRIAL COURT ERRED WHEN IT DISAPPROVED SHOCK

INCARCERATION AND INTENSIVE PROGRAM PRISON AT SENTENCING, BY NOT

STATING SPECIFIC PARTICULARIZED REASONS FOR ITS DISAPPROVAL

{¶ 10} R.C. § 5120.032 states that for a felony of the first degree these programs

are not available. Lawless was charged with a first degree felony and is therefore not

eligible to participate in either program.

{¶ 11} 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 4

counsel that there are no arguably meritorious issues to present on appeal.

{¶ 12} Accordingly, the judgment appealed from is affirmed.

FAIN, P.J., DONOVAN, J., and WELBAUM, J., concur.

Copies mailed to:

Carley J. Ingram Michael C. Thompson Brandon A. Lawless Hon. Mary L. Wiseman