State v. Lawson

2022 Ohio 2893

• Court: Ohio Court of Appeals
• Decided: August 19, 2022
• Docket: 29424
• Status: Published

Opinion

[Cite as State v. Lawson, 2022-Ohio-2893.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29424 : v. : Trial Court Case Nos. 2021-CR-3442 : & 2021-CR-2860 NICKOLAS S. LAWSON : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

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OPINION

Rendered on the 19th day of Springboro, 2022.

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant

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EPLEY, J. -2-

{¶ 1} Nickolas S. Lawson appeals from the imposition of new community control

sanctions after he was previously convicted of aggravated possession of drugs, a fifth-

degree felony, obstructing official business, a second-degree misdemeanor, and

domestic violence, a fourth-degree misdemeanor. His appellate counsel filed a brief under

the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

stating he was unable to find any non-frivolous issues for appeal. Upon our independent

review, we agree with counsel’s assessment. For the reasons that follow, the trial court’s

judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} Lawson was charged in Montgomery C.P. No. 2021-CR-2860 with one count

of domestic violence, a fourth-degree felony, failure to comply with an order or signal of

a police officer, a first-degree misdemeanor, and resisting arrest, a second-degree

misdemeanor. He was later charged in Montgomery C.P. No. 2021-CR-3442 with a single

count of aggravated possession of drugs, a fifth-degree felony.

{¶ 3} As to Case No. 2021-CR-2860, the original charges were dismissed, and on

October 28, 2021, Lawson pled guilty by way of bill of information to obstructing official

business, a second-degree misdemeanor, and domestic violence, a fourth-degree

misdemeanor. He was sentenced to community control for a period of no longer than five

years. On January 6, 2022, Lawson pled guilty to aggravated possession of drugs in Case

No. 2021-CR-3442, sentenced to community control, and ordered to serve 30 days of

local incarceration.

{¶ 4} Evidently, Lawson did not comply with the terms of community control, and -3-

on March 3, 2022, he was brought before the court in both cases for community control

violations. He stated that he did not want to be assessed for drug and alcohol treatment

and instead asked for additional jail time. The court obliged, ordered an additional 90

days, and announced that Lawson’s community control would be unsuccessfully

terminated following the completion of the jail sentence.

{¶ 5} Lawson appealed, appellate counsel was appointed and, after reviewing the

record, counsel filed an Anders brief asserting that he could find no arguably meritorious

issues to argue. We informed Lawson that he had 60 days to file a pro se brief. He did

not file his own brief.

II. Anders Review

{¶ 6} Upon the filing of an Anders brief, an appellate court must determine, “after

a full examination of all the proceedings,” whether the appeal is “wholly frivolous.”

Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988). “An issue is not frivolous merely because the

prosecution can be expected to present a strong argument in reply.” State v. White, 2d

Dist. Montgomery No. 28338, 2020-Ohio-5544, ¶ 14, citing State v. Pullen, 2d Dist.

Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that

presents issues lacking arguable merit, which means that, “on the facts and law involved,

no responsible contention can be made that it offers a basis for reversal.” State v.

Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing Pullen at ¶ 4. If we

find that any issue – whether presented by appellate counsel, presented by the defendant,

or found through an independent analysis – is not wholly frivolous, we must reject the -4-

Anders brief and appoint new appellate counsel to represent the defendant. White at ¶ 14,

citing Marbury at ¶ 7; State v. Almeyda, 2d Dist. Montgomery No. 28727, 2021-Ohio-862,

¶ 3.

{¶ 7} Lawson appeals, not from his initial conviction but from the imposition of new

or additional community control sanctions handed down by the court in March 2022.

Because of this limited focus, we will address the potential assignment of error raised by

appellate counsel: the trial erred by sentencing Lawson to jail time for violating the terms

of his community control.

{¶ 8} According to R.C. 2929.15(B)(1)(b), after a violation of felony community

control sanctions, a trial court may impose a more restrictive sanction, including but not

limited to a new term in a community-based correctional facility, halfway house, or jail

pursuant to R.C.2929.16(A)(6). If the offender violates misdemeanor community control

sanctions, the sentencing court has the authority to impose a longer time under the same

community control sanctions, a more restrictive sanction, or a combination of community

control sanctions, including a jail term. R.C. 2929.25(D)(2)(a)-(c).

{¶ 9} Here, the trial court intended to have Lawson screened for inpatient

substance abuse treatment, but he refused and instead asked for jail time. Consequently,

the court continued him on community control in both cases and added an additional 90

days of local incarceration, noting that his community control would be unsuccessfully

terminated at the completion of his jail term. The actions taken by the trial court were in

accordance with both R.C. 2929.15(B)(1) and R.C. 2929.25(D)(2), and thus, we find no

arguable error in Lawson’s jail sentence. -5-

{¶ 10} Even if there had been an error with Lawson’s jail sentence, we would find

that issue to be moot. “The role of courts is to decide adversarial legal cases and to issue

judgments that can be carried into effect.” Cyran v. Cyran, 152 Ohio St.3d 484, 2018-

Ohio-24, 97 N.E.3d 487, ¶ 9, citing Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d

371 (1970); State v. Smith, 2d Dist. Montgomery No. 27981, 2019-Ohio-3592, ¶ 8. Under

the mootness doctrine, American courts will not decide cases where an actual legal

controversy no longer exists between the parties. Id., citing In re A.G., 139 Ohio St.3d

572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. “Issues are moot when they lack practical

significance and, instead, present academic or hypothetical questions.” Dibert v.

Carpenter, 2018-Ohio-1054, 98 N.E.3d 350, ¶ 30 (2d Dist.), citing State ex rel. Ford v.

Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 55. In this case,

Lawson has served the entirety of his jail time, and on June 26, 2022, the court terminated

his community control. There is no longer a legal controversy related to whether Lawson

violated his community control sanctions and the trial court’s additional sanction, and

therefore, this appeal is moot.

III. Conclusion

{¶ 11} We have reviewed the entire record and have found no potentially

meritorious appellate issues. Having found no non-frivolous issues, appellate counsel is

permitted to withdraw, and the judgment of the trial court will be affirmed.

DONOVAN, J. and LEWIS, J., concur. -6-

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Robert Alan Brenner Nickolas S. Lawson Hon. Mary E. Montgomery