State v. Lucas

2014 Ohio 3857

• Court: Ohio Court of Appeals
• Decided: September 5, 2014
• Docket: OT-13-025, OT-13-026
• Status: Published

Opinion

[Cite as State v. Lucas, 2014-Ohio-3857.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

State of Ohio Court of Appeals Nos. OT-13-025 OT-13-026 Appellee Trial Court Nos. 13 CR 004 12 CR 115

v.

Dustin R. Lucas DECISION AND JUDGMENT

Appellant Decided: September 5, 2014

*****

Kevin J. Baxer, Erie County Prosecuting Attorney, and Andrew M. Bigler, Assistant Prosecuting Attorney, for appellee.

Nancy L. Jennings, for appellant.

***** SINGER, J.

{¶ 1} Appellant, Dustin Lucas, appeals from the September 16, 2013, judgment of

the Ottawa County Court of Common Pleas finding appellant had violated the terms of his community control sanction and reinstating his sentences imposed in Ottawa County

case Nos. 12 CR 115 and 13 CR 004.

{¶ 2} Appellant was convicted and sentenced on March 4, 2013 in each case,

following the entry of guilty pleas. Appellant was sentenced to two 12-month terms of

incarceration to be served consecutively. The sentences were suspended and appellant

was placed on community control for a period of three years. Appellant did not file an

appeal from this judgment.

{¶ 3} On August 8, 2013, a hearing was held on the motion and complaint of the

Adult Probation Department alleging appellant violated the terms of his community

control sanction. The court found appellant had admitted to the charges of violating

curfew and changing his address, accepted his admissions, and found appellant had

violated the terms of his community control. On September 16, 2013, the trial court

reinstated the suspended sentences in both cases. Appellant sought an appeal from this

judgment.

{¶ 4} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant’s court-appointed counsel has filed an

appellate brief and motion to withdraw as counsel. She mailed a copy of the brief and

motion to appellant and informed him that he had a right to file his own brief, but he did

not do so.

2. {¶ 5} Appellant’s counsel states in her motion that she thoroughly reviewed the

record in this case and concluded that the trial court did not commit any error prejudicial

to appellant. However appellant’s counsel has submitted a brief setting forth the

following potential assignments of error:

1. Whether the Trial Court Erred in Accepting Defendant/

Appellant’s Knowing, Intelligent and Voluntary Plea.

2. Whether the Trial Court Erred When it Sentenced the

Defendant/Appellant to a Term of Incarceration Allowable by Law.

{¶ 6} Appellant’s appointed counsel has included arguments which support these

assignments of error, but concludes that they are unsupported by the record and/or by the

law. Therefore, she concludes that an appeal would be frivolous.

{¶ 7} The first issue raised by appellant’s counsel is whether the trial court erred

by accepting appellant’s admission to the community control violation. Appellant’s

counsel asserts that appellant could assert that he did not enter a knowing, voluntary, or

intelligent “guilty plea” to the community control violations under Crim.R. 11. Crim.R.

11, however, does not apply to community control violations. State v. Martin, 6th Dist.

Sandusky No. S-02-012, 2002-Ohio-5202, ¶ 7. Instead, Crim.R. 32.3 applies and its

requirements were met in this case. Therefore, this proposed assignment of error lacks

merit.

3. {¶ 8} Secondly, appellant’s counsel argued that appellant’s sentence was contrary

to law. Upon consideration of the applicable statutes, we find that the sentence imposed

was within the statutory limits, the trial court considered the factors required by law, and

the trial court made the specific findings which permitted the imposition of the sentence.

Therefore, this proposed assignment of error lacks merit.

{¶ 9} Finally, this court has the obligation to fully examine the record in this case

to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87 S.Ct.

1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the trial

court which would justify a reversal of the judgment. Therefore, we find this appeal to be

wholly frivolous. Counsel’s request to withdraw as appellate counsel is found well-taken

and is hereby granted.

{¶ 10} The judgment of the Ottawa County Court of Common Pleas is affirmed.

Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24.

{¶ 11} The clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

4. State of Ohio v. Dustin R. Lucas OT-13-025 OT-13-026

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 Arlene Singer, J. ____________________________ Thomas J. Osowik, 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.

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