[Cite as State v. Montgomery, 2017-Ohio-567.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27222 : v. : Trial Court Case No. 2016-CR-455 : MARK MONTGOMERY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 17th day of February, 2017
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant .............
HALL, P.J.
{¶ 1} Mark Montgomery appeals from his conviction and sentence to four years in -2-
prison for the offense of aggravated robbery (deadly weapon) in violation of R.C.
2911.01(A)(1), a first-degree felony. Montgomery’s counsel filed a brief under Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that the appeal
is frivolous. By order filed November 10, 2016, we informed Montgomery that the Anders
brief had been filed and advised him of his right to file his own brief and the time limit for
doing so. Montgomery has not filed a pro se brief, and the time for filing has expired.
The offense and course of proceedings
{¶ 2} The record includes the pre-sentence investigation report, which reveals the
underlying incident that gave rise to Appellant’s conviction. Montgomery and his girlfriend
had been in a relationship for three years, and they were living with her father and her
children in Dayton. On February 6, 2016, Montgomery, his girlfriend, his brother, and his
brother’s girlfriend went to a club in Cincinnati. Upon leaving the club early on February
7th, Montgomery and his girlfriend got into an argument after she would not let him drive
home because she believed he was intoxicated. Montgomery knocked her to the ground
and struck her. The local police were called, but no charges were pursued. The girlfriend
then drove herself back to Dayton. Although Montgomery claimed he had made the
payments on the vehicle, it was titled in his girlfriend’s name and she had acquired it after
it was repossessed from her ex-husband. Montgomery does not have a valid driver’s
license. Montgomery rode back to Dayton with his brother and his brother’s girlfriend.
{¶ 3} When Montgomery’s girlfriend arrived at her father’s house, Montgomery and
his brother were sitting in front. She went inside. Her father allowed Montgomery to enter.
He went upstairs and came back down with a handgun. He knocked her to the floor,
breaking the glass in an interior French door, and demanded the keys to the car. She -3-
refused. He reached into her pocket and tore it open, removing the keys. One of her
children also was present during the altercation. Montgomery threatened to shoot
everyone and took her cell phone from her, after realizing she had called 911, and he left.
A warrant was issued for his arrest.
{¶ 4} Several days later, Montgomery was arrested and the car was recovered.
Montgomery admitted he took the keys out of his girlfriend’s pocket after she refused to
give them to him but stated he only kicked the French door out of frustration. He admitted
he took the cell phone but claimed he picked it up when it fell out of her pocket, and he
indicated he pays the phone bill so it belongs to him. He denied that he owned any real
guns but did have a green and black airsoft handgun. When asked whether that was what
he had in his hand when he demanded the car keys, Montgomery indicated he was done
talking. Detectives also interviewed his brother, his brother’s girlfriend, and the victim’s
father, all of whom advised that Montgomery had a handgun in his possession when he
shoved his girlfriend to the floor.
{¶ 5} On March 8, 2016, Montgomery was indicted for aggravated robbery (deadly
weapon) with an accompanying three-year firearm specification. At a court appearance
on July 5, 2016, he agreed to plead guilty in exchange for dismissal of the firearm
specification. There was no agreement with respect to sentencing. During the plea
hearing, the trial court scrupulously complied with Crim.R. 11. In addition, Montgomery
and his attorney signed a written plea form that included the plea agreement, the rights
he was waiving, the applicable penalties, and post-release control. The court determined
he understood the nature of the offense, the effect of his plea, and that it was made
voluntarily. A presentence investigation report was ordered. -4-
{¶ 6} On August 3, 2016, a sentencing hearing was held. The court indicated it had
considered the presentence investigation, the sentencing memoranda filed by the
defense and the prosecution, the purposes and principles of sentencing, and the
seriousness and recidivism factors of the Revised Code. The court noted that aggravated
robbery is a first-degree felony with a presumption that a prison term is the appropriate
sentence. The court further determined that the presumption of a prison sentence was
not overcome by the circumstances of the case. The court imposed a four-year prison
sentence with five years of mandatory post-release control.
Potential assignments of error
{¶ 7} Although appellate counsel found no merit to the appeal, he has identified
two potential assignments of error for our consideration. The first potential assignment
addresses whether the trial court complied with Crim.R. 11. We have reviewed a
transcript of the plea and sentencing and the documents filed of record. As indicated, the
trial court engaged in a complete Crim.R. 11 colloquy with the Appellant. There is
absolutely nothing in the record from which one could fashion an argument that the plea
was somehow deficient. We agree with counsel that an argument that the trial court failed
to fully comply with Crim.R. 11 lacks arguable merit and is frivolous.
{¶ 8} Counsel’s second potential assignment of error addresses whether the trial
court sentenced the Appellant within statutory guidelines. Aggravated robbery with a
deadly weapon under R.C. 2911.01(A)(1), the charge to which the Appellant pled, is a
first-degree felony with a penalty range of any number of years from three to eleven in
prison. R.C. 2929.13(D)(1) provides that when sentencing for a first or second degree -5-
felony “it is presumed that a prison sentence is necessary in order to comply with the
purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides that
“[n]otwithstanding the presumption * * * the sentencing court may impose a community
control sanction,” (emphasis added), but only if the sentencing court finds that a
community control sanction would (1) adequately punish the offender and protect the
public from future crime, and (2) not demean the seriousness of the offense because the
statutory less serious sentencing factors outweigh the more serious factors. The trial court
did not make those findings, which we conclude are discretionary. Even if it had
substantial evidence to support such findings, and had made them, two districts have
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[Cite as State v. Montgomery, 2017-Ohio-567.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27222 : v. : Trial Court Case No. 2016-CR-455 : MARK MONTGOMERY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 17th day of February, 2017
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant .............
HALL, P.J.
{¶ 1} Mark Montgomery appeals from his conviction and sentence to four years in -2-
prison for the offense of aggravated robbery (deadly weapon) in violation of R.C.
2911.01(A)(1), a first-degree felony. Montgomery’s counsel filed a brief under Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that the appeal
is frivolous. By order filed November 10, 2016, we informed Montgomery that the Anders
brief had been filed and advised him of his right to file his own brief and the time limit for
doing so. Montgomery has not filed a pro se brief, and the time for filing has expired.
The offense and course of proceedings
{¶ 2} The record includes the pre-sentence investigation report, which reveals the
underlying incident that gave rise to Appellant’s conviction. Montgomery and his girlfriend
had been in a relationship for three years, and they were living with her father and her
children in Dayton. On February 6, 2016, Montgomery, his girlfriend, his brother, and his
brother’s girlfriend went to a club in Cincinnati. Upon leaving the club early on February
7th, Montgomery and his girlfriend got into an argument after she would not let him drive
home because she believed he was intoxicated. Montgomery knocked her to the ground
and struck her. The local police were called, but no charges were pursued. The girlfriend
then drove herself back to Dayton. Although Montgomery claimed he had made the
payments on the vehicle, it was titled in his girlfriend’s name and she had acquired it after
it was repossessed from her ex-husband. Montgomery does not have a valid driver’s
license. Montgomery rode back to Dayton with his brother and his brother’s girlfriend.
{¶ 3} When Montgomery’s girlfriend arrived at her father’s house, Montgomery and
his brother were sitting in front. She went inside. Her father allowed Montgomery to enter.
He went upstairs and came back down with a handgun. He knocked her to the floor,
breaking the glass in an interior French door, and demanded the keys to the car. She -3-
refused. He reached into her pocket and tore it open, removing the keys. One of her
children also was present during the altercation. Montgomery threatened to shoot
everyone and took her cell phone from her, after realizing she had called 911, and he left.
A warrant was issued for his arrest.
{¶ 4} Several days later, Montgomery was arrested and the car was recovered.
Montgomery admitted he took the keys out of his girlfriend’s pocket after she refused to
give them to him but stated he only kicked the French door out of frustration. He admitted
he took the cell phone but claimed he picked it up when it fell out of her pocket, and he
indicated he pays the phone bill so it belongs to him. He denied that he owned any real
guns but did have a green and black airsoft handgun. When asked whether that was what
he had in his hand when he demanded the car keys, Montgomery indicated he was done
talking. Detectives also interviewed his brother, his brother’s girlfriend, and the victim’s
father, all of whom advised that Montgomery had a handgun in his possession when he
shoved his girlfriend to the floor.
{¶ 5} On March 8, 2016, Montgomery was indicted for aggravated robbery (deadly
weapon) with an accompanying three-year firearm specification. At a court appearance
on July 5, 2016, he agreed to plead guilty in exchange for dismissal of the firearm
specification. There was no agreement with respect to sentencing. During the plea
hearing, the trial court scrupulously complied with Crim.R. 11. In addition, Montgomery
and his attorney signed a written plea form that included the plea agreement, the rights
he was waiving, the applicable penalties, and post-release control. The court determined
he understood the nature of the offense, the effect of his plea, and that it was made
voluntarily. A presentence investigation report was ordered. -4-
{¶ 6} On August 3, 2016, a sentencing hearing was held. The court indicated it had
considered the presentence investigation, the sentencing memoranda filed by the
defense and the prosecution, the purposes and principles of sentencing, and the
seriousness and recidivism factors of the Revised Code. The court noted that aggravated
robbery is a first-degree felony with a presumption that a prison term is the appropriate
sentence. The court further determined that the presumption of a prison sentence was
not overcome by the circumstances of the case. The court imposed a four-year prison
sentence with five years of mandatory post-release control.
Potential assignments of error
{¶ 7} Although appellate counsel found no merit to the appeal, he has identified
two potential assignments of error for our consideration. The first potential assignment
addresses whether the trial court complied with Crim.R. 11. We have reviewed a
transcript of the plea and sentencing and the documents filed of record. As indicated, the
trial court engaged in a complete Crim.R. 11 colloquy with the Appellant. There is
absolutely nothing in the record from which one could fashion an argument that the plea
was somehow deficient. We agree with counsel that an argument that the trial court failed
to fully comply with Crim.R. 11 lacks arguable merit and is frivolous.
{¶ 8} Counsel’s second potential assignment of error addresses whether the trial
court sentenced the Appellant within statutory guidelines. Aggravated robbery with a
deadly weapon under R.C. 2911.01(A)(1), the charge to which the Appellant pled, is a
first-degree felony with a penalty range of any number of years from three to eleven in
prison. R.C. 2929.13(D)(1) provides that when sentencing for a first or second degree -5-
felony “it is presumed that a prison sentence is necessary in order to comply with the
purposes and principles of sentencing.” Nonetheless, R.C. 2929.13(D)(2) provides that
“[n]otwithstanding the presumption * * * the sentencing court may impose a community
control sanction,” (emphasis added), but only if the sentencing court finds that a
community control sanction would (1) adequately punish the offender and protect the
public from future crime, and (2) not demean the seriousness of the offense because the
statutory less serious sentencing factors outweigh the more serious factors. The trial court
did not make those findings, which we conclude are discretionary. Even if it had
substantial evidence to support such findings, and had made them, two districts have
determined that “[a]s the plain statutory language indicates, the sentencing court is under
no obligation to impose community control sanctions simply because the offender meets
the eligibility requirements.” State v. Davis, 8th Dist. Cuyahoga No.81170, 2002-Ohio-
7068, ¶ 25; State v. Redman, 3d Dist. Allen No. 1-15-54, 2016-Ohio-860, ¶ 51, quoting
Davis.
{¶ 9} Ultimately, we would be unable to consider the mechanics of the imposed
sentence because a trial court has full discretion to impose any sentence within the
authorized range. State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶
62. Our review also would be limited. “[A]n appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the record
does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 1. We can conceive of no reasonable, potentially meritorious argument in
the circumstances of this case that would support the Appellant’s cause. Accordingly, the -6-
second potential assignment is frivolous.
Anders review
{¶ 10} We have conducted a thorough and complete examination of all the
proceedings to decide whether this appeal is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), citing Anders at 744. We have reviewed
the docket, the various filings, the written transcript of the plea and sentencing hearings,
the presentence investigation, and the sentencing entry. We have found no non-frivolous
issues for review. Accordingly, the judgment of the Montgomery County Common Pleas
Court is affirmed.
.............
DONOVAN, J., and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck Andrew T. French John S. Pinard Mark Montgomery Hon. Steven K. Dankof