[Cite as State v. Parker, 2019-Ohio-2466.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28119 : v. : Trial Court Case Nos. 2018-CR-2217 : 2018-CR-44 CURTIS PARKER : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :
...........
OPINION
Rendered on the 21st day of June, 2019.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
HALL, J. -2-
{¶ 1} Curtis Parker appeals from his convictions and consecutive sentences in two
trial court cases that were sentenced at the same time. In Montgomery C.P. No. 2018-
CR-0044, Parker was indicted on February 1, 2018 for one count of conveying drugs into
a detention facility, a third-degree felony. In that case, Parker pled guilty to an attempt to
commit the indicted charge, which made the offense and the conviction a felony of the
fourth-degree. By entry of April 25, 2018, he was sentenced to community control
sanctions including a term of local incarceration. On June 6, 2018, while incarcerated,
Parker left his work assignment at a local food pantry and failed to return to the detention
facility. He was indicted for escape, a third-degree felony (because he was under
detention for a fourth-degree felony, R.C. 2921.34(C)(2)(b)), in Montgomery County C.P.
No. 2018-CR-2217 on June 22, 2018. On July 17, 2018 he entered a plea of guilty as
charged in the new case and admitted to a community control sanction violation in the
older case. On August 24, Parker was sentenced to nine months in prison on each of the
cases, to be served consecutively.
{¶ 2} Parker’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. By order filed February 6, 2019, we notified Parker of the
Anders filing and gave him an opportunity to submit a pro se brief, but he did not do so.
I. Analysis
{¶ 3} Counsel identifies, as potential issues, possible arguments regarding the
Parker’s sentencing, the consecutive nature of the sentences, and whether due process
was followed regarding the community control sanction revocation. However, counsel
concludes none of these have arguable merit. -3-
{¶ 4} Initially we note that when Parker entered a guilty plea in Case No. 2018-CR-
0044 he was sentenced to community control. He did not appeal the initial conviction and
the imposition of community control. Arguments concerning that plea and initial
sentencing should have been raised in an appeal at that time and cannot be raised now.
State v. Turner, 2d Dist. Montgomery No. 27350, 2017-Ohio-4101, ¶ 8. In addition,
Parker’s community control included a term that he would “refrain from violation of any
law.” Notice of CCS Revocation, Doc. #29.
{¶ 5} On July 17, 2018, in conjunction with his guilty plea to the escape charge in
Case No. 2018-CR-2217, Parker admitted that he violated his supervision by walking
away from confinement at the Secure Transitional Offender Program (STOP) as indicated
in the notice of CCS revocation hearing. Nothing in the record indicates that Parker’s plea
to the escape charge or the admission to the community control violation was anything
other than knowing, intelligent, and voluntary. The trial court fully complied with Crim.R.
11 in taking the plea. There is simply nothing in the record to support an issue with
arguable merit about the guilty plea or admission of the violation.
{¶ 6} Turning to the sentencing, in Case No. 2018-CR-0044, the trial court had
reserved an alternate sentence of “a prison term of 18 months” for a violation of any of
the terms of community control. Termination Entry, Doc. #18. At the plea hearing, the
court also advised Parker, and he acknowledged he understood, that a prison term for
escape would be required to be served consecutively to any other term of incarceration.
R.C. 2929.14(C)(2). After the July 17, 2018 plea and admission, the trial court ordered a
presentence investigation.
{¶ 7} In the interim, Parker’s counsel filed a Motion to Withdraw as counsel of -4-
record citing a “breakdown in the Attorney-Client relationship.” Doc. #20. That motion
apparently was granted, and new counsel promptly was appointed. On August 8, 2018,
new counsel filed a “Motion to Withdraw Plea,” asserting that prior counsel had been
ineffective in negotiating his plea. Doc. #24. By entry of August 10, 2018, that motion was
set for hearing on August 24, 2018. However, after pretrial conferences in chambers on
August 24, 2018, the court stated on the record that it had indicated “what the intended
sentence was going to be, upon then coming into the court, after learning what the
sentence was going to be, Mr. Parker is now, to my understanding, wants to withdraw his
motion [to] withdraw his plea based on that.” Transcript, August 24, 2018, p. 3. After about
a half hour recess the case was recalled and counsel and Parker both stated they wanted
to withdraw the August 8, 2018 motion. The trial court carefully addressed the issue
directly with Parker, who voluntarily indicated he wanted to withdraw the motion and
proceed with sentencing. The trial court then proceeded to sentencing. The court referred
to the presentence investigation and indicated it had considered the purposes and
principles of sentencing in R.C. 2921.11 and the seriousness and recidivism factors in
2921.12 and that the escape offense occurred while Parker was under supervision. The
court then sentenced Parker to nine months of imprisonment for each offense, to be
served consecutively, as required by R.C. 2929.14(C)(2). The court properly imposed
non-mandatory post-release control of up to three years.
{¶ 8} We agree with counsel that an appeal of Parker’s sentence would be
frivolous. The sentences were both well within the statutory range for the offenses.
Parker’s record and the circumstances of the two offenses abundantly support the
sentences, and the record does not clearly and convincingly fail to support the sentences. -5-
R.C. 2929.14(C)(2) requires a sentence for escape to be served consecutively. The
ordinary findings for imposing consecutive sentences found in R.C. 2929.14(C)(4) are not
required when consecutive sentencing is mandated. See, e.g., State v. Holiman, 9th Dist.
Summit Nos. 27105 & 27106, 2014-Ohio-1925, ¶ 6.
{¶ 9} We find nothing in the record to support an argument of a denial of due
process in the processing of the community control revocation. The Notice of CCS
Revocation, Doc. #29, avers that Parker violated rule number one when he was arrested
for escape as a result of walking away from STOP confinement. He knowingly and
voluntarily admitted to this violation in open court. His nine-month sentence for that
violation was less than the 18-month potential alternate sentence about which he was
informed at his initial sentencing.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Parker, 2019-Ohio-2466.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28119 : v. : Trial Court Case Nos. 2018-CR-2217 : 2018-CR-44 CURTIS PARKER : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :
...........
OPINION
Rendered on the 21st day of June, 2019.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
HALL, J. -2-
{¶ 1} Curtis Parker appeals from his convictions and consecutive sentences in two
trial court cases that were sentenced at the same time. In Montgomery C.P. No. 2018-
CR-0044, Parker was indicted on February 1, 2018 for one count of conveying drugs into
a detention facility, a third-degree felony. In that case, Parker pled guilty to an attempt to
commit the indicted charge, which made the offense and the conviction a felony of the
fourth-degree. By entry of April 25, 2018, he was sentenced to community control
sanctions including a term of local incarceration. On June 6, 2018, while incarcerated,
Parker left his work assignment at a local food pantry and failed to return to the detention
facility. He was indicted for escape, a third-degree felony (because he was under
detention for a fourth-degree felony, R.C. 2921.34(C)(2)(b)), in Montgomery County C.P.
No. 2018-CR-2217 on June 22, 2018. On July 17, 2018 he entered a plea of guilty as
charged in the new case and admitted to a community control sanction violation in the
older case. On August 24, Parker was sentenced to nine months in prison on each of the
cases, to be served consecutively.
{¶ 2} Parker’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. By order filed February 6, 2019, we notified Parker of the
Anders filing and gave him an opportunity to submit a pro se brief, but he did not do so.
I. Analysis
{¶ 3} Counsel identifies, as potential issues, possible arguments regarding the
Parker’s sentencing, the consecutive nature of the sentences, and whether due process
was followed regarding the community control sanction revocation. However, counsel
concludes none of these have arguable merit. -3-
{¶ 4} Initially we note that when Parker entered a guilty plea in Case No. 2018-CR-
0044 he was sentenced to community control. He did not appeal the initial conviction and
the imposition of community control. Arguments concerning that plea and initial
sentencing should have been raised in an appeal at that time and cannot be raised now.
State v. Turner, 2d Dist. Montgomery No. 27350, 2017-Ohio-4101, ¶ 8. In addition,
Parker’s community control included a term that he would “refrain from violation of any
law.” Notice of CCS Revocation, Doc. #29.
{¶ 5} On July 17, 2018, in conjunction with his guilty plea to the escape charge in
Case No. 2018-CR-2217, Parker admitted that he violated his supervision by walking
away from confinement at the Secure Transitional Offender Program (STOP) as indicated
in the notice of CCS revocation hearing. Nothing in the record indicates that Parker’s plea
to the escape charge or the admission to the community control violation was anything
other than knowing, intelligent, and voluntary. The trial court fully complied with Crim.R.
11 in taking the plea. There is simply nothing in the record to support an issue with
arguable merit about the guilty plea or admission of the violation.
{¶ 6} Turning to the sentencing, in Case No. 2018-CR-0044, the trial court had
reserved an alternate sentence of “a prison term of 18 months” for a violation of any of
the terms of community control. Termination Entry, Doc. #18. At the plea hearing, the
court also advised Parker, and he acknowledged he understood, that a prison term for
escape would be required to be served consecutively to any other term of incarceration.
R.C. 2929.14(C)(2). After the July 17, 2018 plea and admission, the trial court ordered a
presentence investigation.
{¶ 7} In the interim, Parker’s counsel filed a Motion to Withdraw as counsel of -4-
record citing a “breakdown in the Attorney-Client relationship.” Doc. #20. That motion
apparently was granted, and new counsel promptly was appointed. On August 8, 2018,
new counsel filed a “Motion to Withdraw Plea,” asserting that prior counsel had been
ineffective in negotiating his plea. Doc. #24. By entry of August 10, 2018, that motion was
set for hearing on August 24, 2018. However, after pretrial conferences in chambers on
August 24, 2018, the court stated on the record that it had indicated “what the intended
sentence was going to be, upon then coming into the court, after learning what the
sentence was going to be, Mr. Parker is now, to my understanding, wants to withdraw his
motion [to] withdraw his plea based on that.” Transcript, August 24, 2018, p. 3. After about
a half hour recess the case was recalled and counsel and Parker both stated they wanted
to withdraw the August 8, 2018 motion. The trial court carefully addressed the issue
directly with Parker, who voluntarily indicated he wanted to withdraw the motion and
proceed with sentencing. The trial court then proceeded to sentencing. The court referred
to the presentence investigation and indicated it had considered the purposes and
principles of sentencing in R.C. 2921.11 and the seriousness and recidivism factors in
2921.12 and that the escape offense occurred while Parker was under supervision. The
court then sentenced Parker to nine months of imprisonment for each offense, to be
served consecutively, as required by R.C. 2929.14(C)(2). The court properly imposed
non-mandatory post-release control of up to three years.
{¶ 8} We agree with counsel that an appeal of Parker’s sentence would be
frivolous. The sentences were both well within the statutory range for the offenses.
Parker’s record and the circumstances of the two offenses abundantly support the
sentences, and the record does not clearly and convincingly fail to support the sentences. -5-
R.C. 2929.14(C)(2) requires a sentence for escape to be served consecutively. The
ordinary findings for imposing consecutive sentences found in R.C. 2929.14(C)(4) are not
required when consecutive sentencing is mandated. See, e.g., State v. Holiman, 9th Dist.
Summit Nos. 27105 & 27106, 2014-Ohio-1925, ¶ 6.
{¶ 9} We find nothing in the record to support an argument of a denial of due
process in the processing of the community control revocation. The Notice of CCS
Revocation, Doc. #29, avers that Parker violated rule number one when he was arrested
for escape as a result of walking away from STOP confinement. He knowingly and
voluntarily admitted to this violation in open court. His nine-month sentence for that
violation was less than the 18-month potential alternate sentence about which he was
informed at his initial sentencing. An argument that there was some denial of due process
has no arguable merit.
{¶ 10} In addition, in accordance with Anders, we independently and carefully have
examined the record for potential assignments of error and have found no non-frivolous
issues for our review.
{¶ 11} The judgment of the Montgomery County Common Pleas Court is affirmed.
FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Andrew T. French Sean Brinkman Hon. Gerald Parker