State v. Sexton

2011 Ohio 3867

• Court: Ohio Court of Appeals
• Decided: August 5, 2011
• Docket: 2010 CA 19
• Status: Published

Opinion

[Cite as State v. Sexton, 2011-Ohio-3867.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010 CA 19

v. : T.C. NO. 10CR31

AARON ANDREW SEXTON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 5th day of August , 2011.

NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Champaign County Prosecutor, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, 733 Liberty Tower, 120 W. Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

AARON ANDREW SEXTON, #629335, Madison Correctional Institute, P. O. Box 740, London, Ohio 43140 Defendant-Appellant

DONOVAN, J.

{¶ 1} Appointed counsel for defendant-appellant Aaron Andrew Sexton submitted 2

an appellate brief under Anders v. California (1967), 386 U.S. 738, 87 S. Ct. 1396. 18

L.Ed.2d 493, alleging he found no meritorious issues 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} On March 4, 2010, Sexton was indicted on four counts of Trafficking in

Marihuana in violation of O.R.C. 2925.03(A)(1)(C)(3)(a), felonies of fifth degree. At his

arraignment on March 11, 2010, Sexton pled not guilty. On April 12, 2010, Sexton entered

a plea of Guilty on two counts of Trafficking in Marihuana in violation of O.R.C.

2925.03(A)(1)(C)(3)(a). On June 2, 2010, Sexton was sentenced to twelve months in prison

and a $250 fine on each count, with the terms of incarceration to run concurrent.

{¶ 3} Sexton filed a timely notice of appeal with this Court on July 1, 2010. On

December 28, 2010, appointed counsel representing Sexton submitted an Anders brief,

finding no arguably meritorious issues for appeal. There was no brief filed by the State of

Ohio. On May 4, 2011, this Court informed Sexton that his counsel filed an Anders brief

and informed him of the significance of an Anders brief. This Court advised Sexton of his

right to file a pro se brief assigning any errors for review by this Court within sixty days of

May 4, 2011. Sexton has not filed anything with this Court.

{¶ 4} Although arguing that there were no meritorious claims to raise on Sexton’s

behalf, his counsel found one potential assignment of error, to wit: the Appellant’s

concurrent twelve-month sentences were so harsh and arbitrary as to constitute an abuse of

discretion by the trial court. Upon review, we agree with appellate counsel that this

potential assignment of error has no arguable merit. 3

{¶ 5} Under State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, “trial courts

‘have full discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or more

than the minimum sentences.’ ” Id. at 25 (internal citations omitted). However, the

appellate court must ensure that the trial court correctly followed all applicable rules and

statutes when imposing the sentence. Id. If the trial court has done so, then the review of

the imposition of sentencing is subject only to an abuse of discretion standard. Id. at 26. A

determination that the trial court abused its discretion is “more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Id. at 27 (internal citations omitted).

{¶ 6} In this case, the trial court strictly adhered to the requirement of Crim. R.

11(C)(2) when accepting Sexton’s plea of guilty. The transcript of the plea hearing

demonstrates that Sexton’s plea was made voluntarily, and with an understanding of the

nature of the charges against him and the maximum penalty that could be imposed. Sexton

was also informed of the effects of his plea of guilty and Sexton demonstrated that he

understood these effects, and the fact that the court could have proceeded to judgment and

sentencing at that time. Sexton also acknowledged an understanding that by entering a plea

of guilty he had given up certain constitutional rights such as the right to a jury trial, the right

to confront witnesses, and the right to require the state to prove his guilt beyond a reasonable

doubt. Because of the negotiated plea involved in this case, the court also stated the

underlying agreement upon which the plea was based on the record, as required under Crim.

R. 11(F). 4

{¶ 7} Having determined that the court complied with all applicable rules and

statutes in accepting the guilty plea and sentencing Sexton, we now turn to whether the trial

court abused its discretion in its sentence. The trial court found Sexton to have an extensive

criminal history. Sexton had four prior DUIs or OVIs, stemming from a significant

substance abuse problem. At the time, Sexton had two pending cases in Clark County that

also dealt with trafficking in marijuana. Sexton also had a pending case in Champaign

County Municipal Court on charges of OVI, driving under non-compliance, suspension,

driving under habitual alcohol suspension, failure of reinstatement, and driving under a

twelve point suspension. The trial court found that Sexton was not amenable to community

control with residential treatment, and that community control without residential treatment

was not appropriate in Sexton’s case. The maximum penalty available in this case was

confinement in state prison up to twenty-four months and a maximum $2500 fine on each

count. Because it was in the trial court’s discretion to impose a sentence within the

statutory range, we find that the trial court’s sentence of a concurrent twelve month term was

not an abuse of discretion.

{¶ 8} In the performance of our duty, under Anders v. California, to conduct an

independent review of the record, we find no potential assignments of error having arguable

merit. We conclude this appeal is wholly frivolous. The judgment of the trial court is

Affirmed.

.......... GRADY, P.J. and FAIN, J., concur. 5

Copies mailed to:

Nick A. Selvaggio Scott A. Ashelman Aaron Andrew Sexton Hon. Roger B. Wilson