[Cite as State v. Townsend, 2021-Ohio-2702.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-49 : v. : Trial Court Case No. 2020-CR-694 : KAREN M. TOWNSEND : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 6th day of August, 2021.
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, 2nd Floor, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
BRYAN S. HICKS, Atty. Reg. No. 0065022, P.O. Box 359, Lebanon, Ohio 45036 Attorney for Defendant-Appellant
.............
DONOVAN, J. -2-
{¶ 1} Karen M. Townsend pled guilty in the Greene County Court of Common
Pleas to identity fraud, petty theft, escape, and trespass into a habitation when a person
is present or likely to be present. At sentencing, the trial court imposed 22 months in
prison. Townsend appeals from her conviction.
{¶ 2} For the following reasons, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 3} On May 13, 2020, Townsend was caught shoplifting at Walmart. Throughout
the investigation, Townsend portrayed herself to be Stevie Gabbard. Townsend was
issued a summons to appear in the Fairborn Municipal Court under the name Stevie
Gabbard on one count of theft and one count of possession of criminal tools. Fingerprint
cards were completed, and Townsend signed them as Gabbard.
{¶ 4} On May 21, 2020, Stevie Gabbard contacted Investigating Probation Officer
Jacob Turner and informed him that someone had used her identity during a theft
investigation. Gabbard was shown a picture of the suspect taken on the date of the theft,
and she was able to identify the suspect as Townsend. Gabbard had previously let
Townsend stay with her, but the friendship had soured.
{¶ 5} On August 8, 2020, Townsend was incarcerated at the Fairborn Jail and was
brought to Soin Hospital due to a complaint of illness. Officer Cole was dispatched to Soin
Hospital to guard her. As Townsend was being escorted to the restroom and once she
had rounded the corner, she took off running. Townsend exited the hospital and headed
toward a construction area. Townsend looked directly at Officer Cole and ignored him as
he told her to stop, that she was still under arrest, and that she would be charged with
escape. -3-
{¶ 6} Townsend then ran into a nearby lake behind Soin Hospital toward
apartments located south of the hospital. Officer Cole walked along the shore informing
Townsend that she would be charged with escape, and he reiterated that she was still
under arrest. Townsend ignored Cole; she swam across the lake, ran around the front of
the nearby apartments, and hid under a bush. Additional officers arrived on the scene
and located Townsend, taking her into custody.
{¶ 7} Shortly after Townsend was taken into custody, the Beavercreek Police
Department received a call from one of the residents at the apartments south of Soin
Hospital. The resident advised that someone had tried to get into her apartment. She
stated that the door handle had rattled and, when she got to the door, she did not see
anyone but did see officers go around the corner to where Townsend was located. The
resident also indicated that there was a muddy bare footprint leading up to her front door.
{¶ 8} A bill of information was later filed and accepted by Townsend. She entered
guilty pleas to identity fraud, a felony of the fifth degree, petty theft, a misdemeanor of the
first degree, escape, a felony of the fifth degree, and trespass into a habitation when a
person is present or likely to be present, a felony of the fifth degree. The matter was set
for sentencing upon completion of a presentencing investigation report (PSI).
{¶ 9} Before the trial court accepted the guilty pleas, the judge explained that even
though the State was recommending community control and an inpatient treatment
program, he was not bound by that recommendation. The PSI recommended a prison
sentence. Townsend conveyed surprise and communicated with her counsel that she
thought community control was probably going to be imposed, which was why she pled.
However, the trial court asked if Townsend pled guilty because she had committed the -4-
offenses, and she admitted that she had committed the offenses.
{¶ 10} At sentencing, the trial court stated that it had considered the statements of
the parties, the PSI, the purposes and principles of sentencing, and balanced the
seriousness and recidivism factors of R.C. 2929.12. The trial court also stated that it had
found under R.C. 2929.34(B)(3)(d) that one of the offenses was a crime of violence, that
Townsend had previously been convicted of a crime of violence, that she had previously
been to prison, and that she had committed an offense while under community control,
probation, or while released on custody on a bond or personal recognizance. Thus, the
trial court held that even though three of the offenses were fifth-degree felonies, it had the
discretion to impose a prison sentence.
{¶ 11} Townsend was sentenced to 11 months in prison on each of the three
felonies and to six months on the misdemeanor. The sentences for identity fraud, petty
theft, and trespass into a habitation were to be served concurrently, and the sentence for
escape was to be served consecutively to the other sentences, for a cumulative sentence
of 22 months in prison. Court costs were also imposed.
{¶ 12} The court noted why it found that Townsend was not amenable to
community control, explaining that her criminal history showed issues with compliance
and that her prison sentence was a result of being revoked from community control, her
drug issues, and the fact of a trafficking conviction. The court also found that her escape
charge showed an inability to face the consequences of her conduct. Additionally, the
court considered her lack of cooperation with the probation department, her drug
overdose while in custody, and her refusal to accept placement at the MonDay Program
or the local Greene Leaf Program. -5-
{¶ 13} Townsend stated that she refused the MonDay program because of a
COVID-19 outbreak and that she was willing to attend the Greene Leaf Program and
begged to be sent to Greene Leaf. The trial court held a sidebar and asked the probation
officer if there would be a change in recommendation if Townsend were to go to Greene
Leaf. The officer said that Townsend had previously rejected Greene Leaf and advised
the court that the Tapestry Program through the Ohio Department of Rehabilitation and
Correction was a better fit, given her history and waffling.
{¶ 14} The trial court found that Townsend was not amenable to community control
and that she had initially adamantly refused the MonDay and Greene Leaf Programs
during the PSI stage. The court encouraged Townsend to enroll in the Tapestry Program
in prison. She again begged to go to Greene Leaf, a local treatment program. However,
given her criminal history and inconsistent position regarding the Greene Leaf program,
the court imposed a prison term, where the Tapestry Program would be made available
at the penal institution.
{¶ 15} The trial court made the required findings for imposing a prison sentence.
{¶ 16} Townsend filed a timely notice of appeal.
II. Anders Appeal Standard
{¶ 17} Townsend’s 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), indicating that he found
no errors by the trial court prejudicial to the rights of Townsend. Counsel offers two
potential assignments of error: (1) whether the trial court erred by finding that Townsend
was refusing inpatient treatment when she begged for Greene Leaf at the sentencing,
and (2) whether the court improperly weighed the statutory factors in concluding that she -6-
was not amenable to community control and that a prison sentence was appropriate on
the felony charges. This court informed Townsend that her attorney has filed an Anders
brief on her behalf, and that she could file a pro se brief. Townsend did not file a pro se
brief.
{¶ 18} When an Anders brief is filed, the appellate court must determine, “after a
full examination of the proceedings,” whether the appeal is “wholly frivolous.” Id. at 744;
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. 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 (if a pro se brief is filed), or found through an
independent analysis -- is not wholly frivolous, we must appoint different appellate
counsel to represent appellant. Id. at ¶ 17.
III. Anders Review
A. Townsend’s Guilty Plea
{¶ 19} "An appellate court must determine whether the record affirmatively
demonstrates that a defendant's plea was knowing, intelligent, and voluntary[.]" State v.
Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7, citing Boykin v. Alabama,
395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). If a defendant's plea is not
knowing, intelligent, and voluntary, it "has been obtained in violation of due process and -7-
is void." Id.
{¶ 20} "In order for a plea to be given knowingly and voluntarily, the trial court must
follow the mandates of Crim.R. 11(C)." State v. Brown, 2d Dist. Montgomery Nos. 24520,
24705, 2012-Ohio-199, ¶ 13. The Supreme Court of Ohio has urged trial courts to comply
literally with Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 29. However, in reviewing the plea colloquy, the focus should be on
whether "the dialogue between the court and the defendant demonstrates that the
defendant understood the consequences of his plea." State v. Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765, 164 N.E.3d 286, ¶ 12.
{¶ 21} Crim.R. 11(C)(2) requires a trial court to address the defendant personally
and (a) determine that the defendant is making the plea voluntarily, with an understanding
of the nature of the charges and the maximum penalty, and, if applicable, that the
defendant is not eligible for probation or for the imposition of community control sanctions;
(b) inform the defendant of and determine that the defendant understands the effect of
the plea of guilty and that the court, upon acceptance of the plea, may proceed with
judgment and sentencing; and (c) inform the defendant and determine that he or she
understands that, by entering the plea, the defendant is waiving the rights to a jury trial,
to confront witnesses against him or her, to have compulsory process for obtaining
witnesses, and to require the State to prove guilt beyond a reasonable doubt at a trial at
which he or she cannot be compelled to testify against himself or herself. State v. Brown,
2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.
{¶ 22} In general, a defendant is not entitled to have his or her plea vacated unless
the defendant demonstrates he or she was prejudiced by a failure of the trial court to -8-
comply with the provisions of Crim.R. 11(C). Dangler at ¶ 16, citing State v. Nero, 56 Ohio
St.3d 106, 108, 564 N.E.2d 474 (1990). The test for prejudice is "whether the plea would
have otherwise been made." Id.
{¶ 23} This general rule is subject to two exceptions. Id. at ¶ 16. First, the trial court
must comply strictly with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal
constitutional rights. Id at ¶ 14; Clark at ¶ 31. "When a trial court fails to explain the
constitutional rights that a defendant waives by pleading guilty or no contest, we presume
that the plea was entered involuntarily and unknowingly, and no showing of prejudice is
required." Dangler at ¶ 14.
{¶ 24} Second, "a trial court's complete failure to comply with a portion of Crim.R.
11(C) eliminates the defendant's burden to show prejudice." Id. at ¶ 15, citing State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. See also State v.
Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 11 (a defendant must
show prejudice if the trial court partially complied with Crim.R. 11(C) in regard to a
nonconstitutional right, but no showing of prejudice is required if the trial court completely
failed to comply).
{¶ 25} We have reviewed the transcript of the plea hearing and find that the trial
court fully complied with the requirements of Crim.R. 11. The court initially questioned
Townsend about her waiver of grand jury and consent to a bill of information. The court
inquired if she was under the influence of alcohol, illegal drugs, medications, or related
substances. The court asked if she had discussed the case with her attorney and any
possible defenses, if she had informed her attorney of everything he needed to know in
order to fully and properly represent her, if the attorney had answered her questions, and -9-
if she was satisfied with the legal advice received thus far. She answered all questions
affirmatively.
{¶ 26} The court reviewed the four offenses to which Townsend was entering a
plea and the maximum sentences for those offenses. The court reviewed what community
control might entail and the potential consequences of violating community control. The
court advised Townsend that the prosecution may make a sentencing recommendation
but the court is not bound to follow that recommendation.
{¶ 27} The trial court told Townsend that a guilty plea was a complete admission
of guilt, and it reviewed the constitutional rights she was waiving by entering a plea.
Townsend denied that her plea was the result of promises (other than the plea agreement)
or threats. Townsend admitted to committing the offenses. Townsend told the court she
was entering her plea voluntarily, and she signed the plea forms.
{¶ 28} Upon review of the plea hearing transcript, we find no non-frivolous issues
relating to Townsend's plea.
{¶ 29} In addition, we find nothing in the record to suggest that anything that
occurred prior to the plea hearing precluded Townsend from entering a knowing,
intelligent, and voluntary plea. A plea of guilty is a complete admission of guilt. E.g., State
v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v. Wheeler,
2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; Crim.R. 11(B)(1). Consequently,
a guilty plea generally waives all appealable errors that may have occurred in the trial
court, unless such errors precluded the defendant from knowingly, intelligently, and
voluntarily entering his or her guilty plea. See, e.g., State v. Kelley, 57 Ohio St.3d 127,
566 N.E.2d 658 (1991), paragraph two of the syllabus; Wheeler at ¶ 3. We find no non- -10-
frivolous issues related to the events prior to Townsend's guilty plea.
B. Townsend’s Sentence
{¶ 30} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it "clearly and convincingly"
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,
2017-Ohio-4097, ¶ 6.
{¶ 31} "The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences." State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500,
2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St.3d
54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 32} In imposing sentence, the trial court made the following findings:
Throughout the defendant's criminal history, there is a pattern of
noncompliance. She has been placed on Felony Community Control two
times in the past and was unsuccessful on both occasions. In the past, her
community control was revoked and she was sentenced to prison. The -11-
defendant has 3 prior felony convictions and was also previously convicted
of one Failure to Comply with an Order or Signal of a Police Officer
misdemeanor charge. That charge, along with this current Escape charge,
show her lack of compliance. The defendant was given multiple options to
participate in an inpatient treatment program. The defendant advised that
she would adamantly deny to participate in either the MonDay Program or
the Green [sic] Program. The defendant also advised that she previously
attended the MonDay Program but was removed from the program for
having inappropriate contact with another resident. The defendant would
like to pick and choose where she attends treatment and would only like to
participate in a non-lockdown facility. When asked about her substance
abuse, the defendant stated she has not used an illegal substance since
August 23, 2020 but did not acknowledge the fact that she was transported
to the ICU at Soin Hospital from the Greene County Jail on September 27,
2020 due to an overdose while at the jail. This shows that even while being
incarcerated in a jail setting, the defendant has difficulty following the rules
that are in place.
Judgment Entry (Sep. 13, 2019).
{¶ 33} The PSI reflects that Townsend was 40 years old when the offenses
occurred and at sentencing. She had no juvenile record. In 2012, Townsend was
convicted of trafficking drugs, a felony of the fourth degree. In 2013, there was a probation
violation, and probation was terminated. In May 2014, Townsend was convicted for
possession of heroin, a felony of the fourth degree. In December 2015, probation was -12-
revoked and she was sentenced to nine months in prison. In October 2015, Townsend
was convicted of possession of drugs, a felony of the fifth degree, and sentenced to eight
months in prison.
{¶ 34} Townsend completed high school and was not employed at the time of the
hearing. She was in good physical health. She had a prior mental health diagnoses of
post-traumatic stress disorder and depression, which were a present possibility.
{¶ 35} The maximum total penalty for all of the counts of which Townsend was
convicted was 36 months in prison, six months in jail, and an $8,500 fine. Post-release
control was optional for a period of three years on the felony counts. The sentences were
ordered to be served concurrently, except the sentence for escape was ordered to be
served consecutively, as required by statute. The aggregate sentence was 22 months, of
which none was a mandatory term pursuant to R.C. 2929.13(F), R.C. 2929.14, or R.C.
Chapter 2925. The trial court also stated that Townsend would serve a portion of the
terms consecutively, pursuant to R.C. 2929.14(C)(4). The trial court found that her history
of criminal conduct demonstrated that consecutive sentences in part were necessary to
protect the public from future crime by her. Furthermore, pursuant to R.C. 2921.34(A)(1),
the sentence for escape had to be served consecutively to the other sentences.
{¶ 36} The trial court determined that Townsend was entitled to 98 days of jail time
credit. In its judgment entry, the trial court indicated that Townsend would receive
additional credit while awaiting transport to prison.
{¶ 37} We have examined the entire record and conducted our independent
review in accordance with Penson, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We
conclude that no non-frivolous issues exist for appeal in this case. -13-
IV. Conclusion
{¶ 38} The trial court’s judgment is affirmed.
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Marcy A. Vonderwell Bryan S. Hicks Successor to Hon. Stephen A. Wolaver