[Cite as State v. Waugh , 2011-Ohio-1219.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA25 : vs. : Released: February 16, 2011 : JOHN D. WAUGH, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:
David Reid Dillon, South Point, Ohio, for Defendant-Appellant.
J.B. Collier, Jr., Lawrence County Prosecutor, and Robert C. Anderson, Lawrence County Assistant Prosecutor, Ironton, Ohio, for Plaintiff- Appellee. _____________________________________________________________
McFarland, J.:
{¶1} Defendant-Appellant, John D. Waugh, appeals the decision of
the Lawrence County Court of Common Pleas revoking his community
control sanctions and sentencing him to three years in prison. Waugh’s
appellate counsel, after reviewing the record below and consulting with his
client, states he can find no meritorious claim for an appeal and, pursuant to
Anders v. California, requests permission to withdraw from the case.
{¶2} Pursuant to Anders, counsel does, however, raise four
potential assignments of error for us to consider: 1) the trial court did not Lawrence App. No. 10CA25 2
take into account the misconduct of staff members at Waugh’s treatment
facility; 2) the court’s decision was against the manifest weight of the
evidence; 3) there was a question as to the voluntariness of Waugh’s
statement admitting drug use; and 4) he had ineffective assistance of
counsel. After a full examination of the record below, we find all four
potential assignments of error to be wholly frivolous. As such, we grant
counsel’s request to withdraw and affirm the decision of the trial court.
I. Facts {¶3} As part of a plea agreement, Waugh pleaded guilty to
attempted burglary, a third-degree felony. Through a judgment entry dated
November 6, 2008, the trial court sentenced him to four years of community
control sanctions. As part of those control sanctions, the trial court ordered
Waugh to successfully complete a nine to twelve month drug treatment
program at the New Beginnings treatment facility. The court further ordered
him to authorize the Bureau of Community Corrections to monitor his
progress at that facility. Waugh was also ordered to immediately report to
Community Corrections upon his discharge from New Beginnings. Another
of the control sanctions was that he not “use, own, possess or have
immediate control of any type of controlled substance, drug, or narcotic,
except on prescription by a physician.” The court reserved jurisdiction to Lawrence App. No. 10CA25 3
impose a prison sentence if Waugh violated the terms of his community
control sanctions.
{¶4} Waugh was subsequently involuntarily discharged from New
Beginnings in April 2010. Community Corrections contacted him by phone,
and gave him three days to report to their office. Waugh failed to report as
required, a capias was issued, and he was apprehended at his residence.
Community Corrections then administered a drug screen and Waugh tested
positive for OxyContin and marijuana. Though he initially denied it, Waugh
verbally admitted to drug use without proper medical authorization when
presented with the results of his drug screen. He also signed a written
acknowledgement to that effect.
{¶5} On April 26, 2010, the State moved to revoke Waugh’s
community control sanctions on the grounds that he had 1) failed to report to
the Bureau of Community Corrections as required; 2) lied or intentionally
misled probation officers; 3) used or possessed controlled substances; and 4)
failed to pay court costs. At his arraignment on these charges, Waugh stated
his intent to contest his discharge from New Beginnings. The State then
withdrew its allegations concerning Waugh's involuntary discharge from the
treatment program, but elected to proceed on the other grounds. Lawrence App. No. 10CA25 4
{¶6} A community control sanctions revocation trial was held on
May 5, 2010. During trial, the State presented the testimony of two
Community Corrections probation officers. The officers testified that
Waugh had failed to report to their office as required after he was dismissed
from New Beginnings, that he had failed a drug screen after he was
apprehended, that he had initially lied to them concerning his drug use, that
he later verbally admitted to using drugs, and that he had failed to pay court
costs as required. The State also admitted into evidence Waugh’s written
statement admitting the use of OxyContin and marijuana. Waugh presented
no evidence in his defense. The trial court subsequently sentenced him to
serve three years in prison of the four year sentence the court had previously
reserved.
II. Potential Assignments of Error First Potential Assignment of Error ALLEGATIONS OF MISCONDUCT ON THE PART OF STAFF AND PATIENTS AT THE TREATMENT FACILITY FROM WHICH DEFENDANT WAS DISCHARGED PRECLUDED ITS USE IN A MOTION TO REVOKE COMMUNITY CONTROL SANCTIONS.
Second Potential Assignment of Error THE DECISION OF THE COURT BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Lawrence App. No. 10CA25 5
Third Potential Assignment of Error
THE ISSUE OF THE VOLUNTARINESS OF THE WRITTEN ADMISSION OF DRUG USE WAS OF SUFFICIENT WEIGHT TO WARRANT REVERSAL OF THE COURT'S JUDGMENT.
Fourth Potential Assignment of Error
THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
III. Anders Brief {¶7} Waugh’s appellate counsel has filed an Anders brief in this
action. Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493, counsel may ask permission to withdraw from a case when he
or she has conscientiously examined the record, can discern no meritorious
claims for appeal and has determined the case to be wholly frivolous. Id. at
744; State v. Davis, 4th Dist. No. 10CA9, 2010-Ohio-5294, at ¶10.
Counsel’s request to withdraw must be accompanied with a brief identifying
anything in the record that could arguably support the client's appeal.
Anders at 744; Davis at ¶10. Further, counsel must provide the client with a
copy of the brief and allow sufficient time for him or her to raise any other
issues, if the client chooses to do so. Id.
{¶8} Once counsel has satisfied these requirements, the appellate
court must conduct a full examination of the trial court proceedings to
determine if meritorious issues exist. If the appellate court determines that
the appeal is frivolous, it may grant counsel’s request to withdraw and Lawrence App. No. 10CA25 6
address the merits of the case without affording the appellant the assistance
of counsel. Id. If, however, the court finds the existence of meritorious
issues, it must afford the appellant assistance of counsel before deciding the
merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,
2007-Ohio-2743, at ¶7.
{¶9} In the current action, Waugh’s appellate counsel concludes
the appeal is wholly frivolous and has asked permission to withdraw.
Pursuant to Anders, counsel has filed a brief raising four potential
assignments of error for this court to consider. Though advised of his right
to do so, Waugh did not file an additional pro se brief.
IV.
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[Cite as State v. Waugh , 2011-Ohio-1219.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA25 : vs. : Released: February 16, 2011 : JOHN D. WAUGH, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:
David Reid Dillon, South Point, Ohio, for Defendant-Appellant.
J.B. Collier, Jr., Lawrence County Prosecutor, and Robert C. Anderson, Lawrence County Assistant Prosecutor, Ironton, Ohio, for Plaintiff- Appellee. _____________________________________________________________
McFarland, J.:
{¶1} Defendant-Appellant, John D. Waugh, appeals the decision of
the Lawrence County Court of Common Pleas revoking his community
control sanctions and sentencing him to three years in prison. Waugh’s
appellate counsel, after reviewing the record below and consulting with his
client, states he can find no meritorious claim for an appeal and, pursuant to
Anders v. California, requests permission to withdraw from the case.
{¶2} Pursuant to Anders, counsel does, however, raise four
potential assignments of error for us to consider: 1) the trial court did not Lawrence App. No. 10CA25 2
take into account the misconduct of staff members at Waugh’s treatment
facility; 2) the court’s decision was against the manifest weight of the
evidence; 3) there was a question as to the voluntariness of Waugh’s
statement admitting drug use; and 4) he had ineffective assistance of
counsel. After a full examination of the record below, we find all four
potential assignments of error to be wholly frivolous. As such, we grant
counsel’s request to withdraw and affirm the decision of the trial court.
I. Facts {¶3} As part of a plea agreement, Waugh pleaded guilty to
attempted burglary, a third-degree felony. Through a judgment entry dated
November 6, 2008, the trial court sentenced him to four years of community
control sanctions. As part of those control sanctions, the trial court ordered
Waugh to successfully complete a nine to twelve month drug treatment
program at the New Beginnings treatment facility. The court further ordered
him to authorize the Bureau of Community Corrections to monitor his
progress at that facility. Waugh was also ordered to immediately report to
Community Corrections upon his discharge from New Beginnings. Another
of the control sanctions was that he not “use, own, possess or have
immediate control of any type of controlled substance, drug, or narcotic,
except on prescription by a physician.” The court reserved jurisdiction to Lawrence App. No. 10CA25 3
impose a prison sentence if Waugh violated the terms of his community
control sanctions.
{¶4} Waugh was subsequently involuntarily discharged from New
Beginnings in April 2010. Community Corrections contacted him by phone,
and gave him three days to report to their office. Waugh failed to report as
required, a capias was issued, and he was apprehended at his residence.
Community Corrections then administered a drug screen and Waugh tested
positive for OxyContin and marijuana. Though he initially denied it, Waugh
verbally admitted to drug use without proper medical authorization when
presented with the results of his drug screen. He also signed a written
acknowledgement to that effect.
{¶5} On April 26, 2010, the State moved to revoke Waugh’s
community control sanctions on the grounds that he had 1) failed to report to
the Bureau of Community Corrections as required; 2) lied or intentionally
misled probation officers; 3) used or possessed controlled substances; and 4)
failed to pay court costs. At his arraignment on these charges, Waugh stated
his intent to contest his discharge from New Beginnings. The State then
withdrew its allegations concerning Waugh's involuntary discharge from the
treatment program, but elected to proceed on the other grounds. Lawrence App. No. 10CA25 4
{¶6} A community control sanctions revocation trial was held on
May 5, 2010. During trial, the State presented the testimony of two
Community Corrections probation officers. The officers testified that
Waugh had failed to report to their office as required after he was dismissed
from New Beginnings, that he had failed a drug screen after he was
apprehended, that he had initially lied to them concerning his drug use, that
he later verbally admitted to using drugs, and that he had failed to pay court
costs as required. The State also admitted into evidence Waugh’s written
statement admitting the use of OxyContin and marijuana. Waugh presented
no evidence in his defense. The trial court subsequently sentenced him to
serve three years in prison of the four year sentence the court had previously
reserved.
II. Potential Assignments of Error First Potential Assignment of Error ALLEGATIONS OF MISCONDUCT ON THE PART OF STAFF AND PATIENTS AT THE TREATMENT FACILITY FROM WHICH DEFENDANT WAS DISCHARGED PRECLUDED ITS USE IN A MOTION TO REVOKE COMMUNITY CONTROL SANCTIONS.
Second Potential Assignment of Error THE DECISION OF THE COURT BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Lawrence App. No. 10CA25 5
Third Potential Assignment of Error
THE ISSUE OF THE VOLUNTARINESS OF THE WRITTEN ADMISSION OF DRUG USE WAS OF SUFFICIENT WEIGHT TO WARRANT REVERSAL OF THE COURT'S JUDGMENT.
Fourth Potential Assignment of Error
THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
III. Anders Brief {¶7} Waugh’s appellate counsel has filed an Anders brief in this
action. Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493, counsel may ask permission to withdraw from a case when he
or she has conscientiously examined the record, can discern no meritorious
claims for appeal and has determined the case to be wholly frivolous. Id. at
744; State v. Davis, 4th Dist. No. 10CA9, 2010-Ohio-5294, at ¶10.
Counsel’s request to withdraw must be accompanied with a brief identifying
anything in the record that could arguably support the client's appeal.
Anders at 744; Davis at ¶10. Further, counsel must provide the client with a
copy of the brief and allow sufficient time for him or her to raise any other
issues, if the client chooses to do so. Id.
{¶8} Once counsel has satisfied these requirements, the appellate
court must conduct a full examination of the trial court proceedings to
determine if meritorious issues exist. If the appellate court determines that
the appeal is frivolous, it may grant counsel’s request to withdraw and Lawrence App. No. 10CA25 6
address the merits of the case without affording the appellant the assistance
of counsel. Id. If, however, the court finds the existence of meritorious
issues, it must afford the appellant assistance of counsel before deciding the
merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,
2007-Ohio-2743, at ¶7.
{¶9} In the current action, Waugh’s appellate counsel concludes
the appeal is wholly frivolous and has asked permission to withdraw.
Pursuant to Anders, counsel has filed a brief raising four potential
assignments of error for this court to consider. Though advised of his right
to do so, Waugh did not file an additional pro se brief.
IV. First Potential Assignment of Error {¶10} The first potential assignment of error concerns allegations of
misconduct on the part of the staff at New Beginnings. The State initially
listed Waugh’s involuntary discharge from New Beginnings, and his
subsequent failure to report to Community Corrections, as a violation of his
community control sanctions. However, before the matter came on for trial,
the State dropped the issue as a cause for revocation. Further, the trial court
neither mentioned Waugh’s involuntary discharge from New Beginnings nor
relied on that factor in issuing its decision. Accordingly, this potential
assignment of error has no merit. Lawrence App. No. 10CA25 7
V. Second Potential Assignment of Error
{¶11} Waugh’s second potential assignment of error is that the trial
court’s decision was against the manifest weight of the evidence. When
determining whether a criminal conviction is against the manifest weight of
the evidence, we “will not reverse a conviction where there is substantial
evidence upon which the [trier of fact] could reasonably conclude that all the
elements of an offense have been proven beyond a reasonable doubt.” State
v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶21, quoting State
v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the
syllabus.
{¶12} Here, the State clearly presented substantial evidence to prove
Waugh had violated his community control sanctions. In fact, the testimony
of the probation officers was conclusive and uncontested. That testimony
first established the conditions of Waugh’s community control sanctions,
including that he was not to possess or use illegal drugs. The testimony then
revealed Waugh had failed a drug screen, verbally admitted to using drugs,
and signed a statement admitting he had used OxyContin and marijuana.
Further, that written statement, itself, was entered into evidence. Again,
Waugh failed to present any evidence rebutting or contradicting the
probation officers’ testimony. Lawrence App. No. 10CA25 8
{¶13} In light of the above, there was substantial evidence for the
trial court to reasonably conclude, beyond a reasonable doubt, that Waugh
had violated the terms of his community control sanctions. Accordingly, the
trial court’s decision was not against the manifest weight of the evidence and
Waugh’s third potential assignment of error has no merit.
VI. Third Potential Assignment of Error
{¶14} The third potential assignment of error questions the
voluntariness of Waugh’s written admission. However, there is no evidence
in the record to indicate that the admission was anything other than
voluntary. When he was apprehended, Waugh did initially deny that he had
used illegal drugs, but after his drug screen detected the use of OxyContin
and marijuana, he quickly changed his story. Probation officers testified
that, at that point, he verbally admitted to using the drugs approximately two
days prior. Then, he signed the written drug admission statement
acknowledging the same. The officer’s testimony and the written statement
were uncontradicted at trial. Accordingly, due to the complete lack of
evidence suggesting Waugh’s admission was involuntary, we overrule his
third potential assignment of error. Lawrence App. No. 10CA25 9
VII. Fourth Potential Assignment of Error
{¶15} Waugh’s final potential assignment of error is that he had
ineffective assistance of counsel. In order to establish ineffective assistance
of counsel, an appellant must show that counsel’s representation was both
deficient and prejudicial. State v. Miller, 4th Dist. No. 10CA2, 2010-Ohio-
3710, at ¶4; Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct.
2052. Deficient representation means counsel’s performance was below an
objective standard of reasonableness. State v. Madden, 4th Dist. No.
09CA883, 2010-Ohio-176, at ¶17; Strickland at 687-688; To show
prejudice, an appellant must show it is reasonably probable that, except for
the errors of his counsel, the proceeding’s outcome would have been
different. Madden at ¶18; Strickland at 694. “However, both prongs of this
‘Strickland test’ need not be analyzed if a claim can be resolved under one
prong.” Miller at ¶4, citing State v. Madrigal, 87 Ohio St.3d 378, 389,
2000-Ohio-448, 721 N.E.2d 52.
{¶16} Here, we can find no evidence in the record indicating that,
but for Waugh’s trial counsel’s errors, his community control sanctions
would not have been revoked. As previous shown, the evidence was
uncontested at trial that Waugh had 1) failed a drug screen; 2) verbally
admitted to using drugs; and 3) executed a written statement acknowledging Lawrence App. No. 10CA25 10
the use of OxyContin and marijuana – directly in violation of his community
control sanctions. It light of such evidence, no alleged errors of counsel
would have made it reasonably probable that the trial’s outcome would have
been different. As such, his representation was not prejudicial and we
overrule his final potential assignment of error.
VIII. Conclusion
{¶17} After conducting a full and independent examination of the
record and proceedings below, we agree with Waugh’s appellate counsel and
conclude there are no meritorious issues for appeal. Having reviewed the
four potential assignments of error and having found the appeal to be wholly
frivolous, we hereby grant counsel's motion to withdraw and affirm, in full,
the decision of the court below.
JUDGMENT AFFIRMED. Lawrence App. No. 10CA25 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Judge Matthew W. McFarland
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.