State v. Webster

2017 Ohio 124

• Court: Ohio Court of Appeals
• Decided: January 13, 2017
• Docket: 2016-CA-25
• Status: Published

Opinion

[Cite as State v. Webster, 2017-Ohio-124.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2016-CA-25 : v. : Trial Court Case No. 15-CR-566 : ERIC WEBSTER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 13th day of January, 2017.

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 315 South Monument Avenue, Hamilton, Ohio 45011 Attorney for Defendant-Appellant

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HALL, J.

{¶ 1} Eric Webster appeals his conviction and sentence to prison for six months

after entering a guilty plea to a charge of carrying a concealed weapon, a felony of the -2-

fourth degree. Finding no error we affirm.

{¶ 2} On November 2, 2015, Webster was indicted for improper handling of a

firearm in a motor vehicle and carrying a concealed weapon, a firearm, both felonies of

the fourth degree. The charges arose out of a traffic stop of a vehicle, in which Webster

was the passenger, due to a strong odor of marijuana that officers smelled from 2-3 car

lengths behind the vehicle which they followed for about four blocks. When the vehicle

was stopped, the flashlight of the officer on Webster’s side illuminated what was found to

be a loaded black semi-auto handgun under the front seat at Webster’s feet. At police

headquarters, Webster was advised of his Miranda rights. He then admitted he had found

the gun but had forgotten that it was under his seat.

{¶ 3} On February 22, 2016, Webster, represented by counsel, entered a guilty

plea to the CCW charge in exchange for dismissal of the improper handling charge. The

court referred the case for a presentence investigation. On March 14, 2016, the trial court

sentenced Webster to serve six months in prison.

{¶ 4} Webster’s counsel has filed a brief under Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that counsel was unable to identify any

viable appealable error for review and requesting our permission to withdraw as counsel.

By order filed August 23, 2016, we informed Webster 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. Webster

did not file anything, and the time for filing has expired. Webster has apparently completed

his sentence and is not subject to post-release control.1

1 This Court's review of the Ohio Department of Rehabilitation and Correction's website confirms that Webster is no longer an inmate, nor is he subject to post-release control. See State v. Erdman, 2d Dist. Montgomery No. 25814, 2014–Ohio–2997, ¶ 3 (taking -3-

Potential Issues

{¶ 5} Counsel’s Anders brief refers to three potential errors for our consideration,

the first of which is whether the trial court complied with Crim. R. 11 to insure that the plea

was knowingly, intelligently and voluntarily entered. We have carefully reviewed the plea

and observe that the trial court fully complied with Crim. R. 11 and the appropriate

statutes, and that the trial court also concluded that Webster’s plea was “knowingly,

voluntarily, [and] intelligently” made. (Transcript of Plea at 7). We agree that there was no

error in the taking of the plea and that any assignment of error challenging the plea would

be frivolous.

{¶ 6} Counsel also suggests as a potential issue whether the trial court properly

sentenced this first-time felony offender to prison or was community control mandatory.

Pursuant to R.C. 2929.13(B)(1)(b), a trial court has discretion to impose a prison term

upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault offense “if any of

the following apply: (i) The offender committed the offense while having a firearm on or

about the offender's person or under the offender's control.” Id. We have previously held

carrying a concealed firearm qualifies as an offense which allows discretion to impose a

prison term under R.C. 2929.13(B)(1)(b)(i). An assignment of error to the contrary would

{¶ 7} Finally, counsel suggests, without further argument, that there may be a

potential issue whether Webster’s sentence is contrary to law. But the sentence is clearly

judicial notice appellant's name is not listed on the ODRC website). -4-

within the statutory range for a fourth degree felony and there is absolutely nothing in the

record to indicate the sentence is unlawful. An argument that Webster’s sentence is

contrary to law is frivolous.

Anders Review

{¶ 8} We have conducted a full examination of all the proceedings to decide

whether the case is wholly frivolous, as required by Penson v. Ohio, 488 U.S. 75, 80, 109

S.Ct. 346, 102 L.Ed.2d 300 (1988), citing Anders at 744. We have thoroughly reviewed

the docket, the various filings, the written transcripts of the plea hearing and the

sentencing hearing, and the court’s judgment and sentencing entry. We have found no

non-frivolous issues for review. Accordingly, we grant counsel’s request to withdraw and

the judgment of the Clark County Common Pleas Court is affirmed.

FROELICH, J., and WELBAUM, J., concur.

Copies mailed to:

Megan M. Farley Scott N. Blauvelt Eric Webster Hon. Douglas M. Rastatter