State v. Powell , 2017 Ohio 569 ( 2017 )

[Cite as State v. Powell, 2017-Ohio-569.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-5
:
v. : T.C. NO. 15CR233
:
EDDY W. POWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___17th ___ day of _____February_____, 2017.
...........
KEVIN S. TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor’s Office, 200
N. Main Street, #102, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
MARCY VONDERWELL, Atty. Reg. No. 0078311, 120 W. Second Street, Suite 333,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Eddy Williams Powell pled guilty in the Champaign County Court of
Common Pleas to one count of sale of dangerous drugs, five counts of possession of
dangerous drugs, and one count of possession of drugs. Powell was sentenced to an
aggregate term of 18 months in prison; additionally, his driver’s license was suspended,
-2-
he was fined a total of $400, and was ordered to pay court costs.1 He appeals from his
conviction.
{¶ 2} Powell’s appellate counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), indicating that she had discovered no
non-frivolous issues for appeal. We informed Powell that his attorney had filed an
Anders brief on his behalf and granted him 60 days from that date to file a pro se brief.
No pro se brief has been filed.
{¶ 3} We have conducted our independent review of the record pursuant to
Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988), and we agree with
appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial
court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 4} According to the presentence investigation (PSI), a search warrant was
executed at Powell’s residence on October 2, 2015. Powell was present during the
execution of the warrant and was also “searched,” or at least patted down. A baggie with
marijuana and a marijuana bowl with burnt residue were found on Powell’s person. He
was arrested and informed of his rights.
{¶ 5} Powell thereafter admitted to the police officers that he had prescription pills
that had not been prescribed to him, and he directed the officers to the garage, where the
pills were stored. A drawer in the garage contained several prescription pill bottles that
were not in Powell’s name, and several more were next to the drawer; these prescription
1
Powell was also ordered to “pay back” the State’s “legal fees and expenses,” but the
court said these would “not be collected as court costs” and would be “separately
collected by the clerk.”
-3-
bottles bore the names of at least five different individuals. The officers also found digital
scales, hemostats, a spoon with residue, an unmarked pill bottle containing four pills, and
loose pills in the garage. In Powell’s bedroom, they found a baggie containing white pills,
some crushed white powder, and a prescription bottle belonging to Powell’s sister.
{¶ 6} Powell admitted to the officers that, at least once a week, several friends
came to his house and partied in his garage; at these parties, everyone brought
prescription pills, dumped them together on a table, and then took them orally. The
police officers described this as a “skittles party.”
{¶ 7} Powell also told the officers that he bought 90 Vicodin pills per month for
$270 from a certain individual who had a prescription for them. Powell admitted to using
Vicodin that day (the day of his arrest), and stated that he would test positive for Vicodin
and marijuana on a drug screen.
{¶ 8} On November 12, 2015, Powell was indicted on 12 counts: Count I – Sale
of Dangerous Drugs, a felony of the fourth degree; Count II – possession of dangerous
drugs for sale, a felony of the fifth degree; Counts III through VII – possession of
dangerous drugs, misdemeanors of the first degree; Counts VIII through X - possession
of drugs, misdemeanors of the first degree; Count XI – possession of marijuana, a minor
misdemeanor; and Count XII – illegal use or possession of marijuana drug paraphernalia,
a minor misdemeanor.
{¶ 9} Powell entered into a plea agreement whereby he pled guilty to the single
count of sale of dangerous drugs, five counts of possession of dangerous drugs, and one
count of possession of drugs (Counts I, III, IV, V, VI, VII, and VIII). Subject to certain
conditions, the State agreed to recommend community control sanctions.
-4-
{¶ 10} Powell was sentenced to 18 months of imprisonment for sale of dangerous
drugs and to four months each on the misdemeanor counts, to be served concurrently.
He was also fined and ordered to pay costs, as discussed above, and his driver’s license
was suspended. He was advised that he would be subject to post-release control for up
to three years and of the consequences of violating post-release control.
II. Sentencing
{¶ 11} In his Anders brief, Powell’s appellate counsel raises one potential
assignment of error: that the trial court abused its discretion in sentencing Powell to
eighteen months in prison.
{¶ 12} Eighteen months is the maximum sentence for a felony of the fourth
degree, which is the most serious offense of which Powell was convicted (sale of
dangerous drugs). He was sentenced to four months on each of six additional counts,
but these sentences were ordered to run concurrently to the felony sentence. Thus,
Powell’s sentence was within the statutory range.
{¶ 13} According to the PSI, Powell had previously been convicted of numerous
offenses, including several offenses each of operating a vehicle while intoxicated,
domestic violence, disorderly conduct, and assault. Alcohol was involved in several of
these offenses and in a pending charge of attempted sexual imposition, which involved
inappropriate touching of a teenaged girl. 2 However, Powell did not see himself as
having a problem with alcohol or with opiate addiction, notwithstanding that he acquired
his drugs on the street. Powell’s family history was fraught with alcohol abuse, domestic
2
The charge was pending, and the State was aware of it, at the time of the plea hearing.
By the time of the sentencing hearing, Powell had pled guilty to attempted sexual
imposition in municipal court.
-5-
violence, bootlegging, and trafficking.
{¶ 14} At the plea hearing, the court advised Powell that it could impose prison
time up to 18 months for sale of dangerous drugs and up to 180 days in local jail on the
misdemeanors counts, as well as various fines and a license suspension. Powell
indicated his understanding of these potential sentences. Powell also stated that no
promises had been made to him about the State’s recommendation of community control
except what had been presented in court.
{¶ 15} At the sentencing hearing, the State recommended community control and
“a chance [for Powell] to deal with his substance abuse problems,” in accordance with the
plea agreement, although it noted that Powell’s “lifestyle [was] going to require him to
completely overhaul his living situation and his lifestyle in order to be successful.” Powell
attributed the new offenses to his substance abuse problems, for which he requested
treatment, but he admitted that he could not remember seeking substance abuse
treatment or anger management classes following the previous offenses. He also noted
that, even with his criminal history, he was determined to be a “moderate” risk by the
probation department. Powell stated that he had not been to prison previously.
{¶ 16} The trial court asked many questions at the sentencing hearing and stated
that it “was trying to understand a little bit more as to why the State felt that this was a
community control offense.” The State did not offer a response to this question. The
trial court reviewed the PSI and Powell’s extensive criminal history, as described above.
The court described Powell’s house as “party central,” where drug users hang out. The
court also observed that Powell had lied at the sentencing hearing about his most recent
drug usage; he had assured the court that he would pass a drug screen, but when such
-6-
a screen was conducted during a break in the sentencing hearing, Powell tested positive
for marijuana. Drug usage while out on bond violated the terms of his bond. He had
failed to accurately complete a statement of his criminal history, as requested by the court.
The court also noted that, after the search warrant had been executed, but before charges
had been filed in this case, Powell had been charged with “tickling” or improper touching
of a 14-year-old girl while drunk.
{¶ 17} In imposing sentence, the court stated that it “tries very hard to follow the
recommendations of the lawyers,” and that “[s]ometimes it is more difficult than others.”
After reviewing the sentencing factors and Powell’s history and circumstances, the court
stated that it did not believe Powell was “amenable to an available community control
sanction” and sentenced him as described above.
{¶ 18} The court made detailed findings in accordance with R.C. 2929.11 and R.C.
2929.12 regarding the purposes and principles of sentencing and the seriousness and
recidivism factors applicable to Powell. It also discussed the factors which led it to
conclude that Powell was not amenable to available community control options, including
his past failures to avail himself of treatment, his continued drug use while this case was
pending, and his violation of one of the conditions of his bond. The court found that there
were “no reasonable alternatives” to imprisonment, especially considering Powell’s
deceptive responses to the court about his recent use of illegal drugs, his failure of a drug
test, and his sexual offense against a teenager while under the influence of alcohol while
these charges were pending.
{¶ 19} In order to reverse Powell’s sentence, we would have to find that it was
clearly and convincingly not supported by the record. See R.C. 2953.08(G)(2). The
-7-
abuse of discretion standard suggested by appellate counsel does not apply. State v.
Kennedy, 2d Dist. Greene No. 2016-CA-15 and 2016-CA-16, 2017-Ohio-26, ¶ 8, citing
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under the
standard set forth in R.C. 2953.08(G)(2), there is no non-frivolous argument regarding the
sentence.
III. Conclusion
{¶ 20} Having conducted our independent review of the record, including
transcripts of the plea and sentencing hearings, we agree with appellate counsel that
there are no non-frivolous issues for review. Accordingly, the trial court judgment will be
affirmed.
.............
HALL, P.J. and DONOVAN, J., concur.
Copies mailed to:
Kevin S. Talebi
Marcy Vonderwell
Eddy W. Powell
Hon. Nick A. Selvaggio