State v. Ray , 2018 Ohio 3293 ( 2018 )

[Cite as State v. Ray, 2018-Ohio-3293.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-33
:
v. : Trial Court Case No. 2017-CR-136
:
WALTER E. RAY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of August, 2018.
...........
KEVIN TALEBI, Atty. Reg. No. 0069198, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 West Fourth Street, Suite 250, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Walter E. Ray appeals his conviction and sentence for
one count of felonious assault, in violation of R.C. 2903.11(A)(2)(D)(1)(a), a felony of the
second degree, and one count of trafficking in marijuana, in violation of R.C.
2925.03(A)(2)(C)(3)(b), a felony of the fourth degree. The felonious assault count was
accompanied by a forfeiture specification pursuant to R.C. 2941.1417(A). Ray’s
appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), and now seeks leave to withdraw as counsel.
FACTS and PROCEDURAL HISTORY
{¶ 2} On June 29, 2017, Ray was indicted in the Champaign County Court of
Common Pleas on a nine counts, including two counts of felonious assault with firearm
specifications; one count of having a weapon while under disability; one count of
improperly handling firearms in a motor vehicle; two counts of carrying a concealed
weapon; two counts of trafficking in marijuana; and one count of possession of marijuana.
At his arraignment on July 5, 2017, Ray pled not guilty to all of the counts contained in
the indictment.
{¶ 3} Thereafter, on September 21, 2017, Ray pled guilty to one count of felonious
assault without a firearm specification and one count of trafficking in marijuana. Ray also
pled guilty to a forfeiture specification attached to the felonious assault charge with
respect to a handgun that was used in the commission of the instant offenses. In return
for Ray’s guilty pleas, the State agreed to dismiss all of the remaining counts with
prejudice. After accepting Ray’s guilty pleas, the trial court referred the matter for a
presentence investigation report (“PSI”).
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{¶ 4} At Ray’s dispositional hearing on October 25, 2017, the trial court sentenced
him to seven years in prison for the felonious assault conviction and eighteen months for
trafficking in marijuana. The trial court ordered that the sentences be served
concurrently for an aggregate prison term of seven years. The trial court also ordered
forfeiture of the handgun recovered from Ray and imposed a fine of $1,250.00.
{¶ 5} Based on the belief that no prejudicial error occurred below and that any
grounds for appeal would be frivolous, Ray’s appellate counsel filed a motion to withdraw
pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
ANDERS STANDARD
{¶ 6} Anders outlines the procedure counsel must follow to withdraw as counsel
due to the lack of any meritorious grounds for appeal. In Anders, the United States
Supreme Court held that if appointed counsel, after a conscientious examination of the
case, determines the appeal to be wholly frivolous, he or she should advise the court of
that fact and request permission to withdraw. Id. at 744. This request, however, must be
accompanied by a brief identifying anything in the record that could arguably support the
appeal. Id. Further, counsel must also furnish the client with a copy of the brief, and
allow the client sufficient time to file his or her own brief, pro se. Id.{¶ 7} Once the appellant's counsel satisfies these requirements, this court must
fully examine the proceedings below to determine if any arguably meritorious issues exist.
Id. If we determine that the appeal is wholly frivolous, we may grant counsel's request
to withdraw and dismiss the appeal without violating constitutional requirements, or we
may proceed to a decision on the merits if state law so requires. Id.{¶ 8} In this case, appointed counsel fully complied with the requirements of
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Anders. Ray has failed to file a pro se brief.
{¶ 9} Ray’s appointed counsel states in his Anders brief that he extensively
reviewed the record, including the transcript of the proceedings and the PSI, and
concluded that he could not make any meritorious arguments on Ray’s behalf. Ray’s
appointed counsel, however, has presented us with a single potentially meritorious
assignment of error for our consideration, to wit:
THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE MR. RAY’S
CONDUCT WAS NOT MORE SERIOUS THAN NORMAL AND THE
SENTENCE IS UNREASONABLE GIVEN THE CIRCUMSTANCES.
{¶ 10} In his single potential assignment, appointed counsel contends that the
prison sentence imposed by the trial court was unreasonable because the trial court did
not take into account that Ray acted under strong provocation when he shot the victim
three times during the commission of an illegal drug sale. See R.C. 2929.12(C). Initially,
we note that his seven-year sentence is within the applicable statutory range and is less
than the maximum sentence of nine and one-half years.
{¶ 11} As this Court has previously noted:
“This court no longer applies an abuse of discretion standard when
reviewing felony sentences, as the Supreme Court of Ohio has made clear
that felony sentences are to be reviewed in accordance with the standard
set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist. Clark No. 2016–
CA–28, 2016–Ohio–7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516,
2016–Ohio–1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer,
2013–Ohio–5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.) Under the plain language
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of R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence
that the record does not support the trial court's findings under relevant
statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1.
“This is a very deferential standard of review, as the question is not whether
the trial court had clear and convincing evidence to support its findings, but
rather, whether we clearly and convincingly find that the record fails to
support the trial court's findings.” State v. Cochran, 2d Dist. Clark No. 2016–
CA–33, 2017–Ohio–217, ¶ 7, citing Rodeffer at ¶ 31.
Even before Marcum, we had indicated “[t]he 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 reasons for
imposing maximum or more than minimum sentences.” (Citation omitted.)
State v. Nelson, 2d Dist. Montgomery No. 25026, 2012–Ohio–5759.
Accord State v. Terrel, 2d Dist. Miami No. 2014–CA–24, 2015–Ohio–4201,
¶ 14. But “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.” (Citations omitted.) State v. Castle,
2016–Ohio–4974, 67 N.E.3d 1283, ¶ 26 (2d Dist.). * * *
State v. Folk, 2d Dist. Montgomery No. 27375, 2017–Ohio–8105, ¶ 5–6.
{¶ 12} R.C. 2929.11 requires trial courts to be guided by the overriding principles
of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that the court
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determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender's conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
{¶ 13} R.C. 2929.12(B) sets forth nine factors indicating an offender's conduct is
more serious than conduct normally constituting the offense. R.C. 2929.12(C) sets forth
four factors indicating that an offender's conduct is less serious. R.C. 2929.12(D) and
(E) each list five factors that trial courts are to consider regarding the offender's likelihood
of committing future crimes. Finally, R.C. 2929.12(F) requires the sentencing court to
consider the offender's military service record and “whether the offender has an
emotional, mental, or physical condition that is traceable to the offender's service in the
armed forces of the United States and that was a contributing factor in the offender's
commission of the offense or offenses.”
{¶ 14} In the case at bar, the trial court imposed a sentence and fine within the
permissible statutory range. The record establishes that the trial court properly reviewed
the PSI, Ray’s statements, and the victim impact statement, as well as the statements
and memoranda of counsel. The record further establishes that the trial court considered
the principles and purposes of sentencing under R.C. 2929.11, and that it balanced the
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seriousness and recidivism factors set forth in R.C. 2929.12. We also note that when it
imposed sentence, the trial court specifically stated “that in committing the offense the
Defendant acted under strong provocation” because the victim was physically attacking
Ray before Ray brandished a handgun and shot the victim. Sentencing Tr. 50.
Nevertheless, Ray has an extensive juvenile history, a misdemeanor history as an adult,
along with a pending warrant for domestic violence. In sum, we are unable to find “by
clear and convincing evidence that the record does not support the sentence.” Marcum
at ¶ 23. Therefore, in our view, sentence is not contrary to law.
{¶ 15} Additionally, pursuant to our responsibilities under Anders, we have
conducted an independent review of the entire record, including the pre-sentence
investigation report. Having done so, we agree with the assessment of appointed
counsel that there are no arguably meritorious issues to present on appeal.
{¶ 16} Therefore, no potential assignments of error with arguable merit having
been found, the judgment of the trial court is affirmed.
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HALL, J. and TUCKER, J., concur.
Copies mailed to:
Kevin Talebi
Brent E. Rambo
Hon. Nick A. Selvaggio