State v. Smith , 2020 Ohio 2854 ( 2020 )

[Cite as State v. Smith, 2020-Ohio-2854.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 28208, 28209,
: 28210, 28211
v. :
: Trial Court Case Nos. 2017-CR-1181,
STORM SMITH : 2016-CR-434, 2016-CR-529, 2018-
: CR-3475
Defendant-Appellant :
: (Criminal Appeal from
Common Pleas Court)
...........
OPINION
Rendered on the 8th day of May, 2020.
...........
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Appellant Storm Smith’s appointed counsel has filed a brief under the
authority of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)
indicating he could not find any potentially meritorious appellate issues. Following an
independent review of the record, we agree with this assessment. As such, the
judgments of the Montgomery County Common Pleas Court will be affirmed.
Facts and Procedural History
{¶ 2} In five separate indictments, Smith was indicted by the Montgomery County
Grand Jury as follows: Montgomery C.P. No. 2015-CR-636 (which, on appeal, was
assigned Montgomery App. No. 28207), Montgomery C.P. No. 2016-CR-434 (which, on
appeal, was assigned Montgomery App. No. 28209), Montgomery C.P. No. 2016-CR-529
(which, on appeal, was assigned Montgomery App. No. 28210), Montgomery C.P. No.
2017-CR-1181 (which, on appeal, was assigned Montgomery App. No. 28208), and
Montgomery C.P. No. 2018-CR-3475 (which, on appeal, was assigned Montgomery App.
No. 28211). Case No. 2015-CR-636 indicted Smith for possession of heroin, a third-
degree felony, possession of cocaine, a fifth-degree felony, aggravated possession of
drugs, a fifth-degree felony, and possession of drugs, a first-degree misdemeanor.
Following a jury trial in this case, Smith was convicted on all counts and sentenced to an
aggregate 36-month prison term.
{¶ 3} In Case No. 2016-CR-529, Smith filed a motion to suppress evidence, which
was denied.
{¶ 4} Following Smith’s conviction in Case No. 2015-CR-636, the parties reached
a plea agreement regarding the remaining cases as follows: in Case No. 2016-CR-434,
Smith pleaded guilty to failure to comply with an order or signal of a police officer, a third-
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degree felony. In Case No. 2016-CR-529, he pleaded guilty to trafficking in cocaine, a
third-degree felony. In Case No. 2017-CR-1181, he pleaded guilty to possession of
cocaine, a fifth-degree felony, and in Case No. 2018-CR-3475, he pleaded guilty to
aggravated possession of drugs, a fifth-degree felony. The parties agreed that Smith’s
prison sentences on these cases would, in total, be a concurrent three-year sentence to
be served concurrently to the three-year prison sentence in Case No. 2015-CR-636,
resulting, for all cases, in a three-year prison term. Immediately after accepting the guilty
pleas, the trial court sentenced Smith in accordance with the plea agreement. Smith
appealed each case, and this court consolidated the cases for appeal.
{¶ 5} Smith’s initial appellate brief asserted arguments only in Case No. 2015-CR-
636 (Montgomery App. No. 28207), the case in which she was convicted following a jury
trial. The brief stated in a footnote “that [as to the other cases] no meritorious argument
would be forthcoming.” In response, we filed a Decision and Entry ordering that
Montgomery App. No. 28207 “proceed * * * on the merits[,]” but with respect to the other
four cases, “which remain[ed] consolidated, * * * counsel [was instructed] to file a brief in
accordance with Anders * * *.” 1 Counsel complied with this instruction. Smith was
informed of the Anders brief and of his right to file a pro se brief within 60 days of the
Anders notice. Smith has not filed a brief.
Anders Standard
{¶ 6} Upon the filing of an Anders brief, an appellate court has a duty to determine,
“after a full examination of the proceedings,” whether the appeal is, in fact, “wholly
1
Smith’s conviction in Case No. 2015-CR-636 was affirmed in an opinion filed on October
19, 2019. State v. Smith, 2d Dist. Montgomery No. 28207, 2019-Ohio-4373.
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frivolous.” Anders, 386 U.S. at 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493; Penson v. Ohio, 488
U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). An issue is not frivolous based
upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d
Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one
about which, “on the facts and law involved, no responsible contention can be made that
offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-
Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders
brief and appoint new counsel to represent the defendant.
Anders Analysis
{¶ 7} Consistent with his duties under Anders, counsel has suggested the following
assignments of error: (1) that Smith did not enter the pleas in a knowing, intelligent, and
voluntary fashion; (2) that Smith’s sentence is contrary to law; and (3) that the trial court
erred when it overruled Smith’s motion to suppress in Case No. 2016-CR-529. We agree
with counsel’s assessment that pursuing these potential assignments of error would be
wholly frivolous.
{¶ 8} R.C. 2953.08(D)(1) provides that “[a] sentence imposed upon a defendant is
not subject to [appellate] review * * * if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution * * *, and is imposed by the
sentencing judge. If all three conditions are met, the defendant may not appeal the
sentence.” State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923,
¶ 16. Smith and the prosecution jointly recommended the sentence, and the trial court
imposed the recommended three-year concurrent prison term. The “authorized by law”
condition is a bit more nuanced, with a sentence being so authorized “only if it comports
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with all mandatory sentencing provisions.” Id. at paragraph two of the syllabus. Such
mandatory provisions include the proper imposition of postrelease control (PRC), making,
when applicable, the findings required for the imposition of consecutive sentences, and
ordering the merger of allied offenses of similar import. Id. at ¶ 20, 33.
{¶ 9} Our independent review confirms that Smith’s sentence is authorized by law.
Smith’s guilty pleas do not raise any merger issue. As to each charge, the trial court
correctly informed Smith of the maximum sentence that could have been imposed, absent
the parties’ agreement, and the potential and mandatory fines. The trial court also
correctly informed Smith of the mandatory and potential PRC implications, and the
judgment entries accurately reflect this discussion. In addition, as to the second-degree
felony trafficking in heroin charge, the trial court informed Smith that this offense required
the imposition of a mandatory prison term. Further, as to the failure to comply charge,
the trial court informed Smith that this offense required the imposition of a mandatory
driver’s license suspension. Finally, as to the drug counts, the trial court informed Smith
of a possibility of a driver’s license suspension. 2 Thus, Smith’s sentence was not
appealable under R.C. 2953.08(D)(1), and any appellate argument suggesting the
sentence is contrary to law would be wholly frivolous.
{¶ 10} The second proposed assignment of error relates to the trial court’s decision
overruling a motion to suppress in Case No. 2016-CR-529. Smith’s guilty plea in that
case “waives [her] ability to challenge the suppression ruling on appeal.” State v. Barron,
2d Dist. Greene No. 2017-CA-46, 2018-Ohio-1221, ¶ 5, citing State v. Guerry, 2d Dist.
2
The trial court found Smith indigent, and, on this basis, did not impose any mandatory
or discretionary fines. The trial court only imposed the mandatory license suspension
associated with the failure to comply charge.
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Clark No. 2015-CA-30, 2016-Ohio-962, ¶ 5, citing State v. Carsen, 2d Dist. Montgomery
No. 20285, 2004-Ohio-5809, ¶ 8. Given this, any appellate argument attacking the trial
court’s suppression decision would be wholly frivolous.
{¶ 11} Finally, turning to the third proposed assignment of error, any argument that
Smith did not enter the guilty pleas in a knowing, intelligent, and voluntary manner would
also be without potential appellate merit. Due process requires that a defendant’s guilty
plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct.
1709, 23 L. Ed. 2d 274 (1969); State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 25. Compliance with Crim.R. 11(C) insures compliance with this
constitutional mandate. State v. Cole, 2d Dist. Montgomery No. 26122, 2015-Ohio-
3793, ¶ 12. The trial court strictly complied with the Crim.R. 11(C) requirements when
taking Smith’s guilty pleas. Based upon this compliance, any argument that Smith’s
guilty pleas were less than knowing, intelligent, and voluntary would be without potential
appellate merit.
Conclusion
{¶ 12} We have found no non-frivolous issues for appellate review. Counsel’s
request to withdraw is granted, and the judgments of the Montgomery County Common
Pleas Court are affirmed.
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HALL, J. and WELBAUM, J., concur.
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Copies sent to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
Carlo C. McGinnis
Storm Smith
Hon. Mary Lynn Wiseman