STATE OF OHIO v. PHILLIP BELL
Appellate Case No. 24665
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 30, 2011
[Cite as State v. Bell, 2011-Ohio-6799.]
HALL, J.
Trial Court Case No. 08-CR-823/1; (Criminal Appeal from Common Pleas Court)
Attorney for Plaintiff-Appellee
CHRISTOPHER B. EPLEY, Atty. Reg. #0070981, Christopher B. Epley Co., L.P.A., 124 East Third Street, Suite 300, Dayton, Ohio 45402
Attorney for Defendant-Appellant
OPINION
Rendered on the 30th day of December, 2011.
HALL, J.
{¶ 1} Defendant Phillip Bell was convicted of possеssion of heroin in an amount greater than one gram, but less than five grams, in violation of
{¶ 2} A Notice of Community Control Sanction Revocation Hearing and Order was filed on March 17, 2011, alleging that the defendant had violated community-control conditions. A revocation hеaring was conducted on May 20, 2011. The thrust of the hearing was that the defendant left a residentiаl treatment program at the local Veteran‘s Administration and failed to report to his probation officer. At the conclusion of the hearing, the trial court found that the dеfendant had violated community control and, after allocution, sentenced him to а reduced prison term of eight months. The defendant filed a Notice of Appeal on June 1, 2011.
{¶ 3} Appointed appellate counsel filed a motion to withdraw pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting the absence of any non-frivolous issue for our review. Counsel‘s motion included an Anders brief that raises two potential issues: the trial court abused its discretion in revoking the defendаnt‘s community control, and the trial court abused its discretion when it sentenced the defendаnt to prison for eight months. This Court notified Bell of appellate counsel‘s conclusion and gave Bell a period of time in which to file a pro-se brief assigning errors for our review. Bell did not file a brief.
{¶ 4} As a preliminary matter, it appears that the defendant has now completed his eight-month prison sentence. We find no indication in the record that the sentence was stayed. Moreover, he was in custody at the time of the revocation hearing and sentencing. The May 26, 2011 termination entry states that the defendant‘s “jail time credit is indicated in the entry
{¶ 5} The two potential issues raised by appellate counsel challenge, in essence, only the prison sentence imposed by the trial court, not the underlying possession conviction. Indeed, the time to appeal the conviction expired long ago. If we were to determine that the trial court abused its discretion by either (1) revoking community control or (2) sentencing the defendant to eight months in prison, the remedy would be to remand the matter for a new violation hearing or resentencing. But the defendant has now served his sentence. “This court cannot grant relief to an appellant who has served his sentence if the underlying сonviction is not at issue.” State v. Johnson, Lake App. No.2005-L-208, 2007-Ohio-780, ¶7; see, also, State v. Money, Clark App. No. 2009 CA 119, 2010-Ohio-6225, ¶25; State v. Silvers, Clark App. No.2009 CA 19, 2010-Ohio-567, ¶4 (taking judicial notice of the fact that the defendant‘s name did not appear on the ODRC‘s website and overruling defendant‘s challenge to his sentencе as moot). Because the potential issues raised by appellate counsel are undoubtedly
{¶ 6} In addition, pursuant to our responsibilities under Anders, we have independently, and carefully, reviewed the entire record in this case. We agree with the assessment of appointed appellate counsel that there are no issues for our review that have arguable merit.
{¶ 7} Counsel‘s request to withdraw from further representation is granted, and the judgment of the Montgomery County Common Pleas Court is affirmed.
DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Christopher B. Epley
Phillip Bell
Hon. Mary K. Huffman