State v. BrownState v. Brown
- Reporters:
- Before:
- Singer, Skow, Parish
DECISION AND JUDGMENT ENTRY
{¶ 1} This is аn accelerated appeal from a judgment of the Sandusky County Court of Common Pleas. Following a guilty plea, the trial court found appellant, Robert D. Brown, guilty of one count of attempted engaging in a pattern of corrupt activity, a lesser included offense in violation of
{¶ 2} Appointed counsel has submittеd a request to withdraw, pursuant to Anders v. California (1967), 386 U.S. 738. In support of her request, counsel states that, after reviewing the record of proceedings in the trial court, she was unable to find any “arguable, non-frivolous” issues for аppeal.
{¶ 3} A review of the record reveals the following relevant facts. Between May 15 and October 19, 2004, appellant and several other individuals systematically stole farm machinery and оther items from rural residents in Sandusky County on at least 18 different occasions. The thieves sold the items to another individual, who either kept the items or resold them to “customers.” Appellant and the others were eventually apprehended. On December 13, 2004, appellant was indicted by the Sandusky County Grand Jury on 18 counts of breaking and entering, in violation of
{¶ 4} On November 7, 2005, appellant entered a plea of guilty to one count of attemptеd engaging in a pattern of corrupt activity, a lesser included offense to Count 38 of the indictment, which is a third degree felony. After conducting a hearing, the trial court found appellant‘s plea was knowingly, voluntarily and intelligently made. The plea then was accepted, and the trial court found appellant guilty, dismissing the remaining 37 counts of the indictment. A presentence investigation report was оrdered.
{¶ 5} On January 11, 2006, a sentencing hearing was held, at which appellant was present with court-appointed defense counsel. Defense counsel asked the trial court to give appеllant a sentence “that will allow him to apply for Judicial Release” so he could continue his employment. The trial court then reviewed appellant‘s lengthy criminal history, which included a conviction for involuntary manslaughter resulting from a DUI offense in Seneca County, for which he was placed on probation, and an eight year prison term in 1996, for aggravated burglary and arson in Lucas County. The trial court noted appellant committed the instant offenses within 60 days of his release from prison.
{¶ 6} In addition to the above, the trial court stated the maximum prison term is appropriate in this case, since a lesser sentence would demean the seriousness of appellant‘s conduct and, “quite honestly, wouldn‘t adequately protect the public from future criminal conduct.” The trial court stаted that recidivism was likely, since appellant did not have the ability to “say no” to criminal opportunities.
{¶ 7} After making the above statements, the trial court sentenced appellant to serve the maximum five-year prison term. Appellant was also ordered to pay restitution in the amount of $4,000. That same day, a judgment entry of sentencing was filed. It is from that judgment that appellant appeаls.
{¶ 8} Anders, supra, and State v. Duncan (1978), 57 Ohio App.2d 93, set forth the procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsеl, after a conscientious examination of the case, determines it to be wholly frivolous he should so advise the court and request permission to withdraw. Anders at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish his client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any mаtters that he chooses. Id. Once these requirements have been satisfied, the appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is frivolous, it may grant counsel‘s request to withdraw and dismiss the appeal without violating constitutional requirеments or may proceed to a decision on the merits if state law so requires. Id.
{¶ 9} In the case before us, appointed counsel for appellant has satisfied the requirements set forth in Anders, supra. Appellant was notified by counsel of his right to file an appellate brief on his own behalf; however, no brief was filed. Accordingly, we shall proceed with an examination of the potential assignment оf error set forth by counsel for appellant and the entire record below to determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 10} Appointed counsel asserts that the only possible issue to be raised on appeal is whether the trial court made findings of fact to support its imposition of a greater-than minimum sentence, as required by
{¶ 11} “(1) The sentence consisted of or included the maximum prison term allowed for the offense * * * and the court imposed the sentence under оne of the following circumstances:
{¶ 12} “(a) The sentence was imposed for only one offense. * * *” Counsel states that the record in this case is “replete” with examples as to why the maximum sentenсe was justified, which include appellant‘s prior convictions and the wide scope of corrupt activity constituting the offense of which appellant was found guilty. Counsel further states that, pursuant tо State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, judicial fact finding is no longer required before a prison term “may be imposed within the basic ranges of
{¶ 13} We do not agree. In Blakely v. Washington (2004), 542 U.S. 296, the United States Supreme Court held that a sentencing court is prohibited from imposing a non-minimum sеntence based on factual findings neither admitted to by the defendant nor found by a jury. In Foster, supra, the Ohio Supreme Court, interpreting Ohio‘s sentencing provisions in light of the decision in Blakely, similarly determined that portions of Ohio‘s sentеncing statutes, including
{¶ 14} The range of possible prison sentences for a third degree felony is between one and five years.
{¶ 15} “(B) Except as provided in division (C) * * * of this section, * * * if the court imposing a sentence upon an offender for a fеlony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or mоre of the following applies:
{¶ 16} “(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 17} “(2) The court finds on the record that the shortеst prison term will demean the seriousness of the offender‘s conduct or will not adequately protect the public from future crime by the offender or others.
{¶ 18} “(C) Except as provided in division (G) of this sectiоn or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under divisiоn (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section.”
{¶ 19} The court sentenced appellant to the maximum term. Before Foster, a judge could impose, pursuant to
{¶ 20} It is clear that appellant‘s sentence was based upon some judicial fact finding. At the sentencing hearing, the trial court judge found “that to sеntence you to anything else would demean the seriousness of your conduct, and, quite honestly, wouldn‘t adequately protect the public from future criminal conduct. You‘ve just shown that you don‘t have the fоrtitude to say no, and the public deserves to be protected.”
{¶ 21} These judicial findings are consistent with the pre-Foster requirements of
{¶ 22} The Ohio Supreme Court in the Foster decision, in severing both
{¶ 23} Generally, under Anders, we would appoint new appellate counsel. However, as the appellant‘s sentence is contrary to law, we may take immediate action. State v. McGhee, 4th Dist. No. 04CA15, 2005-Ohio-1585, at ¶ 73; State v. Meyer, 6th Dist. No. WM-03-008, 2004-Ohio-5229, at ¶ 75. We hereby grant appellate counsel‘s motion to withdraw.
{¶ 24} On consideration whereof, the sentence of the of the Sandusky County Court is reversed and this cаse is remanded to the trial court for resentencing. The trial court is instructed to appoint new counsel to represent appellant. Appellee is ordered to pay the costs of this appeal pursuant to
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to
Singer, P.J. Skow, J. concur. Parish, J. con