State v. CostlowState v. Costlow
Mary Elaine Hall
526 Superior Avenue, East
Cleveland, Ohio 44114
Also Listed:
Randy Costlow
Inmate No. 0281675
Bedford Heights City Jail
5661 Perkins Road
Bedford Heights, Ohio 44146
ATTORNEY FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Randy Costlow, appeals from a judgment sentencing him to 18 months in prison. Costlow‘s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking leave to withdraw as counsel because there are no meritorious, nonfrivolous issues for this court to review. We agree. Therefore, we dismiss Costlow‘s appeal and grant appointed counsel‘s motion to withdraw.
I. Anders Standard and Potential Issues for Review
{¶2} 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. Id. In this case, appointed counsel fully complied with the requirements of Anders.
{¶3} 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.;
{¶4} On June 5, 2018, this court ordered appointed counsel‘s motion be held in abeyance pending our independent review of the case. We further notified Costlow that he had until July 16, 2018, to file his own appellate brief, but he did not do so.
{¶5} Costlow‘s counsel has fully complied with the requirements of Anders and
Whether the trial court imposed an 18-month sentence upon the defendant-appellant, Mr. Randy Costlow, contrary to law.
{¶6} After conducting an independent review of Costlow‘s case, we dismiss his appeal and grant appointed counsel‘s motion to withdraw.
II. Procedural and Factual Background
{¶7} In Cuyahoga C.P. No. CR-16-605651-A, Costlow pleaded guilty to two counts of fifth-degree felony deception to obtain a dangerous drug and one count of fourth-degree felony deception to obtain a dangerous drug. Both the fourth- and fifth-degree felonies were violations of
{¶8} Costlow failed to report to the probation department in January 2017. A capias was issued for his arrest.
{¶9} One month later, in February 2017, Costlow took his father‘s car without his father‘s permission. He was later charged by way of information in Cuyahoga C.P. No. CR-17-616533-A with grand theft in violation of
{¶10} Costlow was placed on GPS monitoring on May 11, 2017, for both cases. On June 8, Costlow removed his GPS monitor and “absconded from the probation department during his report day.” A capias was issued for his arrest.
{¶11} On September 9, 2017, Costlow was back in custody. On September 29, 2017, Costlow pleaded guilty in Case No. CR-17-616533-A to attempted grand theft auto in violation of
{¶12} In Case No. CR-17-616533-A, the trial court sentenced Costlow to two years of community control sanctions for attempted grand theft and notified him that if he violated the terms of his sanctions, he would receive one year in prison.
{¶14} At the March 7 hearing, Costlow admitted to violating the terms of his community control sanctions in both common pleas court cases. The trial court terminated his community control sanctions in both cases. In Case No. CR-16-605651-A, the trial court sentenced Costlow to one year on each offense, and ordered the sentences to be served concurrent to each other but consecutive to the sentence in Case No. CR-17-616533-A.
{¶15} In CR-17-616533-A, the trial court sentenced Costlow to six months in prison and ordered that the sentence be served consecutive to the one year imposed in Case No. CR-16-605651-A, for an aggregate sentence in both cases of 18 months in prison.
III. Potential Assignment of Error
{¶16} In the potential assigned error, counsel argues that Costlow‘s 18-month sentence could be considered contrary to law. Although it is not entirely clear from counsel‘s brief, it appears that counsel is arguing that one could find the 18-month sentence contrary to law because the trial court failed to comply with
{¶17} We have reviewed the plea and sentencing hearings from both cases and agree with Costlow‘s counsel that the trial court complied with
A. Guilty Pleas
{¶18} When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶19} To ensure that a plea to a felony charge is knowingly, intelligently, and voluntarily entered into, a trial court must follow the mandates of
{¶20}
Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶21} In differentiating between constitutional rights and nonconstitutional rights under
B. Sentence
{¶22} An appellate court must conduct a meaningful review of the trial court‘s sentencing decision. State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 7.
{¶23} The Ohio Supreme Court has further explained:
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
{¶24} The trial court has the full discretion to impose any term of imprisonment within the statutory range, but it must consider the sentencing purposes in
{¶25} Under
{¶26} Under
{¶27} And, of course, the trial court must comply with all other relevant sentencing statutes. State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶ 10. As relevant to this case,
(1) If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender‘s probation officer, the sentencing court may impose upon the violator one or more of the following penalties:
* * *
(3) The prison term, if any, imposed upon a violator pursuant to division (B)(1) of this section shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(2) of section 2929.19 of the Revised Code. The court may reduce the longer period of time that the offender is required to spend under the longer sanction, the more restrictive sanction, or a prison term imposed pursuant to division (B)(1) of this section by the time the offender successfully spent under the sanction that was initially imposed.
C. Analysis
{¶29} When sentencing Costlow, the trial court considered the purposes and principles of felony sentencing and all of the relevant sentencing statutes when sentencing him, including
{¶30} Thus, we agree with Costlow‘s counsel that there are no meritorious, nonfrivolous issues for our review with respect to Costlow‘s plea or sentence. Accordingly, we conclude that this appeal is wholly frivolous and grant counsel‘s motion to withdraw.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR