STATE OF OHIO v. ANTONE G. DORSEY
Appellate Case No. 28747
Trial Court Case No. 2019-CR-4038
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 15, 2021
[Cite as State v. Dorsey, 2021-Ohio-76.]
WELBAUM, J.
(Criminal Appeal from Common Pleas Court)
Rendered on the 15th day of January, 2021.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, 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
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant
Facts and Course of Proceedings
{¶ 2} On January 6, 2020, a Montgomery County grand jury returned an indictment charging Dorsey with one count of trespass in a habitation in violation of
{¶ 3} The charges arose after Dorsey encountered a Vandalia police officer at a gas station on the morning of December 8, 2019. The officer was called to investigate a report of a suspicious vehicle parked at one of the gas station‘s pumps for approximately an hour. When the officer approached the vehicle, he observed a male, later identified
{¶ 4} On February 21, 2020, Dorsey entered into a plea agreement with the State whereby he agreed to plead guilty to an amended charge of attempted trespass in a habitation in violation of
{¶ 5} At sentencing, the trial court ordered Dorsey to serve nine months in prison with 89 days of jail time credit. The trial court also ordered Dorsey to pay court costs. In issuing its sentencing decision, the trial court advised Dorsey that he was not eligible for the TCAP (“Targeted Community Alternatives to Prison“) program under
{¶ 6} Dorsey now appeals from his conviction. As previously noted, Dorsey‘s appellate counsel filed an Anders brief asserting the absence of any non-frivolous issues for appeal.
Standard of Review
{¶ 7} Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this court must conduct an independent review of the record to determine if the appeal at issue is wholly frivolous. Id. at 744. ”Anders equates a frivolous appeal with one that presents issues lacking in arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n issue lacks arguable merit if, on the facts and law involved, no responsible contention can be
{¶ 8} If we determine the appeal is frivolous, we may grant counsel‘s request to withdraw and then dismiss the appeal without violating any constitutional requirements, or we can proceed to a decision on the merits if state law requires it. State v. McDaniel, 2d Dist. Champaign No. 2010-CA-13, 2011-Ohio-2186, ¶ 5, citing Anders at 744. However, “[i]f we find that any issue presented or which an independent analysis reveals is not wholly frivolous, we must appoint different appellate counsel to represent the defendant.” Marbury at ¶ 7, citing Pullen.
Law and Analysis
{¶ 9} As previously noted, Dorsey‘s appellate counsel filed an Anders brief asserting the absence of any issues with arguable merit for appeal. Rather than raising any potential assignments of error for this court to review, counsel simply discussed why Dorsey‘s guilty plea and sentence were valid.
{¶ 10} With regard to Dorsey‘s guilty plea, Dorsey‘s counsel concluded that the transcript of Dorsey‘s plea hearing reflects that the trial court complied with all the requirements for accepting guilty pleas in
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) 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.
{¶ 11} Here, the record of the plea hearing establishes that the trial court ensured that Dorsey‘s plea was being made voluntarily and that Dorsey understood the nature of the attempted trespass in a habitation charge for which he was pleading guilty. The trial court also correctly advised Dorsey of the maximum possible penalty he could receive for his offense, which included a 12-month prison sentence, non-mandatory post-release control for up to three years, a $2,500 fine, and payment of court costs and any restitution.
{¶ 13} For the foregoing reasons, we agree with counsel that the record of the plea hearing establishes that the trial court complied with all the requirements under
{¶ 14} Dorsey‘s counsel also concluded that Dorsey‘s sentence was not contrary to law. When reviewing a felony sentence we must apply the standard of review set forth in
{¶ 15} Here, the trial court was not required to make any findings under the relevant statutes enumerated in
{¶ 16} Previously, when reviewing sentences that only required the trial court to consider the factors in
[I]t is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in
R.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.
{¶ 17} Recently, however, in State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __, the Supreme Court of Ohio indicated that the aforementioned language in Marcum was dicta. Id. at ¶ 27. In Jones, the court held that ”
{¶ 18} As a result of the Supreme Court‘s holding in Jones, when reviewing felony sentences that are imposed solely after considering the factors in
{¶ 19} In this case, Dorsey‘s nine-month prison sentence was within the authorized statutory range for fifth-degree felonies, see
{¶ 20} We also note that the trial court‘s TCAP eligibility determination was not contrary to law.
{¶ 21} For the foregoing reasons, we agree with counsel‘s conclusion that Dorsey‘s sentence is not contrary to law and that there are no issues with arguable merit for appeal.
Conclusion
{¶ 22} After conducting an independent review of the record as required by Anders, we find that, based on the facts and relevant law involved, there are no issues with arguable merit to present on appeal. Therefore, the judgment of the trial court is affirmed.
HALL, J., concurs.
FROELICH, J., concurs in judgment:
I write separately to express concern about the breadth of the recent holding in Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __. However, in this case, even any arguable issue regarding sentencing (as opposed to other matters) is moot based on Dorsey‘s having completed his sentence.
Mathias H. Heck, Jr.
Andrew T. French
Kristin L. Arnold
Antone G. Dorsey
Hon. Mary Katherine Huffman