STATE OF OHIO v. KENNETH EBBING
Appellate Case No. 28823
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 19, 2021
2021-Ohio-865
Trial Court Case No. 2019-CR-3189 (Criminal Appeal from Common Pleas Court)
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
K. GEORGE KORDALIS, Atty. Reg. No. 0089697, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On October 23, 2019, a Montgomery County grand jury returned an indictment charging Ebbing with one count of aggravated possession of drugs in violation of
{¶ 3} On April 30, 2020, Ebbing pled guilty as charged in the indictment and agreed to admit to the probation violation in Case No. 2018-CR-2681. Prior to Ebbing‘s entering his guilty plea, the trial court advised that it would sentence Ebbing to community control sanctions with the condition that Ebbing complete the MonDay Program. The trial court
{¶ 4} After Ebbing confirmed his understanding of the foregoing conditions, the trial court conducted a
{¶ 5} At sentencing, Ebbing informed the trial court that he had been accepted into the MonDay Program, but that he had decided he would rather serve six months in prison. However, after learning that he only had 24 days of jail-time credit, Ebbing quickly changed his mind and decided to enter the MonDay Program. Following that discussion, the trial court sentenced Ebbing to community control sanctions not to exceed five years with several general and special conditions, including that Ebbing complete the MonDay Program. As part of the sentence, the trial court ordered Ebbing‘s community control to be “terminated incomplete” once Ebbing completed the MonDay Program. However, if Ebbing violated the terms of his community control, the trial court advised that Ebbing would be sentenced to 12 months in prison. The trial court also terminated Ebbing‘s probation in Case No. 2018-CR-2681.
{¶ 6} Ebbing now appeals from his conviction for aggravated possession of drugs.
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 made that it offers a basis for reversal.” Id., citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4.
{¶ 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
First Potential Assignment of Error
{¶ 9} Under the first potential assignment of error, Ebbing‘s appellate counsel requests this court to review whether the trial court violated
{¶ 10} “Ohio‘s
{¶ 11} Pursuant to
(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.
{¶ 12} Generally speaking, “a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of
{¶ 13} The first exception is that the trial court must comply strictly with
{¶ 14} The second exception is that “a trial court‘s complete failure to comply with a portion of
{¶ 15} We have independently reviewed the plea hearing transcript in this case and find that the trial court fully complied with all the requirements under
{¶ 16} The trial court also advised Ebbing that if he were sentenced to community control sanctions and thereafter violated his community control, he could receive up to 12
{¶ 17} The trial court further notified Ebbing that following any prison sentence, he could receive a non-mandatory term of post-release control for a period of three years. The trial court explained that if Ebbing were to “violate any post-release control sanction or any law then the Adult Parole Board or parole authority may impose more restrictive sanctions, may increase the length of post-release control or could sentence [him] to a prison term of up to one-half the stated prison term for violations of post-release control.” Plea Hearing Trans. p. 6. See
{¶ 18} We have held that a trial court complies with
{¶ 19} Furthermore, Ebbing cannot demonstrate any prejudice arising from the trial court‘s failure to advise him of the nine-month-per-violation limitation. This is because the greatest possible prison term he could have received for his aggravated possession
{¶ 20} The record also indicates that the trial court failed to advise Ebbing that the trial court had discretion to impose a driver‘s license suspension for period of up to five years for his aggravated possession offense. See
{¶ 21} Based on the facts and law involved, no responsible contention can be made that any part of Ebbing‘s guilty plea offered a basis for reversal. Therefore, the first potential assignment of error raised by Ebbing‘s appellate counsel lacks arguable merit for appeal.
Second Potential Assignment of Error
{¶ 22} Under the second potential assignment of error, Ebbing‘s counsel requests
{¶ 23} When reviewing a felony sentence, we must apply the standard of review set forth in
{¶ 24}
{¶ 25} Pursuant to the Supreme Court of Ohio‘s recent decision in State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, ___ N.E.3d ___, when reviewing felony sentences that are imposed solely after considering the factors in
{¶ 26} Here, the trial court ordered Ebbing‘s community control sanctions not to exceed five years, which was within the range allowed by
{¶ 27} We also note that “‘[w]hen ordering community control sanctions,
{¶ 28} “‘[T]he tests for reasonableness of a [community control] sanction are those announced in State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990)] regarding reasonableness of a condition of probation.‘” Id. at ¶ 16, quoting State v. Lacey, 2d Dist. Montgomery No. 23261, 2009-Ohio-6267, ¶ 12. (Other citation omitted.) “In Jones, the Supreme Court of Ohio held that a trial court may impose conditions upon a defendant‘s probation that relate to the interests of doing justice, rehabilitating the offender, and insuring his good behavior.” Id. citing Jones at 52. “In making this determination, ‘courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.‘” Id. quoting Jones at 53.
{¶ 29} When considering the aforementioned factors in Jones, it cannot be said that the trial court‘s decision to have Ebbing complete the MonDay Program as a condition of his community control was unreasonable. The MonDay Program is a six-month
{¶ 30} Having reviewed the record, we find that there is no basis on which to modify or vacate Ebbing‘s sentence, and that no responsible contention can be made that any part of Ebbing‘s sentence offers a basis for reversal. Therefore, for the reasons outlined above, the second potential assignment of error raised by Ebbing‘s appellate counsel lacks arguable merit for appeal.
Conclusion
{¶ 31} In addition to reviewing the potential assignments of error raised herein, we have performed our duty under Anders to conduct an independent review of the record. After doing so, we have found no issues with arguable merit for Ebbing to advance on appeal. Therefore, we affirm the judgment of the trial court and grant counsel‘s request to withdraw from representation.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
K. George Kordalis
Kenneth Ebbing
Hon. Gerald Parker