State v. JonesState v. Jones
* * * * *
Thоmas L. Stierwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Jeffrey A. Kane, for appellant.
* * * * *
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Paink Jones, Jr., appeals the June 15, 2009 judgment of the Sandusky County Court of Common Pleas convicting him of the offense of driving while intoxicated, a felony of thе fourth degree, and sentencing him to serve a term of 30
{¶ 2} Appointed counsel has submitted a request to withdraw pursuant to Anders v. California (1967), 386 U.S. 738. In a brief filed on appellant‘s behalf, appointed counsel sets forth one proposed assignment of error. In support of the request to withdraw, counsel for appellant states that, based on the trial court record and the presentence investigation report, he was unable to find the court abused its discretion.
{¶ 3} Anders, supra, and State v. Duncan (1978), 57 Ohio App.2d 93, set forth the proсedure to be utilized by an appointed counsel who desires to withdraw based upon the lack of a meritorious, appealablе issue. In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines it to be wholly frivоlous, he or she “should so advise the court and request permission to withdraw.” Anders at 744. An Anders request must be accompanied by a brief referring to anything in the reсord that could arguably support an appeal. Id.
{¶ 4} In the course of seeking an Anders withdrawal, counsel must also furnish the client with a copy of the brief, the request to withdraw, and notify the client that he has the right to raise any matters that the client wishes to proffer on a pro se basis. Once these prerequisite criteria have been satisfied, the appellate court must conduct a full examination of proceedings from below in order to dеtermine if the appeal is frivolous. If it is determined that the appeal is frivolous, then the appellate court may grant
{¶ 5} In the case before us, appointed counsel for appellant has satisfied the requirements delineated in Anders, supra. This court further finds that aрpellant was properly notified by counsel of his right to file a brief; however, no pro se brief was filed.
{¶ 6} Accordingly, this court shall proceed with an examination of the sole potential assignment of error proposed by counsel for appellant and the record from below in order to determine if this appeal lacks merit and is, therefore, wholly frivolous.
{¶ 7} Counsel for appellant sets forth the following proposed assignment of error:
{¶ 8} “Did the trial Court abuse its discretion in sentencing the Defendant to a maximum sentence?”
{¶ 9} On October 31, 2008, apрellant was arrested on a charge of driving while intoxicated. Appellant was subsequently indicted on December 30, 2008, on one count of driving while intoxicated, a violation of
{¶ 10} On March 30, 2009, however, appellant appеared in open court, withdrew his earlier plea and entered a plea of guilty to one count of
{¶ 11} In the sole рroposed assignment of error, it is contended that the trial court abused its discretion in imposing the maximum sentence of 30 months of imprisonment.
{¶ 12} Aрpellant pled guilty and was sentenced after the issuance of the Supreme Court of Ohio‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. After Foster, “trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at ¶ 100. “Since Foster, trial courts no longer must navigate a series of criteria that dictate the sentence and ignore judicial discretion.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 25.
{¶ 13} Under Foster, sentencing courts are to continue to consider “the statutory considerations” or “factors” in the “general guidаnce statutes” in imposing sentences, as these statutes do not include a “mandate for judicial fact-finding.” Foster at ¶ 36-42.
{¶ 14} We further note that “[a] trial court‘s discretion to impose a sentence within the statutory guidelines is very broad and an appellate court cannot hold that a trial court abused its discretion by imposing a sevеre sentence on a defendant where that sentence is within the limits authorized by the applicable statute.” State v. Harmon, 6th Dist. No. L-05-1078, 2006-Ohio-4642, ¶ 16, citing Harris v. U.S. (2002), 536 U.S. 545, 565. State v. Friess, 6th Dist. No. L-05-1307, 2007-Ohio-2030, ¶ 6.
{¶ 15} In imposing sentence, the trial court reviewed appellant‘s long criminal history and other items in the presentence investigation report and determined that aрpellant was not amenable to an available community control sanction. The court then sentenced appellant to a term of 30 months incarceration, a term within the statutory guidelines for driving while intoxicated, a fourth degree felony.
{¶ 16} Upon our own independent review of the record, we find no other grounds for a meritorious appеal. This appeal is found to be without merit and wholly frivolous. Appellate counsel‘s motion to withdraw is found well-taken and is hereby granted.
{¶ 17} On consideration whereof, this court finds that appellant was not prejudiced or prevented from having a fair proceeding and the judgment оf the Sandusky County
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Arlene Singer, J.
Keila D. Cosme, J.
CONCUR.
_______________________________
JUDGE
_______________________________
JUDGE
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.