STATE OF OHIO v. DANNIE R. JUSTICE
No. 106895
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 11, 2018
2018-Ohio-4119
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: October 11, 2018
Christopher M. Kelley
55 Public Square, Suite 2100
Cleveland, Ohio 44113
Also Listed:
Dannie R. Justice, pro se
Inmate No. A704816
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44905
ATTORNEY FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Dannie Justice (“appellant“), brings the instant appeal arguing the trial court erred by failing to merge allied offenses of similar import for sentencing purposes and challenging the sentence imposed by the trial court. Appellant‘s attorney, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), filed a motion to withdraw as counsel and dismiss the appeal. After a thorough examination of the record, we grant appointed counsel‘s motion to withdraw and dismiss the appeal.
I. Factual and Procedural History
{¶2} The instant matter arose from an August 12, 2017 incident during which appellant burglarized a home in Parma Heights, Ohio. Appellant was apprehended by officers who were responding to a call regarding appellant attempting to break into a vehicle of another individual on that same night. When stopped and questioned by the officers, appellant was intoxicated and observed to have fresh cuts on his wrists and knees. Aрpellant had in his possession an envelope containing cash and several prescription pill bottles, which were the same items missing from the burglarized victim‘s home. Further, appellant admitted tо officers that it was likely that he burglarized the home, and that he had been burglarizing homes since he was 12 years old.
{¶3} On September 8, 2017, in Cuyahoga C.P. No. CR-17-620495-A, appellant was indicted on the following charges: burglary, а second-degree felony in violation of
{¶4} The parties reached a plea agreement. On January 8, 2018, appellant pled guilty to an amended indictment. Pursuant to the plea agreement, Counts 3 and 4 were dismissed. Appellant pled guilty to an amended Count 1, burglary, a third-degree felony in violation of
{¶5} On February 7, 2018, the trial court held a sentencing hearing. Appellant‘s trial counsel argued that Counts 1 and 2 were allied offensеs of similar import and therefore should merge for the purposes of sentencing. Appellant‘s counsel further argued that Counts 5, 6, and 7 should merge as well. The state opposed appellant‘s trial counsel‘s arguments, contending that Counts 1 and 2 did not merge. The state conceded that Counts 5 and 6 did merge; however, the state argued that Count 7 did not merge.
{¶7} On March 5, 2018, appellant, through appointed counsel, filed an appeal challenging the trial court‘s judgment. On June 6, 2018, appointed counsel filed an Anders brief and a mоtion for leave to withdraw as counsel. Therein, appointed counsel identified three potential issues to raise on appeal: (1) whether the trial court erred in failing to merge apрellant‘s burglary and theft convictions as allied offenses of similar import; (2) whether the trial court erred in failing to merge appellant‘s criminal damaging, theft, and attempted grand theft convictions as allied offenses of similar import; and (3) whether the trial court erred in imposing a prison sentence. Counsel ultimately determined that proceeding with an appeal relating to the merger arguments or the trial court‘s sentence would be frivolous.
{¶8} On June 6, 2018, this court held counsel‘s motion to withdraw in abeyance pending an independent review of the record. This court allowed appellant to file a pro
II. Law and Analysis
{¶9} In Anders cases, we are charged with conducting an independent review of the record to determine
whether any issues involving potentially reversible error that are raised by appellate counsel or by a defendant in his pro se brief are “wholly frivolous.” * * * If 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.
(Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7. An appeal is frivolous if it “presents issues lacking in arguable merit. * * * An issuе lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.” (Citation omitted.) Id. at ¶ 8. After a review of the entire record, an аppellate court can thereafter dismiss an appeal. Anders, 386 U.S. at 744.
{¶10} We have examined and considered the potential arguments identified by appointed counsel regarding whether (1) the trial сourt erred by failing to merge the allied offenses for sentencing purposes, and (2) the prison sentence imposed by the trial court is contrary to law. Appellant‘s counsel submitted a brief outlining that the crimes are not allied offenses of similar import and therefore do not merge for the purposes of sentencing and that appellant‘s sentence is not contrary to law. Furthermore, wе have conducted an independent review of the record from the change of plea and sentencing hearings to determine if any arguably meritorious issues exist. Anders at 744.
{¶11} Our independent review indicates that the crimes are not allied offenses of similar import and thus do not merge for the purposes of sentencing. In particular, the burglary offense charged in Count 1 and the theft offense charged in Cоunt 2, are not allied offenses of similar import and do not merge for the purposes of sentencing. See
[a]s this court found in State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 5, “it is the intent to commit any criminal offense while trespassing that constitutes commission of the burglary crime. No criminal offense actually needs to be committed to support the burglary charge.” In short, a burglary is complete upon the defendant entering the premises with the intent to commit a crime therein.
State v. Yancey, 8th Dist. Cuyahoga No. 104587, 2017-Ohio-1040, ¶ 9; see also State v. Kibble, 8th Dist. Cuyahoga No. 104173, 2016-Ohio-8573, ¶ 14.
{¶12} The trial court did not err by failing to merge the criminal damaging offense charged in Count 7 with the attempted grand theft offense charged in Count 5 and the theft offense charged in Count 6. The offense оf criminal damaging was committed separately. More specifically, the criminal damaging offense was committed when appellant forcibly broke into the victim‘s vehicle, whereas the attеmpted grand theft and
B. Contrary to Law
{¶13} Our independent review also indicates that appellant‘s sentence is not contrary to law. A defendant does not have a constitutional right to appellate review of his or her criminal sentence. State v. Davis, 8th Dist. Cuyahoga No. 105404, 2017-Ohio-7483, ¶ 7, citing State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023, ¶ 12. “[T]he only right to aрpeal is the one provided by statute.” Akins at id. Appellant was sentenced on multiple offenses, and the trial court did not impose the maximum prison sentence of the highest degree of offense. Cоunt 1, burglary, a third-degree felony would carry a maximum prison sentence of five years given the facts of appellant‘s case and pursuant to
{¶14}
{¶15} We conclude that the trial court‘s sentences on the offenses to which appellant pled guilty are within the permissible statutоry ranges under
III. Conclusion
{¶17} We have performed our duty under Anders to conduct an independеnt review of the record. We have thoroughly reviewed the record and have found no nonfrivolous issues for review regarding merger or the trial court‘s sentence.
{¶18} Accordingly, appointed counsel‘s request to withdraw is granted, and the appeal is dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN T. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR