STATE OF OHIO, Plaintiff-Appellee v. JAMES LEE KENDALL, Defendant-Appellant
Appellate Case No. 2019-CA-5
Trial Court Case No. 2018-CR-209 (Criminal Appeal from Common Pleas Court)
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
Rendered on the 12th day of July, 2019.
[Cite as State v. Kendall, 2019-Ohio-2836.]
FROELICH, J.
Attorney for Plaintiff-Appellee
BYRON K. SHAW, Atty. Reg. No. 0073124, 4800 Belmont Place, Huber Heights, Ohio 45424
Attorney for Defendant-Appellant
{¶ 1} James Lee Kendall pled guilty in the Champaign County Court of Common Plea to one count of domestic violence, in violation of
I. Anders Appeal Standard
{¶ 2} Kendall‘s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he found “no valid appellate issues.” Counsel stated that Kendall‘s plea and conviction “involved a plea that was knowingly, intelligently, and voluntarily given with full understanding of his constitutional rights prior to sentencing accordingly.” We informed Kendall that his attorney had filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se brief. To date, no pro se brief has been filed.
{¶ 3} Pursuant to Anders, we must determine, “after a full examination of all the proceedings,” whether the appeal is “wholly frivolous.” Id. at 744; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous merely because the prosecution can be expected to present a strong argument in reply. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that presents issues lacking arguable merit, which means that, “on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing
II. Factual and Procedural History
{¶ 4} According to the municipal court complaint, at 10:54 a.m. on Tuesday, November 6, 2018, two Urbana police officers responded to the residence of Andrea Huffman, with whom Kendall has a minor child. When the officers arrived, they saw Huffman shoving Kendall out the back screen door of her home. Kendall told the officers that Huffman was “crazy.” The officers noticed that Kendall was unsteady on his feet and had a strong odor of an alcoholic beverage coming from his person. Approximately a week prior to this incident, the officers had told Kendall that Huffman did not want him at her house, and the officers inquired why Kendall had returned. Kendall reported that Huffman had called him and asked him to come over.
{¶ 5} One of the officers spoke with Huffman in her residence. The officer observed that a coffee table and the dining room table were flipped over, a tub of Halloween decorations was dumped on its side, and a cabinet in the dining room was “shoved over.” Huffman reported that she had gotten out of the shower and found Kendall sitting in her kitchen; she had not invited him over. She told the officer that Kendall “keeps coming to my house and just walking in.” Kendall had told Huffman that he wanted to see his daughter, who was at school. Huffman stated to the officer that, when she had asked Kendall to leave, Kendall began arguing with her and starting flipping over furniture. Huffman also reported that Kendall threw a Halloween decoration at her,
{¶ 6} The officers arrested Kendall and charged him with domestic violence, burglary, and criminal damaging. In December 2018, Kendall was indicted for burglary with a specification that he had a prior conviction for burglary, and for domestic violence with a specification that he had three prior convictions for domestic violence. The trial court set a $20,000 cash or surety bond; it denied Kendall‘s subsequent request for a personal recognizance bond or a reduction in bond. Kendall remained in custody while his case was pending.
{¶ 7} A jury trial was scheduled for January 29, 2019. At a January 3, 2019 pretrial conference, the parties indicated that they wished to have a plea hearing. At the time, Kendall pled guilty to domestic violence as a third-degree felony; pursuant to the parties’ agreement, the State requested dismissal of the burglary charge. The trial court ordered a presentence investigation.
{¶ 8} On January 28, 2019, the trial court sentenced Kendall to a maximum 36-month sentence; the trial court informed Kendall that he would receive 84 days of jail time credit. The court told Kendall that he “may be eligible to earn days of credit for productively participating in certain prison programming.” The court recommended that Kendall serve a risk reduction sentence if he were eligible for the program, but stated that it did not recommend and disapproved of Kendall‘s placement in an intensive program
In addition, the Court would favorably consider you to judicial release to the West Central Community-Based Correctional Facility Program after you‘ve served 12 months of your sentence. And as long as you‘ve not committed prison rule infractions to such a degree that the Court finds that you would not be amendable to community control.
The court explained its reasons for considering judicial release, stating that it was trying to balance the facts that (1) Kendall engages in behavior that makes people feel unsafe, (2) he threatens their lifestyle and the safety and security of their household, and (3) he wants treatment, is willing to engage in treatment, and the court believed he was a good candidate for treatment. Upon inquiry from the prosecutor, the court clarified that the 12-month period would include Kendall‘s time in jail while his case was pending.
{¶ 9} The trial court ordered Kendall to pay court costs and the cost of his legal fees and expenses. It indicated that “[t]here will be a Court order to withhold funds from your inmate account to pay off your court costs and legal fees.”
{¶ 10} The court‘s written judgment entry was consistent with its oral sentence.
III. Anders Review
A. Pretrial Matters
{¶ 11} As an initial matter, we find no non-frivolous issues related to the events prior to Kendall‘s guilty plea. A plea of guilty is a complete admission of guilt. E.g., State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3;
B. Kendall‘s Guilty Plea
{¶ 12}
{¶ 13} The Supreme Court of Ohio has urged trial courts to comply literally with
* * * But “[w]hen the trial judge does not substantially comply with Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule.” (Emphasis sic.) Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 32. “If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect.” Id. But if the trial court completely failed to comply with the rule, the plea must be vacated. Id. Complete failure ” ‘to comply with the rule does not implicate an analysis of prejudice.’ ” Id., quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
Bishop at ¶ 19. See also State v. McGlinch, 2019-Ohio-1380, __ N.E.3d __, ¶ 28 (2d Dist.).
{¶ 14} We have reviewed the transcript of the plea hearing. The record reflects that the trial court fully complied with its obligations under
C. Kendall‘s Sentence
{¶ 15} In reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 16} “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
{¶ 17} At the beginning of the sentencing hearing, the trial court indicated that it had reviewed the presentence investigation report (PSI) and the State‘s sentencing memorandum, which included photographs of the condition of Huffman‘s apartment after the incident. The State requested at the sentencing hearing that the court impose a 36-month sentence, emphasizing Kendall‘s criminal history and the fact that Kendall had
{¶ 18} Huffman provided a brief statement at the sentencing hearing, telling the court that Kendall was an alcoholic who needed treatment and that he was “a good person” when he was sober.
{¶ 19} Defense counsel requested community control for Kendall. Counsel acknowledged that Kendall had been to prison previously, but stated that Kendall was trying to obtain inpatient treatment. Counsel argued that Kendall “understands the pattern of his behavior * * * [, that] he has a substance abuse problem * * * [and] that the victim in this case did not deserve that kind of treatment. The victim did not deserve hi[s] barging into her house and frightening her.” Counsel asked the court to consider placement at West Central for treatment.
{¶ 20} Kendall read a prepared statement. He expressed that he (now 50 years old) had been drinking since he was 15 years old. He acknowledged that he has been “in and out of trouble with the law since about the age of 18” and that his offenses were always alcohol-related. Kendall described his efforts to obtain sobriety, including inpatient hospitalizations and Vivitrol shots, and his successes and relapses. Kendall asked for the chance to “get back on that horse again.” He stated, “I want to get off alcohol for good.”
{¶ 21} The trial court then spoke with Kendall about his prison record and the circumstances of his past domestic violence offenses. The circumstances of his prior domestic violence convictions were similar to those involved in this case; Huffman also was a victim of one of his prior domestic violence offenses. The court told Kendall that
{¶ 22} After speaking with Kendall, the court indicated that it had considered the PSI, the State‘s sentencing memorandum, the statements of counsel and Kendall, and the court‘s interaction with Kendall. The court noted that Kendall had a high Ohio Risk Assessment Score, while recognizing that ORAS “is merely a tool that Courts are to use.” The court stated that it had considered the purposes and principles of sentencing, and it evaluated and discussed seriousness and recidivism factors. The court stated that it had also considered Kendall‘s present and future ability to pay financial obligations, finding Kendall to be employable and in good health. The court then imposed 36 months in prison and ordered Kendall to pay court costs and the cost of his legal fees and expenses.
{¶ 23} Kendall‘s appellate counsel has identified no potential assignments of error arising from Kendall‘s prison sentence, and our review of the record also has disclosed none. Kendall has an extensive misdemeanor criminal record dating back to 1987; many of those offenses involved disorderly behavior or the use of drugs or alcohol. Kendall was convicted of domestic violence in 2003 (first-degree misdemeanor), 2005 (fourth-degree felony), and 2010 (fourth-degree felony), along with other offenses. He served two years in prison for the 2005 case and 18-months in prison for the 2010 case; both of those cases involved Kendall‘s breaking into his girlfriend‘s residence, damaging property, and assaulting his girlfriend. The trial court had discretion to impose a maximum 36-month prison term for Kendall‘s third-degree felony domestic violence
{¶ 24} Moreover, we find no arguably meritorious claim that the court erred in ordering Kendall to pay court costs and legal fees and expenses. Kendall has a GED and the PSI reflects that Kendall has obtained employment in the past. He was most recently employed in 2018. The court found that Kendall had a present and future ability to pay financial sanctions, and we find any claim regarding that determination to be frivolous.
{¶ 25} The trial court disapproved of Kendall‘s placement in an intensive program prison (IPP). Pursuant to
{¶ 26} Any error in the disapproval of IPP is necessarily harmless, however, when the defendant is not eligible for IPP. E.g., State v. Felton, 2d Dist. Montgomery No. 27239, 2017-Ohio-761, ¶ 29; State v. Walz, 2d Dist. Montgomery No. 23783, 2012-Ohio-4627, ¶ 26.
{¶ 28} Finally, the court‘s judgment entry included an order for the withholding of funds from Kendall‘s inmate account. Specifically, the entry reads:
Pursuant to
OAC §5120-5-03(B) , the Champaign County Clerk of Courts is ORDERED to provide the Ohio Department of Rehabilitation and Correction with a certified copy of judgment of the Defendant‘s total amount of financial obligations due and owing (i.e., restitution, court costs, fines, and court-appointed legal fees and expenses) as set forth within this Journal Entry.* * *
Pursuant to
OAC §§5120-5-03(D) and(E) ,OAC §§ 5120-3-09(A)(1) and(2) , andR.C. §5145.15(C)(8)(b)(i) , the Ohio Department of Rehabilitation and Correction is ORDERED to WITHHOLD funds from the Defendant‘s inmate account in such amounts as provided by the Ohio Administrative Code and Ohio Revised Code cited herein, and DISTRIBUTE said funds to the Champaign County Clerk of Courts until sufficient funds have been paid to fully satisfy the financial obligations due and owing in the certificate of judgment.The Clerk of Courts shall apply any monies received from the Ohio Department of Rehabilitation and Correction to restitution, court costs, fines,
and court-appointed legal fees and expenses in that order.
(Emphasis sic.)
{¶ 29}
{¶ 30} In State v. Skirvin, 2d Dist. Champaign No. 2017-CA-26, 2019-Ohio-2040, we found language similar to that in Kendall‘s judgment entry to be an appropriate method for collecting court costs and court-appointed counsel fees. See id. ¶ 19-24. In light of that opinion, we find no non-frivolous claim related to the court‘s order regarding the collection of Kendall‘s financial obligations (i.e., court costs and legal fees and expenses).
IV. Independent Review
{¶ 31} We have examined the entire record and conducted our independent review in accordance with Penson, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We agree with appellate counsel that no non-frivolous issues exist for appeal. Accordingly, the trial court‘s judgment will be affirmed.
DONOVAN, J. and TUCKER, J., concur.
Kevin Talebi
Byron K. Shaw
James Lee Kendall
Hon. Nick A. Selvaggio