State of Ohio v. Darrell Reid
Court of Appeals No. L-18-1001
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: December 28, 2018
2018-Ohio-5287
Trial Court No. CR0201702431
Emil G. Gravelle III, for appellant.
DECISION AND JUDGMENT
MAYLE, P.J.
{¶ 1} Appellant Darrell Reid appeals the December 28, 2017 “Nunc Pro Tunc Judgment Entry” of the Lucas County Court of Common Pleas sentencing him to 17 months of incarceration following his domestic violence conviction. Finding no error, we affirm.
{¶ 2} On August 17, 2017, Reid was indicted on a single count of domestic violence, in violation of
{¶ 3} A change of plea hearing was held on December 4, 2017. The parties reached an agreement whereby the state downgraded the charge, from a third degree to a fourth-degree charge of domestic violence, in exchange for Reid‘s no contest plea. The court engaged in a colloquy with Reid to ensure that he understood that, by pleading no contest, he was waiving his constitutional and statutory rights, as set forth in
{¶ 4} The state then proffered the following evidence: On or about August 11, 2017, Reid was cohabitating with his then-girlfriend, “W.C.,” at Reid‘s home in Toledo. On that date, Reid picked up W.C. from a nearby house party, and the two argued while inside Reid‘s car. During the argument, Reid choked W.C., pulled out clumps of her hair, and punched her in the face several times. W.C. called the police from a gas station. When police officers arrived, they observed injuries to W.C.‘s head that included
{¶ 5} At the December 20, 2017 sentencing hearing, Reid‘s attorney asked the court to consider several mitigating factors, including a history of substance abuse and a 2012 diagnosis of “major depressive disorder with psychotic features.” He added that Reid was facing financial ruin, caused by his inability to tend to his two small businesses (a funeral monument company and a rental property business) while he awaited trial in jail. Counsel requested community control and a complete mental health assessment. For his part, Reid admitted that he “wasn‘t taking [his] meds” on the day of the offense, but he denied that “it was a medical thing.” He added that while he “chose to make the wrong decision in the heat of the moment, * * * the criminal part of me is gone.” He reminded the court that he had complied, from his jail cell, with the temporary protection order that barred him from contacting W.C.
{¶ 6} After hearing from counsel and Reid, the court reviewed the record. Based upon Reid‘s “atrocious” criminal history―that included 11 prior felonies and 50 misdemeanors―as well as the parties’ oral statements to the court, the victim impact statement, and the court‘s presentence report, the court concluded that prison was
Request to Withdraw
{¶ 7} On May 16, 2018, Reid‘s counsel filed a request to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel asserted that, after thoroughly reviewing the transcript of the proceedings in the trial court and the applicable case law, she could find no meritorious assignments of error to present for review.
{¶ 8} On June 29, 2018, we released State v. Wenner, 6th Dist. Sandusky No. S-18-004, 2018-Ohio-2590, in which this court pronounced that it will no longer accept Anders briefs in criminal appeals. Nevertheless, because the appeal was filed before Wenner, we will proceed with the process and role customarily undertaken pursuant to Anders.
{¶ 9} The procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the United States Supreme Court found that if counsel, after a conscientious examination of the case, determines it to be wholly frivolous, counsel should so advise the court and request permission to withdraw. Anders at 744. The request must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. In addition,
{¶ 10} Pursuant to Anders, counsel‘s motion was accompanied with a legal memorandum that included a “possible assignment of error.” Counsel also filed an affidavit indicating that she had provided Reid with a copy of the motion to withdraw and legal memorandum and informed Reid of the deadline for him to file his own brief in support of the appeal. Reid did not file a brief.
Possible Assignment of Error No. 1: Appellant‘s sentence is contrary to law.
Law and Analysis
{¶ 11} We first address an error that is apparent on the face of the December 28, 2017 sentencing entry. It states that Reid pled no contest and was found guilty of domestic violence, “a violation of
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
(3) * * * [I]f the offender previously has pleaded guilty to or been convicted of domestic violence, * * * a violation of division (A) * * * of this section is a felony of the fourth degree * * *.
{¶ 12} The prosecutor‘s statement at the plea hearing clearly shows that the state intended to amend the charge to section (D)(3) (“It‘s the state‘s understanding that the defendant will enter a no contest plea to amended Count I of the indictment, domestic violence, a fourth degree felony, and that‘s effectuated by deleting the reference to one of the two prior domestic violence convictions.“). Likewise, Reid articulated at the hearing that he agreed to plead no contest to “the amended charge of domestic violence, a felony of the fourth degree.” Finally, the trial court‘s sentence of 17 months in jail is commensurate with a fourth-degree felony conviction. See
{¶ 13} Based upon all of the above, we conclude that the sentencing entry‘s reference to ”
{¶ 14} Next, we review counsel‘s possible assignment of error, in which he claims that his sentence was contrary to law. We review felony sentencing challenges under
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶ 15} We first note that none of the five statutes that are referenced in subsection (a), i.e.,
{¶ 17}
{¶ 18}
{¶ 19}
{¶ 20} Thus, our focus is limited to
{¶ 21} Here, as discussed, Reid‘s 17-month prison sentence is within the statutorily permissible range. See
{¶ 23} In light of the statements at the hearing, as well as the language expressed in the sentencing entry, we conclude that the trial court complied with all applicable sentencing requirements. Accord State v. Highsmith, 6th Dist. Lucas Nos. L-16-1183, L-16-1184, 2018-Ohio-620; see also State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000) (A sentencing court is not required to use any specific language or make specific findings to demonstrate that it considered the applicable sentencing criteria.). Therefore, we find that Reid‘s sentence is not clearly and convincingly contrary to law under
Conclusion
{¶ 25} Reid‘s possible assignment of error is not well-taken. But, we nonetheless remand this matter for the limited purpose of correcting the typographical error set forth in the sentencing entry, as described herein. Reid‘s conviction and sentence are affirmed in all other respects. Counsel‘s request to withdraw is hereby granted. Reid is ordered to pay the costs of this appeal pursuant to
Judgment affirmed, in part, and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Christine E. Mayle, P.J. CONCUR.
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.supremecourt.ohio.gov/ROD/docs/.