STATE OF OHIO v. MATTHEW J. RUSH
Appellate Case No. 2015-CA-54
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
July 8, 2016
2016-Ohio-4895
WELBAUM, J.
Triаl Court Case No. TRC1503124A (Criminal Appeal from Municipal Court)
Rendered on the 8th day of July, 2016.
BETSY DEEDS, Atty. Reg. No. 0076747, Prosecuting Attorney, City of Fairborn, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
SCOTT A. ASHELMAN, Atty. Rеg. No. 0074325, P.O. Box 752345, Dayton, Ohio 45475 Attorney for Defendant-Appellant
{1} Defendant-appellant, Matthew J. Rush, appeals from the conviction and sentence he received in the Fairborn Municipal Court after pleading guilty to one count of operating a vehicle while under the influence of drugs or alcohol (OVI). In proceeding with the appeal, Rush‘s assigned counsel filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating there are no issues with arguable merit to prеsent on appeal. After conducting a review as prescribed by Anders, we also find no issues with arguable merit. Accordingly, the judgment of the trial court will be affirmеd.
{2} On April 18, 2015, Rush was charged with two OVI counts, one in violation of
{3} Prior to Rush‘s guilty рlea, the trial court engaged in a plea colloquy that complied with the requirements set forth for “petty offense” misdemeanors under
{4} After accepting Rush‘s plea and finding him guilty, the trial court sentenced Rush to 180 days of jail with 100 days susрended on the condition that he not commit a similar violation within three years. As for the remaining 80 days, the trial court ordered Rush to serve 20 days in jail and 60 days оn house arrest with an alcohol monitor and work release. The trial court also imposed a $450 fine, suspended Rush‘s driver‘s license for three years with driving privileges via an interlock device, and placed him on up to three years of supervised community control that included drug and alcohol treatment.
{5} On September 11, 2015, Rush filed a notice of appeal from his conviction and sentence and requested the appointment of appеllate counsel. Following the appointment of counsel, on February 26, 2016, Rush‘s appellate counsel filed an Anders brief indicating that there were no issuеs with arguable merit to present on appeal. On March 3, 2016, we notified Rush that his counsel found no meritorious claim for review and granted him 60 days to file a pro se brief assigning any errors. Rush did not file a pro se brief.
{6} Our task in this case is to conduct an independent review of the record as prescribed by Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. In Anders cаses, the appellate court must conduct a thorough examination of the proceedings to determine if the appeal is actually frivolous, and if it is, the court may “grant counsel‘s request to
{7} In conducting our independent review, Rush‘s appellate counsel has requested that we consider the following potential assignment of error:
APPELLANT‘S SENTENCE WAS SO HARSH AND ARBITRARY AS TO CONSTITUTE AN ABUSE OF DISCRETION BY THE TRIAL COURT.
{8} We apрly an abuse of discretion standard of review to a suggestion that misdemeanor sentences are excessive. State v. Fankle, 2015-Ohio-1581, 31 N.E.3d 1290, ¶ 18 (2d Dist.), citing State v. Peagler, 2d Dist. Montgomery No. 24426, 2012-Ohio-737, ¶ 3. An abuse of discretion implies that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. (Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Cоrp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is to be expected that most instances of abuse of discretion will result in
{9} When sentеncing for a misdemeanor offense, a trial court is guided by the “overriding purposes of misdemeanor sentencing,” which are to protect the publiс from future crime by the offender and others and to punish the offender.
{10} “A trial court is also required to consider the nature and circumstаnces of the offense, whether there was a history of persistent criminal activity or character that reveals a substantial risk of the offender сommitting another offense, and numerous other factors related to the offender and the offense.” Collins at ¶ 10, citing
{11} In this case, Rush‘s sentence is within the permissible stаtutory limits provided for in
{12} Although the trial court did not specify its reasons for imposing the sentenсe that it did, in light of the record, we cannot say the sentence was an abuse of discretion. The record indicates that Rush has three prior OVI conviсtions that involved collisions and an ongoing struggle with addiction. The record further indicates that at the time of the OVI offense at issue, Rush had a blood-alcohol concentration of .167, which is twice the legal limit. Based on these facts, we agree with counsel that the potential assignment of error claiming an abuse of discretion at sentencing lacks arguable merit.
{13} Having independently reviewed the record as required by Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we have found no non-frivolous issues for appeal. Accordingly, the judgment of the trial court is affirmed.
FROELICH, J. and HALL, J., concur.
Betsy Deeds
Scott A. Ashelman
Matthew J. Rush
Hon. Beth W. Root