STATE OF OHIO v. JUSTIN K. SMITH
Appellate Case No. 28417
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
January 31, 2020
2020-Ohio-304
TUCKER, J.
Trial Court Case No. 2018-CR-4830; (Criminal Appeal from Common Pleas Court)
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Rendered on the 31st day of January, 2020.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio 45459
Attorney for Defendant-Appellant
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TUCKER, J.
Facts and Procedural History
{¶ 2} During a bench trial in a separate case, Montgomery C.P. No. 2018-CR-1861, Smith failed to return to court following a recess, and he absconded.1 Smith‘s bond in that case had included electronic home detention (EHDP), and he cut and removed the EHDP monitoring bracelet he was required to wear so that his location could not be tracked. Smith was later located and arrested in Florida and returned to
{¶ 3} Upon Smith‘s arrest in Case No. 2018-CR-1861, the State obtained his “smart phone,” and a search warrant was obtained to allow an examination of the phone‘s content. The phone was passcode protected, and, because of this, the phone was sent to federal authorities, who had the equipment and expertise to unlock Smith‘s phone. The phone was not unlocked before the trial in Case No. 2018-CR-1861. But, upon the phone being unlocked, the State discovered videos that Smith had sent to the minor victim, C.B., and that C.B. had sent to him.
{¶ 4} Smith was indicted on 41 felony counts relating to his absconding, the theft/destruction of his electronic monitoring device, and the videos discovered on his phone. Smith filed a motion to suppress the materials discovered on the phone. The trial court conducted a suppression hearing, but before it ruled on the motion, the parties reached a plea agreement. Smith pleaded guilty to 20 counts, and the remaining 21 counts were dismissed. The 20 counts to which Smith pleaded guilty were as follows: Count 1, failure to appear, a felony in the fourth degree; Count 3, theft (EHDP bracelet), a felony in the fifth degree; Counts 13 through 22, disseminating matter harmful to juveniles, felonies of the fifth degree; Counts 34, 36, 38, 39, and 40, pandering sexually oriented matter/obscenity involving a minor, felonies of the fourth degree; Counts 35 and 37, illegal use of a minor in nudity oriented material, felonies of the fourth degree; and Count 41, pandering obscenity involving a minor, a felony of the second degree. There was no agreement regarding Smith‘s sentence.
{¶ 5} Following completion of a presentence investigation (PSI), the trial court conducted a sentencing hearing. The trial court sentenced Smith to an aggregate prison
{¶ 6} Smith was appointed appellate counsel who, as noted, has filed a brief pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. As part of the Anders brief, counsel has requested leave to withdraw as Smith‘s attorney. Smith was notified of his right to file a pro se brief within 60 days of the Anders notification. Smith has not filed a brief.
Anders Standard
{¶ 7} Upon the filing of an Anders brief, an appellate court has a duty to determine, “after a full examination of the proceedings,” whether the appeal is, in fact, “wholly frivolous.” Id. at 744; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one about which, “on the facts and law involved, no responsible contention can be made that offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders brief and appoint new counsel to represent the appellant.
Anders Analysis
{¶ 8} Counsel, consistent with his duties under Anders, has identified two potential assignments of error as follows:
(1) [W]hether * * * Smith‘s plea was entered voluntarily and knowingly when considering the [t]rial [c]ourt made a vague indication as to its potential decision in regards to the [m]otion to [s]uppress, but without a ruling on such prior to the plea; and
(2) [W]hether the trial court erred by imposing [an] excessive sentenc[e] in light of * * * Smith‘s constitutional right to be free from cruel and unusual punishment.
{¶ 9} Turning to the first suggested error, the trial court informed Smith at the plea hearing that its decision on the suppression motion had not been completed, but that it would overrule the suppression motion. The record also reflects that the State‘s offer was contingent upon Smith entering guilty pleas to the 20 counts, and Smith was informed that by pleading guilty, the suppression ruling, were it issued before the guilty pleas were entered, could not be attacked on appeal. Finally, Smith was informed, more than once, that he could defer his plea decision until the ruling on the motion to suppress was filed. In possession of the indicated information, Smith decided to immediately accept the State‘s offer, and he pleaded guilty to the 20 felony counts. The first suggested
{¶ 10} Any argument that Smith‘s plea otherwise was not knowing, intelligent, and voluntary would also be wholly frivolous. The trial court strictly complied with the
{¶ 11} Turning to counsel‘s second proposed assignment of error, any argument that Smith‘s sentence violated the constitutional proscription against cruel and unusual punishment would be frivolous. Each of Smith‘s individual sentences was within the prescribed statutory range, and the imposition of consecutive sentences was authorized by
{¶ 12} Also, any other appellate attack on Smith‘s individual sentences would be without arguable merit. An appellate court may vacate or modify a felony sentence if it determines by clear and convincing evidence that the sentence is contrary to law or the record does not support the sentence. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231;
{¶ 13} The same very deferential standard of review is applicable to the imposed consecutive sentences. A trial court must make the consecutive findings required by
{¶ 15} Finally, consistent with our duties under Anders, we have reviewed the entire record. This review has not revealed any potential issue for appeal with arguable merit. As such, the judgment of the Montgomery County Common Pleas Court is affirmed.
Conclusion
{¶ 16} Counsel‘s request for leave to withdraw as Smith‘s counsel is granted, and the judgment of the Montgomery County Common Pleas Court is affirmed, but the case is remanded so that a nunc pro tunc judgment entry incorporating the consecutive sentencing findings may be filed.
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WELBAUM, P.J. and HALL, J., concur.
Mathias H. Heck, Jr.
Andrew T. French
Daniel F. Getty
Justin K. Smith
Hon. Mary Katherine Huffman