STATE OF OHIO v. STORM SMITH
Appellate Case Nos. 28208, 28209, 28210, 28211
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 8, 2020
2020-Ohio-2854
Trial Court Case Nos. 2017-CR-1181, 2016-CR-434, 2016-CR-529, 2018-CR-3475; Criminal Appeal from Common Pleas Court
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant
TUCKER, P.J.
Rendered on the 8th day of May, 2020.
{¶ 1} Appellant Storm Smith‘s appointed counsel has 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 he could not find any potentially meritorious appellate issues. Following an independent review of the record, we agree with this assessment. As such, the judgments of the Montgomery County Common Pleas Court will be affirmed.
Facts and Procedural History
{¶ 2} In five separate indictments, Smith was indicted by the Montgomery County Grand Jury as follows: Montgomery C.P. No. 2015-CR-636 (which, on appeal, was assigned Montgomery App. No. 28207), Montgomery C.P. No. 2016-CR-434 (which, on appeal, was assigned Montgomery App. No. 28209), Montgomery C.P. No. 2016-CR-529 (which, on appeal, was assigned Montgomery App. No. 28210), Montgomery C.P. No. 2017-CR-1181 (which, on appeal, was assigned Montgomery App. No. 28208), and Montgomery C.P. No. 2018-CR-3475 (which, on appeal, was assigned Montgomery App. No. 28211). Case No. 2015-CR-636 indicted Smith for possession of heroin, a third-degree felony, possession of cocaine, a fifth-degree felony, aggravated possession of drugs, a fifth-degree felony, and possession of drugs, a first-degree misdemeanor. Following a jury trial in this case, Smith was convicted on all counts and sentenced to an aggregate 36-month prison term.
{¶ 3} In Case No. 2016-CR-529, Smith filed a motion to suppress evidence, which was denied.
{¶ 4} Following Smith‘s conviction in Case No. 2015-CR-636, the parties reached a plea agreement regarding the remaining cases as follows: in Case No. 2016-CR-434, Smith pleaded guilty to failure to comply with an order or signal of a police officer, a third-
{¶ 5} Smith‘s initial appellate brief asserted arguments only in Case No. 2015-CR-636 (Montgomery App. No. 28207), the case in which she was convicted following a jury trial. The brief stated in a footnote “that [as to the other cases] no meritorious argument would be forthcoming.” In response, we filed a Decision and Entry ordering that Montgomery App. No. 28207 “proceed * * * on the merits[,]” but with respect to the other four cases, “which remain[ed] consolidated, * * * counsel [was instructed] to file a brief in accordance with Anders * * *.”1 Counsel complied with this instruction. Smith was informed of the Anders brief and of his right to file a pro se brief within 60 days of the Anders notice. Smith has not filed a brief.
Anders Standard
{¶ 6} 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
Anders Analysis
{¶ 7} Consistent with his duties under Anders, counsel has suggested the following assignments of error: (1) that Smith did not enter the pleas in a knowing, intelligent, and voluntary fashion; (2) that Smith‘s sentence is contrary to law; and (3) that the trial court erred when it overruled Smith‘s motion to suppress in Case No. 2016-CR-529. We agree with counsel‘s assessment that pursuing these potential assignments of error would be wholly frivolous.
{¶ 8}
{¶ 9} Our independent review confirms that Smith‘s sentence is authorized by law. Smith‘s guilty pleas do not raise any merger issue. As to each charge, the trial court correctly informed Smith of the maximum sentence that could have been imposed, absent the parties’ agreement, and the potential and mandatory fines. The trial court also correctly informed Smith of the mandatory and potential PRC implications, and the judgment entries accurately reflect this discussion. In addition, as to the second-degree felony trafficking in heroin charge, the trial court informed Smith that this offense required the imposition of a mandatory prison term. Further, as to the failure to comply charge, the trial court informed Smith that this offense required the imposition of a mandatory driver‘s license suspension. Finally, as to the drug counts, the trial court informed Smith of a possibility of a driver‘s license suspension.2 Thus, Smith‘s sentence was not appealable under
{¶ 10} The second proposed assignment of error relates to the trial court‘s decision overruling a motion to suppress in Case No. 2016-CR-529. Smith‘s guilty plea in that case “waives [her] ability to challenge the suppression ruling on appeal.” State v. Barron, 2d Dist. Greene No. 2017-CA-46, 2018-Ohio-1221, ¶ 5, citing State v. Guerry, 2d Dist.
{¶ 11} Finally, turning to the third proposed assignment of error, any argument that Smith did not enter the guilty pleas in a knowing, intelligent, and voluntary manner would also be without potential appellate merit. Due process requires that a defendant‘s guilty plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Compliance with
Conclusion
{¶ 12} We have found no non-frivolous issues for appellate review. Counsel‘s request to withdraw is granted, and the judgments of the Montgomery County Common Pleas Court are affirmed.
HALL, J. and WELBAUM, J., concur.
Mathias H. Heck, Jr.
Sarah E. Hutnik
Carlo C. McGinnis
Storm Smith
Hon. Mary Lynn Wiseman