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State v. Hackley

Court of Appeals of Ohio, Second District, Champaign

June 2, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DAVID E. HACKLEY Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-179

          KEVIN S. TALEBI, Attorney for Plaintiff-Appellee

          ANN M. RINGLER, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, J.

         {¶ 1} Defendant-appellant, David E. Hackley, appeals from his conviction and sentence in the Champaign County Court of Common Pleas after pleading guilty to one count of Domestic Violence, a felony of the fourth degree, in violation of R.C. 2919.25(A). In proceeding with the appeal, Hackley's appointed 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 that there are no issues with arguable merit to present on appeal. Hackley's counsel then identified four potential assignments of error for us to consider. Hackley's counsel also sent a copy of the appellate brief and a letter to Hackley to inform him that he could file his own brief raising assignments of error. No separate appellate brief has been filed by Hackley.

         {¶ 2} 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 affirmed.

         I. Course of Proceedings

         {¶ 3} On July 7, 2016, the Champaign County Grand Jury indicted Hackley on one count of Domestic Violence, a felony of the third degree, in violation of R.C. 2919.25(A). Dkt. 1. At the initial arraignment in the Champaign County Court of Common Pleas, the trial court determined that Hackley was indigent. Dkt. 5. Hackley pled not guilty to the one count of Domestic Violence.

         {¶ 4} On August 22, 2016, Hackley agreed to withdraw his not guilty plea and instead enter a plea of guilty to Domestic Violence, a felony of the fourth degree. Hackley signed a Plea Agreement in which he acknowledged that, among other things, the possible penalty for this crime was between six and eighteen months in prison and a maximum fine of $5, 000; court costs, restitution, and other financial sanctions may be imposed; he was giving up his right to a jury trial; and he entered his plea voluntarily. Dkt. 21.

         {¶ 5} On September 19, 2016, the trial court entered a judgment of conviction and sentence. Dkt. 25. Hackley was found guilty of one count of Domestic Violence, a felony of the fourth degree, in violation of R.C. 2919.25(A). The trial court sentenced him to fourteen months in prison. The trial court imposed a $250 fine and ordered that Hackley will be responsible for paying back the costs of his defense. Hackley appeals from this conviction and sentence.

         II. Law and Analysis

         {¶ 6} In Anders cases, the appellate court must conduct a thorough examination of the proceedings to determine whether the appeal is frivolous, and if it is, the court may "grant counsel's request to withdraw and then dismiss the appeal without violating any constitutional requirements, or the court can proceed to a decision on the merits if state law requires it." State v. McDaniel, 2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at 744. "If we find that any issue presented or which an independent analysis reveals is not wholly frivolous, we must appoint different appellate counsel to represent the defendant." (Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7.

         {¶ 7} "Anders equates a frivolous appeal with one that presents issues lacking in arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal." Id. at ¶ 8, citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788. Rather, "[a]n issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal." Marbury at ¶ 8.

         {¶ 8} In conducting our independent review, Hackley's appellate counsel has requested that we consider the following four potential assignments of error: (1) whether the trial court appropriately considered the factors in R.C. 2929.12 in determining the length and nature of Hackley's sentence; (2) whether the trial court abused its discretion in sentencing Hackley to fourteen months in prison; (3) whether Hackley entered a plea that was knowing and intelligent given the exchange between the trial court and Hackley at the end of the plea colloquy; and (4) whether the trial court appropriately ordered indigent Hackley to pay a fine and repay the costs of his defense.

         {¶ 9} The first potential assignment of error raised by Hackley's appellate counsel concerns whether the trial court appropriately considered the factors in R.C. 2929.12 in determining the length and nature of Hackley's sentence.

         {¶ 10} At the sentencing hearing, the trial court stated (Transcript of Sentencing Hearing, p. 17-19):

THE COURT: Thank you. Court has reviewed the pre-sentence investigation report, statements of counsel, statements of the Defendant, and Court's interaction with the Defendant. Court has also reviewed the victim impact statement as well as the oral statements of [C.P.].
In imposing sentence, the Court has considered and applied the purposes and principles of sentencing set forth in 2929.11 divisions A, B, and C. The Court also considered the seriousness of the conduct, likelihood of recidivism, and lack of service in the Armed Forces. With regard to more serious factors, the Court finds that Defendant's relationship with the victim facilitated the offense. That during the domestic violence incident that the Defendant assaulted the victim in two separate occasions. That during the domestic violence incident the Defendant strangled the victim in two separate occasions. That during the domestic violence incident the Defendant punched the victim in the abdominal region knowing she had had a previous surgery in that area. She had had recent previous surgery in that area.
With regard to less serious factors, the Court finds none. The Court concludes that the factors establishing the Defendant's conduct is more serious outweigh factors establishing conduct is less serious. With regard to recidivism factors, the Court finds that Defendant has a history of criminal convictions, has not responded favorably to sanctions previously imposed, and shows no genuine remorse for the offense.
With regard to less likely to commit future crimes, the Court finds that prior to committing the offense the Defendant was not adjudicated a delinquent child. And prior to committing the offense the Defendant led a law-abiding life for a significant number of years. Significant, in this case, is four. The Court finds that although you may not think that four is very long. You, meaning, anyone reading this record. Given the Defendant's criminal history record, four years is significant.
Court concludes, however, that factors establishing the Defendant's recidivism is more likely outweigh factors establishing Defendant's recidivism is less likely. Court considered the Defendant's military service. Finds he has no military service record. Court also makes the 2929.13(B)(1)(b) findings that ...

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