Court of Appeals of Ohio, Second District, Champaign
Appeal from Common Pleas Court Trial Court Case No.
S. TALEBI, Attorney for Plaintiff-Appellee
RINGLER, Attorney for Defendant-Appellant
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
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
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.
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} "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
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 ...