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State v. Brandyberry

Court of Appeals of Ohio, Second District, Champaign

June 16, 2017

STATE OF OHIO Plaintiff-Appellee
v.
LANCE T. BRANDYBERRY Defendant-Appellant

         Criminal Appeal from Common Pleas Court, Trial Court Case No. 2015-CR-58

          JANE A. NAPIER, Atty. Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          J. DAVID TURNER, Atty. Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Lance Brandyberry appeals from his conviction and sentence, following a plea of guilty, for one count of grand theft, one count of receiving stolen property, and one count of unauthorized use of a vehicle. He contends that the trial court did not comply with the provisions of R.C. 2929.19(D). He further contends that the trial court erred by including court-appointed counsel fees, fees and costs into the post-confinement payment schedule.

         {¶ 2} We conclude that the trial court made findings sufficient to comport with the requirements of R.C. 2929.19(D). However, we conclude that the trial court did err with regard to fees and costs. Accordingly, we hereby modify the trial court's final judgment entry by vacating and excising only the words "court costs" and "court appointed legal fees" from the financial obligation payment schedule to the extent that the schedule compels Brandyberry to make monthly payments toward his court-appointed counsel fees and costs in connection with his criminal case. The judgment of the trial court is affirmed as modified.

         I. Facts and Procedural History

         {¶ 3} In March 2015, Phil and Tina Cook reported the theft of five guns, jewelry and a vehicle to the Champaign County Sheriffs Office. An investigation revealed that Brandyberry, Tina Cook's son, had taken the guns, jewelry and vehicle. Brandyberry sold some of the guns. He also sold the jewelry.

         {¶ 4} On May 7, 2015, Brandyberry was indicted on five counts of grand theft (firearm), one count of grand theft (vehicle), eight counts of receiving stolen property, one count of theft, one count of unauthorized use of a vehicle, and one count of possession of criminal tools. Following plea negotiations, he entered a plea of guilty to one count grand theft (vehicle), one count of unauthorized use of a vehicle and one count of receiving stolen property. The remaining charges were dismissed. The trial court ordered a pre-sentence investigation report (PSI).

         {¶ 5} The trial court sentenced Brandyberry to an aggregate term of 45 months in prison. The trial court disapproved placement in an intensive program prison. The trial court also included court-appointed counsel fees and costs into the post-confinement payment schedule. Brandyberry appealed.

         {¶ 6} Brandyberry's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel represented that she found no potentially meritorious issues for review. Following her "no merit" representation, counsel identified two possible issues for appellate review. As required by Anders, we reviewed the record to determine whether these issues were "wholly frivolous." Id. at 744. In doing so, we found one potential assignment of error having arguable merit that was not raised by appellate counsel. By decision and entry dated October 21, 2016, we stated "there is a potential assignment of error having arguable merit concerning the trial court's inclusion of court-appointed legal fees and expenses and court costs in the post-prison payment schedule set forth in its judgment entry." New appellate counsel was appointed to address that potential assignment of error along with any other assignments of error that counsel deemed warranted. The matter has been briefed by both parties.[1]

          II. Intensive Program Prison

         {¶ 7} Brandyberry's first assignment of error states as follows: THE TRIAL COURT ERRED BY DISAPPROVING INTENSIVE PROGRAM PRISON WITHOUT MAKING SPECIFIC FINDINGS THAT GIVE REASONS FOR DISAPPROVAL.

         {¶ 8} Brandyberry contends that the trial court erred when it failed to make the necessary findings, as required by R.C. 2929.19(D), to support its decision to ...


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