Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case Nos.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Attorney for Plaintiff-Appellee.
BRINKMAN, Atty. Reg. No. 0088253, Attorney for
1} Curtis Parker appeals from his convictions and
consecutive sentences in two trial court cases that were
sentenced at the same time. In Montgomery C.P. No.
2018-CR-0044, Parker was indicted on February 1, 2018 for one
count of conveying drugs into a detention facility, a
third-degree felony. In that case, Parker pled guilty to an
attempt to commit the indicted charge, which made the offense
and the conviction a felony of the fourth-degree. By entry of
April 25, 2018, he was sentenced to community control
sanctions including a term of local incarceration. On June 6,
2018, while incarcerated, Parker left his work assignment at
a local food pantry and failed to return to the detention
facility. He was indicted for escape, a third-degree felony
(because he was under detention for a fourth-degree felony,
R.C. 2921.34(C)(2)(b)), in Montgomery County C.P. No.
2018-CR-2217 on June 22, 2018. On July 17, 2018 he entered a
plea of guilty as charged in the new case and admitted to a
community control sanction violation in the older case. On
August 24, Parker was sentenced to nine months in prison on
each of the cases, to be served consecutively.
2} Parker's appointed appellate counsel has
filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the
absence of non-frivolous issues for review. By order filed
February 6, 2019, we notified Parker of the Anders
filing and gave him an opportunity to submit a pro se brief,
but he did not do so.
3} Counsel identifies, as potential issues, possible
arguments regarding the Parker's sentencing, the
consecutive nature of the sentences, and whether due process
was followed regarding the community control sanction
revocation. However, counsel concludes none of these have
4} Initially we note that when Parker entered a
guilty plea in Case No. 2018-CR-0044 he was sentenced to
community control. He did not appeal the initial conviction
and the imposition of community control. Arguments concerning
that plea and initial sentencing should have been raised in
an appeal at that time and cannot be raised now. State v.
Turner, 2d Dist. Montgomery No. 27350, 2017-Ohio-4101,
¶ 8. In addition, Parker's community control
included a term that he would "refrain from violation of
any law." Notice of CCS Revocation, Doc. #29.
5} On July 17, 2018, in conjunction with his guilty
plea to the escape charge in Case No. 2018-CR-2217, Parker
admitted that he violated his supervision by walking away
from confinement at the Secure Transitional Offender Program
(STOP) as indicated in the notice of CCS revocation hearing.
Nothing in the record indicates that Parker's plea to the
escape charge or the admission to the community control
violation was anything other than knowing, intelligent, and
voluntary. The trial court fully complied with Crim.R. 11 in
taking the plea. There is simply nothing in the record to
support an issue with arguable merit about the guilty plea or
admission of the violation.
6} Turning to the sentencing, in Case No.
2018-CR-0044, the trial court had reserved an alternate
sentence of "a prison term of 18 months" for a
violation of any of the terms of community control.
Termination Entry, Doc. #18. At the plea hearing, the court
also advised Parker, and he acknowledged he understood, that
a prison term for escape would be required to be served
consecutively to any other term of incarceration. R.C.
2929.14(C)(2). After the July 17, 2018 plea and admission,
the trial court ordered a presentence investigation.
7} In the interim, Parker's counsel filed a
Motion to Withdraw as counsel of record citing a
"breakdown in the Attorney-Client relationship."
Doc. #20. That motion apparently was granted, and new counsel
promptly was appointed. On August 8, 2018, new counsel filed
a "Motion to Withdraw Plea," asserting that prior
counsel had been ineffective in negotiating his plea. Doc.
#24. By entry of August 10, 2018, that motion was set for
hearing on August 24, 2018. However, after pretrial
conferences in chambers on August 24, 2018, the court stated
on the record that it had indicated "what the intended
sentence was going to be, upon then coming into the court,
after learning what the sentence was going to be, Mr. Parker
is now, to my understanding, wants to withdraw his motion
[to] withdraw his plea based on that." Transcript,
August 24, 2018, p. 3. After about a half hour recess the
case was recalled and counsel and Parker both stated they
wanted to withdraw the August 8, 2018 motion. The trial court
carefully addressed the issue directly with Parker, who
voluntarily indicated he wanted to withdraw the motion and
proceed with sentencing. The trial court then proceeded to
sentencing. The court referred to the presentence
investigation and indicated it had considered the purposes
and principles of sentencing in R.C. 2921.11 and the
seriousness and recidivism factors in 2921.12 and that the
escape offense occurred while Parker was under supervision.
The court then sentenced Parker to nine months of
imprisonment for each offense, to be served consecutively, as
required by R.C. 2929.14(C)(2). The court properly imposed
non-mandatory post-release control of up to three years.
8} We agree with counsel that an appeal of
Parker's sentence would be frivolous. The sentences were
both well within the statutory range for the offenses.
Parker's record and the circumstances of the two offenses
abundantly support the sentences, and the record does not
clearly and convincingly fail to support the sentences. R.C.
2929.14(C)(2) requires a sentence for escape to be served
consecutively. The ordinary findings for imposing consecutive
sentences found in R.C. 2929.14(C)(4) are not required when
consecutive sentencing is mandated. See, e.g., State v.
Holiman, 9th Dist. Summit Nos. 27105 & 27106,
2014-Ohio-1925, ¶ 6.
9} We find nothing in the record to support an
argument of a denial of due process in the processing of the
community control revocation. The Notice of CCS Revocation,
Doc. #29, avers that Parker violated rule number one when he
was arrested for escape as a result of walking away from STOP
confinement. He knowingly and voluntarily admitted to this
violation in open court. His nine-month sentence for that
violation was less than the 18-month potential alternate