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State v. Kendall

Court of Appeals of Ohio, Second District, Champaign

July 12, 2019

STATE OF OHIO Plaintiff-Appellee
JAMES LEE KENDALL Defendant-Appellant

          Criminal Appeal from Common Pleas Court No. 2018-CR-209

          KEVIN TALEBI, Atty. Reg. No. 0069198, Attorney for Plaintiff-Appellee.

          BYRON K. SHAW, Atty. Reg. No. 0073124, Attorney for Defendant-Appellant.


          FROELICH, J.

         {¶ 1} James Lee Kendall pled guilty in the Champaign County Court of Common Plea to one count of domestic violence, in violation of R.C. 2919.25(A), a third-degree felony. In exchange for the plea, the State dismissed a charge of burglary, a felony of the second degree. After a presentence investigation, the trial court imposed a maximum 36-month sentence and ordered Kendall to pay court costs and legal fees and expenses. For the following reasons, the trial court's judgment will be affirmed.

         I. Anders Appeal Standard

         {¶ 2} Kendall's 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), indicating that he found "no valid appellate issues." Counsel stated that Kendall's plea and conviction "involved a plea that was knowingly, intelligently, and voluntarily given with full understanding of his constitutional rights prior to sentencing accordingly." We informed Kendall that his attorney had filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se brief. To date, no pro se brief has been filed.

         {¶ 3} Pursuant to Anders, we must determine, "after a full examination of all the proceedings," whether the appeal is "wholly frivolous." Id. at 744; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous merely because the prosecution can be expected to present a strong argument in reply. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that presents issues lacking arguable merit, which means that, "on the facts and law involved, no responsible contention can be made that it offers a basis for reversal." State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing Pullen at ¶ 4. If we find that any issue - whether presented by appellate counsel, presented by the defendant, or found through an independent analysis - is not wholly frivolous, we must appoint different appellate counsel to represent the defendant. Id. at ¶ 7.

         II. Factual and Procedural History

         {¶ 4} According to the municipal court complaint, at 10:54 a.m. on Tuesday, November 6, 2018, two Urbana police officers responded to the residence of Andrea Huffman, with whom Kendall has a minor child. When the officers arrived, they saw Huffman shoving Kendall out the back screen door of her home. Kendall told the officers that Huffman was "crazy." The officers noticed that Kendall was unsteady on his feet and had a strong odor of an alcoholic beverage coming from his person. Approximately a week prior to this incident, the officers had told Kendall that Huffman did not want him at her house, and the officers inquired why Kendall had returned. Kendall reported that Huffman had called him and asked him to come over.

         {¶ 5} One of the officers spoke with Huffman in her residence. The officer observed that a coffee table and the dining room table were flipped over, a tub of Halloween decorations was dumped on its side, and a cabinet in the dining room was "shoved over." Huffman reported that she had gotten out of the shower and found Kendall sitting in her kitchen; she had not invited him over. She told the officer that Kendall "keeps coming to my house and just walking in." Kendall had told Huffman that he wanted to see his daughter, who was at school. Huffman stated to the officer that, when she had asked Kendall to leave, Kendall began arguing with her and starting flipping over furniture. Huffman also reported that Kendall threw a Halloween decoration at her, hitting her in the arm, and he "smacked her in the head with an open hand." Kendall also threw Huffman's purse at her in the dining room and threw a glass sugar container at her in the kitchen, barely missing her. Huffman's hair was still wet, and she had a bruise on the back of her left arm. Huffman told the officer that she had tried for ten years to get Kendall to "sober up and quit drinking."

         {¶ 6} The officers arrested Kendall and charged him with domestic violence, burglary, and criminal damaging. In December 2018, Kendall was indicted for burglary with a specification that he had a prior conviction for burglary, and for domestic violence with a specification that he had three prior convictions for domestic violence. The trial court set a $20, 000 cash or surety bond; it denied Kendall's subsequent request for a personal recognizance bond or a reduction in bond. Kendall remained in custody while his case was pending.

         {¶ 7} A jury trial was scheduled for January 29, 2019. At a January 3, 2019 pretrial conference, the parties indicated that they wished to have a plea hearing. At the time, Kendall pled guilty to domestic violence as a third-degree felony; pursuant to the parties' agreement, the State requested dismissal of the burglary charge. The trial court ordered a presentence investigation.

         {¶ 8} On January 28, 2019, the trial court sentenced Kendall to a maximum 36-month sentence; the trial court informed Kendall that he would receive 84 days of jail time credit. The court told Kendall that he "may be eligible to earn days of credit for productively participating in certain prison programming." The court recommended that Kendall serve a risk reduction sentence if he were eligible for the program, but stated that it did not recommend and disapproved of Kendall's placement in an intensive program prison "[a]fter considering the seriousness and recidivism factors," which it had previously discussed. The court further told Kendall:

In addition, the Court would favorably consider you to judicial release to the West Central Community-Based Correctional Facility Program after you've served 12 months of your sentence. And as long as you've not committed prison rule infractions to such a degree that the ...

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