Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court No. 2018-CR-3239
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, Attorney for
1} Appellant, David Battles, following a guilty plea
to aggravated burglary, was sentenced to a three-year prison
term. Appellate counsel has filed a brief under the authority
of Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), stating that she can find no
arguably meritorious appellate issues. After conducting an
independent review of the record, we agree with this
assessment. Accordingly, the trial court's judgment will
and Procedural History
2} Battles was indicted for aggravated burglary, a
felony of the first degree. The possible prison term for a
first-degree felony is three to eleven years. The indictment
included a three-year firearm specification. In a separate
"B indictment," Battles was indicted for
trespassing in a habitation, a fourth-degree felony; this
indictment also included a three-year firearm specification.
It seems that the indictments related to the same incident.
3} Following plea negotiations, Battles pleaded
guilty to aggravated burglary; the firearm specification was
dismissed. Additionally, the "B indictment" was
dismissed. After completion of a presentence investigation
(PSI), the trial court conducted a sentencing hearing and
imposed a three-year prison term. This appeal followed.
4} Appellate counsel was appointed to represent
Battles. Counsel, as noted, filed an Anders brief
along with a request for leave to withdraw as counsel. We
informed Battles of the Anders filing and of his
right, within 60 days of the Anders notice, to file
a pro se brief. Battles has not filed a brief.
5} Upon the filing of an Anders brief, an
appellate court has a duty to determine, "after a full
examination of the proceedings," whether the appeal is,
in fact, "wholly frivolous." Anders, 386
U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v.
Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300
(1988). An issue is not frivolous based upon a conclusion
that the State has a strong responsive argument. State v.
Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788,
¶ 4. Instead, an issue is frivolous when, "on the
facts and law involved, no responsible contention can be made
that offers a basis for reversal." State v.
Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242,
¶ 8. If we find that any issue is not wholly frivolous,
we must reject the Anders brief and appoint new
counsel to represent the defendant.
6} Counsel, consistent with her duty under
Anders, has identified a potential appellate issue
as follows: "Is [Battles's] three year prison
sentence contrary to law because the trial court failed to
consider the factors in [R.C.] 2929.11 and 2929.12 as
required?" Counsel concludes that this issue is not an
arguably meritorious appellate issue. We concur in this
7} R.C. 2929.13(D)(1) provides that when a sentence
is imposed for a first- or second-degree felony, "it is
presumed that a prison sentence is necessary in order to
comply with the purposes and principles of sentencing."
Despite this presumption, under R.C. 2929.13(D)(2), the
sentencing court may sentence the defendant to a term of
community control sanctions (CCS), "but only if the
sentencing court finds that [CCS] would (1) adequately punish
the offender and protect the public from future crime, and
(2) not demean the seriousness of the offense because the
statutory less serious sentencing factors outweigh the more
serious factors." State v. Montgomery, 2d Dist.
Montgomery No. 27222, 2017-Ohio-56, ¶ 8. Thus, when
considering whether the R.C. 2929.13(D)(1) presumption of
imprisonment may be overcome, a trial court must evaluate
R.C. 2929.11 and R.C. 2929.12. However, even assuming there
is significant evidence to support a conclusion that the
presumption may be overcome, "the plain statutory
language indicates * * * [a] sentencing court is under no