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State v. Battles

Court of Appeals of Ohio, Second District, Montgomery

August 2, 2019

STATE OF OHIO Plaintiff-Appellee
v.
DAVID BATTLES Defendant-Appellant

          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 Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 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 be affirmed.

         Facts 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.

         Anders Standard

         {¶ 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.

         Anders Review

         {¶ 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 conclusion.

         {¶ 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, ΒΆ 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 ...


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