Court of Appeals of Ohio, Second District, Champaign
Criminal Appeal from Common Pleas Court Trial Court Case No.
S. TALEBI, Atty. Reg. No. 0069198, Attorney for
SAMANTHA L. BERKHOFER, Atty. Reg. No. 0087370, Attorney for
1} Zachary Lyle Wooten appeals from a judgment of
the Champaign County Court of Common Pleas, which revoked his
community control and sentenced him to 18 months in prison
for domestic violence. For the following reasons, the trial
court's judgment will be affirmed.
Anders Appeal Standard
2} Wooten'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). We informed Wooten 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. Wooten did not file a pro se brief.
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.
Factual and Procedural History
4} On September 7, 2017, a grand jury indicted
Wooten for domestic violence, in violation of R.C.
2919.25(A), a felony of the fourth degree, and endangering
children, in violation of R.C. 2919.22(A), a first-degree
misdemeanor. Both charges related to Wooten's
seven-year-old son, who Wooten struck after the child missed
the school bus one morning.
5} On October 16, 2017, Wooten pled guilty to the
domestic violence charge. In exchange for the plea, the State
agreed to dismiss the endangering children charge and to
recommend a presentence investigation (PSI). The agreement
further indicated that if Wooten had "no further
criminal history record than what is already known and
disclosed in the Prosecutor's discovery packet or by
Defendant's discovery packet, the State agrees to
recommend at Sentencing: community control." If, on the
other hand, the PSI disclosed additional criminal history or
if Wooten were charged with a new offense prior to
sentencing, the State would not be bound to that
recommendation. After a Crim.R. 11 plea colloquy, the trial
court accepted Wooten's guilty plea to domestic violence.
(Wooten acknowledged that he previously had been convicted of
domestic violence in Champaign C.P. No. 2015-CRB-274.)
6} At sentencing on November 17, 2017, the State
recommended community control. It noted that Wooten had a
prior criminal history, including a prior domestic violence
conviction, and that Wooten had a history of not complying
with community control. The prosecutor acknowledged that
Wooten "does appear to have a substantial substance
abuse problem, which is the contributing factor to the
commission of the offense." The prosecutor opined that
"punishment is appropriate as part of the community
control sanctions," and it requested a jail term as well
as sanctions to address the substance abuse issue, mental
health counseling, and supervised contact with the victim.
7} Defense counsel also requested community control.
Counsel opposed a jail sentence, noting that Wooten had been
on house arrest and had an ankle monitor, and there had been
no violations. Counsel indicated that Wooten "actually
went beyond what most of my clients actually do as far as
getting their lives in order."
8} After hearing from Wooten and discussing
Wooten's situation with him, the trial court imposed
three years of community control. The court ordered that
Wooten comply with the standard conditions of community
control, as well as numerous "special conditions."
Those conditions included paying court costs, fines, and
legal fees, complying with cognitive behavioral counseling
and medication-assisted treatment for opiate dependency,
completing Think For a Change Programming, obtaining various
assessments, and completing parenting classes and family
counseling. Wooten was to complete 100 hours of community
service. He was to remain on house arrest and electronic
monitoring. The court ordered Wooten not to have contact with
his son except when approved by Children Services. The court
found that Wooten had the ability to pay courts costs and
legal fees, and it imposed a $250 fine. The court notified
Wooten that, if he violated his community control and it were
revoked, the court would impose 18 months in prison.
9} Following the sentencing hearing, the trial court
filed a written judgment entry consistent with its oral
pronouncement. Wooten did not appeal his conviction.
10} On October 31, 2018, a probation officer
requested that community control be suspended and that a
capias be issued for Wooten's arrest, because
Wooten's whereabouts were unknown. Wooten was arrested on
February 7, 2019.
11} On February 11, 2019, a probation officer filed
a notice of supervision violation, which alleged that Wooten
had violated six different conditions of his community
control. The same day (Feb. 11), a magistrate held an
"arraignment" on the community control violations.