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State v. Wooten

Court of Appeals of Ohio, Second District, Champaign

January 10, 2020

STATE OF OHIO Plaintiff-Appellee
v.
ZACHARY LYLE WOOTEN Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2017-CR-186

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

          SAMANTHA L. BERKHOFER, Atty. Reg. No. 0087370, Attorney for Defendant-Appellant

          OPINION

          FROELICH, J.

         {¶ 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.

         I. 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.

         II. 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. ...


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