Opinion
No. 106895
10-11-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. DANNIE R. JUSTICE DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Christopher M. Kelley 55 Public Square, Suite 2100 Cleveland, Ohio 44113 Also Listed: Dannie R. Justice, pro se Inmate No. A704816 Richland Correctional Institution 1001 Olivesburg Road Mansfield, Ohio 44905 ATTORNEY FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: DISMISSED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-620495-A BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Boyle, J.
ATTORNEY FOR APPELLANT
Christopher M. Kelley
55 Public Square, Suite 2100
Cleveland, Ohio 44113
Also Listed:
Dannie R. Justice, pro se
Inmate No. A704816
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44905
ATTORNEY FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Dannie Justice ("appellant"), brings the instant appeal arguing the trial court erred by failing to merge allied offenses of similar import for sentencing purposes and challenging the sentence imposed by the trial court. Appellant's attorney, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), filed a motion to withdraw as counsel and dismiss the appeal. After a thorough examination of the record, we grant appointed counsel's motion to withdraw and dismiss the appeal.
I. Factual and Procedural History
{¶2} The instant matter arose from an August 12, 2017 incident during which appellant burglarized a home in Parma Heights, Ohio. Appellant was apprehended by officers who were responding to a call regarding appellant attempting to break into a vehicle of another individual on that same night. When stopped and questioned by the officers, appellant was intoxicated and observed to have fresh cuts on his wrists and knees. Appellant had in his possession an envelope containing cash and several prescription pill bottles, which were the same items missing from the burglarized victim's home. Further, appellant admitted to officers that it was likely that he burglarized the home, and that he had been burglarizing homes since he was 12 years old.
{¶3} On September 8, 2017, in Cuyahoga C.P. No. CR-17-620495-A, appellant was indicted on the following charges: burglary, a second-degree felony in violation of R.C. 2911.12(A)(3); two counts of theft, fourth-degree felonies in violation of R.C. 2913.02(A)(1); drug possession, a first-degree misdemeanor in violation of R.C. 2925.11(A); attempted grand theft, a fifth-degree felony in violation of R.C. 2923.02(A) and 2913.02(A)(1); theft, a first-degree misdemeanor in violation of R.C. 2913.02(A)(1); and criminal damaging, a first-degree misdemeanor in violation of R.C. 2909.06(A)(1).
{¶4} The parties reached a plea agreement. On January 8, 2018, appellant pled guilty to an amended indictment. Pursuant to the plea agreement, Counts 3 and 4 were dismissed. Appellant pled guilty to an amended Count 1, burglary, a third-degree felony in violation of R.C. 2911.12(A)(3), and the remaining counts as indicted. A presentence investigation report and an alcohol and drug assessment were ordered, and the matter was scheduled for sentencing.
A mental health court evaluation had previously been conducted on October 10, 2017.
During the pendency of appellant's instant case, appellant was on community control sanctions in Cuyahoga C.P. No. CR-16-608099-A. This matter was scheduled for a community control violation hearing on the same date as appellant's sentencing hearing in the instant case.
{¶5} On February 7, 2018, the trial court held a sentencing hearing. Appellant's trial counsel argued that Counts 1 and 2 were allied offenses of similar import and therefore should merge for the purposes of sentencing. Appellant's counsel further argued that Counts 5, 6, and 7 should merge as well. The state opposed appellant's trial counsel's arguments, contending that Counts 1 and 2 did not merge. The state conceded that Counts 5 and 6 did merge; however, the state argued that Count 7 did not merge.
{¶6} The trial court considered the issue and ruled that Counts 1 and 2 did not merge; Counts 5 and 6 did merge, but Count 7 did not. The state elected to proceed to sentencing on Count 5, as to the merger of Counts 5 and 6. Thereafter, the trial court sentenced appellant to an aggregate three and one-half year prison term. The trial court sentenced appellant to 42 months on Count 1; 18 months on Count 2; 12 months on Count 5; and a jail term of 180 days on Count 7. The trial court ordered Counts 1, 2, 5, and 7 to run concurrently.
The trial court terminated appellant's community control supervision in CR-16-608099-A.
{¶7} On March 5, 2018, appellant, through appointed counsel, filed an appeal challenging the trial court's judgment. On June 6, 2018, appointed counsel filed an Anders brief and a motion for leave to withdraw as counsel. Therein, appointed counsel identified three potential issues to raise on appeal: (1) whether the trial court erred in failing to merge appellant's burglary and theft convictions as allied offenses of similar import; (2) whether the trial court erred in failing to merge appellant's criminal damaging, theft, and attempted grand theft convictions as allied offenses of similar import; and (3) whether the trial court erred in imposing a prison sentence. Counsel ultimately determined that proceeding with an appeal relating to the merger arguments or the trial court's sentence would be frivolous.
{¶8} On June 6, 2018, this court held counsel's motion to withdraw in abeyance pending an independent review of the record. This court allowed appellant to file a pro se brief before July 23, 2018; however, we note that appellant failed to do so.
II. Law and Analysis
{¶9} In Anders cases, we are charged with conducting an independent review of the record to determine
whether any issues involving potentially reversible error that are raised by appellate counsel or by a defendant in his pro se brief are "wholly frivolous." * * * If we find that any issue presented or which an independent analysis reveals is not wholly frivolous, we must appoint different appellate counsel to represent the defendant.(Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7. An appeal is frivolous if it "presents issues lacking in arguable merit. * * * An issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal." (Citation omitted.) Id. at ¶ 8. After a review of the entire record, an appellate court can thereafter dismiss an appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493.
{¶10} We have examined and considered the potential arguments identified by appointed counsel regarding whether (1) the trial court erred by failing to merge the allied offenses for sentencing purposes, and (2) the prison sentence imposed by the trial court is contrary to law. Appellant's counsel submitted a brief outlining that the crimes are not allied offenses of similar import and therefore do not merge for the purposes of sentencing and that appellant's sentence is not contrary to law. Furthermore, we have conducted an independent review of the record from the change of plea and sentencing hearings to determine if any arguably meritorious issues exist. Anders at 744.
A. Allied Offenses
{¶11} Our independent review indicates that the crimes are not allied offenses of similar import and thus do not merge for the purposes of sentencing. In particular, the burglary offense charged in Count 1 and the theft offense charged in Count 2, are not allied offenses of similar import and do not merge for the purposes of sentencing. See R.C. 2941.25(A); see also State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. Furthermore,
[a]s this court found in State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 5, "it is the intent to commit any criminal offense while trespassing that constitutes commission of the burglary crime. No criminal offense actually needs to be committed to support the burglary charge." In short, a burglary is complete upon the defendant entering the premises with the intent to commit a crime therein.State v. Yancey, 8th Dist. Cuyahoga No. 104587, 2017-Ohio-1040, ¶ 9; see also State v. Kibble, 8th Dist. Cuyahoga No. 104173, 2016-Ohio-8573, ¶ 14.
{¶12} The trial court did not err by failing to merge the criminal damaging offense charged in Count 7 with the attempted grand theft offense charged in Count 5 and the theft offense charged in Count 6. The offense of criminal damaging was committed separately. More specifically, the criminal damaging offense was committed when appellant forcibly broke into the victim's vehicle, whereas the attempted grand theft and theft offenses were subsequently committed when appellant obtained or exerted control over the victim's vehicle without the victim's consent.
B. Contrary to Law
{¶13} Our independent review also indicates that appellant's sentence is not contrary to law. A defendant does not have a constitutional right to appellate review of his or her criminal sentence. State v. Davis, 8th Dist. Cuyahoga No. 105404, 2017-Ohio-7483, ¶ 7, citing State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023, ¶ 12. "[T]he only right to appeal is the one provided by statute." Akins at id. Appellant was sentenced on multiple offenses, and the trial court did not impose the maximum prison sentence of the highest degree of offense. Count 1, burglary, a third-degree felony would carry a maximum prison sentence of five years given the facts of appellant's case and pursuant to R.C. 2929.14(A)(3)(a). The trial court's imposition of a three and one-half year prison sentence was not the maximum sentence it could have imposed on Count 1. Thus, appellant could not have challenged his prison sentence as an appeal of right pursuant to R.C. 2953.08(A)(1)(b).
{¶14} R.C. 2953.08(A) sets forth various grounds for appealing a criminal sentence as a matter of right. As applicable in this case, appellant's three and one-half year sentence on the third-degree felony burglary count was not a maximum sentence. Accordingly, the only potentially applicable ground for appellant's appeal is R.C. 2953.08(A)(4), which allows an appeal of right if "[t]he sentence is contrary to law." A sentence is contrary to law if the sentence falls outside the statutory range for the particular degree of offense or the trial court failed to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
{¶15} We conclude that the trial court's sentences on the offenses to which appellant pled guilty are within the permissible statutory ranges under R.C. 2929.14(A) and 2929.24(A), and there exists ample evidence in the record that the trial court considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. Therefore, we conclude, as did appellant's appointed counsel in his Anders brief, that appellant's sentence is not contrary to law.
{¶16} Accordingly, we find no error nor any arguably meritorious issues regarding the allied offenses issue or the trial court's sentence.
III. Conclusion
{¶17} We have performed our duty under Anders to conduct an independent review of the record. We have thoroughly reviewed the record and have found no nonfrivolous issues for review regarding merger or the trial court's sentence.
{¶18} Accordingly, appointed counsel's request to withdraw is granted, and the appeal is dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR., JUDGE EILEEN T. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR