[Cite as State v. Bell, 2011-Ohio-6799.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24665
Plaintiff-Appellee :
: Trial Court Case No. 08-CR-823/1
v. :
:
PHILLIP BELL : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 30th day of December, 2011.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHRISTOPHER B. EPLEY, Atty. Reg. #0070981, Christopher B. Epley Co., L.P.A., 124 East
Third Street, Suite 300, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Defendant Phillip Bell was convicted of possession of heroin in an amount
greater than one gram, but less than five grams, in violation of R.C. 2925.11(A), a
fourth-degree felony. The defendant was originally placed on community control, and the
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reserved sentence that would be imposed if he violated community control was fifteen months
in prison. The defendant did not appeal his conviction or sentence.
{¶ 2} A Notice of Community Control Sanction Revocation Hearing and Order was
filed on March 17, 2011, alleging that the defendant had violated community-control
conditions. A revocation hearing was conducted on May 20, 2011. The thrust of the hearing
was that the defendant left a residential treatment program at the local Veteran’s
Administration and failed to report to his probation officer. At the conclusion of the hearing,
the trial court found that the defendant had violated community control and, after allocution,
sentenced him to a reduced prison term of eight months. The defendant filed a Notice of
Appeal on June 1, 2011.
{¶ 3} Appointed appellate counsel filed a motion to withdraw pursuant to Anders v.
California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting the absence of any
non-frivolous issue for our review. Counsel’s motion included an Anders brief that raises two
potential issues: the trial court abused its discretion in revoking the defendant’s community
control, and the trial court abused its discretion when it sentenced the defendant to prison for
eight months. This Court notified Bell of appellate counsel’s conclusion and gave Bell a
period of time in which to file a pro-se brief assigning errors for our review. Bell did not file a
brief.
{¶ 4} As a preliminary matter, it appears that the defendant has now completed his
eight-month prison sentence. We find no indication in the record that the sentence was stayed.
Moreover, he was in custody at the time of the revocation hearing and sentencing. The May
26, 2011 termination entry states that the defendant’s “jail time credit is indicated in the entry
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and warrant to transport filed in this case.” The docket sheet in the record shows that a
Warrant to Convey was filed on June 1, 2011, the same date that the Notice of Appeal was
filed, but the warrant itself is not in the record. Nonetheless, we cannot ignore the fact that the
Entry and Warrant to Transport shows that the defendant’s jail-time credit before the May 20,
2011 sentencing was 75 days. Based on our calculations, the defendant completed his prison
sentence during the first week of November 2011. This is supported by the fact, of which we
take judicial notice, that the defendant’s name does not appear in the Ohio Department of
Rehabilitation and Correction’s (ODRC) website database of incarcerated offenders. We note
that the defendant completed his sentence before the time period expired in which he could
have filed a pro-se brief and before this case was considered submitted for our review.
{¶ 5} The two potential issues raised by appellate counsel challenge, in essence, only
the prison sentence imposed by the trial court, not the underlying possession conviction.
Indeed, the time to appeal the conviction expired long ago. If we were to determine that the
trial court abused its discretion by either (1) revoking community control or (2) sentencing the
defendant to eight months in prison, the remedy would be to remand the matter for a new
violation hearing or resentencing. But the defendant has now served his sentence. “This court
cannot grant relief to an appellant who has served his sentence if the underlying conviction is
not at issue.” State v. Johnson, Lake App. No.2005-L-208, 2007-Ohio-780, ¶7; see, also, State
v. Money, Clark App. No. 2009 CA 119, 2010-Ohio-6225, ¶25; State v. Silvers, Clark App.
No.2009 CA 19, 2010-Ohio-567, ¶4 (taking judicial notice of the fact that the defendant’s
name did not appear on the ODRC’s website and overruling defendant’s challenge to his
sentence as moot). Because the potential issues raised by appellate counsel are undoubtedly
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moot, they lack arguable merit.
{¶ 6} In addition, pursuant to our responsibilities under Anders, we have
independently, and carefully, reviewed the entire record in this case. We agree with the
assessment of appointed appellate counsel that there are no issues for our review that have
arguable merit.
{¶ 7} Counsel’s request to withdraw from further representation is granted, and the
judgment of the Montgomery County Common Pleas Court is affirmed.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Christopher B. Epley
Phillip Bell
Hon. Mary K. Huffman