State v. Waugh

[Cite as State v. Waugh , 2011-Ohio-1219.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA25
:
vs. : Released: February 16, 2011
:
JOHN D. WAUGH, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

David Reid Dillon, South Point, Ohio, for Defendant-Appellant.

J.B. Collier, Jr., Lawrence County Prosecutor, and Robert C. Anderson,
Lawrence County Assistant Prosecutor, Ironton, Ohio, for Plaintiff-
Appellee.
_____________________________________________________________

McFarland, J.:

{¶1} Defendant-Appellant, John D. Waugh, appeals the decision of

the Lawrence County Court of Common Pleas revoking his community

control sanctions and sentencing him to three years in prison. Waugh’s

appellate counsel, after reviewing the record below and consulting with his

client, states he can find no meritorious claim for an appeal and, pursuant to

Anders v. California, requests permission to withdraw from the case.

{¶2} Pursuant to Anders, counsel does, however, raise four

potential assignments of error for us to consider: 1) the trial court did not
Lawrence App. No. 10CA25 2

take into account the misconduct of staff members at Waugh’s treatment

facility; 2) the court’s decision was against the manifest weight of the

evidence; 3) there was a question as to the voluntariness of Waugh’s

statement admitting drug use; and 4) he had ineffective assistance of

counsel. After a full examination of the record below, we find all four

potential assignments of error to be wholly frivolous. As such, we grant

counsel’s request to withdraw and affirm the decision of the trial court.

I. Facts
{¶3} As part of a plea agreement, Waugh pleaded guilty to

attempted burglary, a third-degree felony. Through a judgment entry dated

November 6, 2008, the trial court sentenced him to four years of community

control sanctions. As part of those control sanctions, the trial court ordered

Waugh to successfully complete a nine to twelve month drug treatment

program at the New Beginnings treatment facility. The court further ordered

him to authorize the Bureau of Community Corrections to monitor his

progress at that facility. Waugh was also ordered to immediately report to

Community Corrections upon his discharge from New Beginnings. Another

of the control sanctions was that he not “use, own, possess or have

immediate control of any type of controlled substance, drug, or narcotic,

except on prescription by a physician.” The court reserved jurisdiction to
Lawrence App. No. 10CA25 3

impose a prison sentence if Waugh violated the terms of his community

control sanctions.

{¶4} Waugh was subsequently involuntarily discharged from New

Beginnings in April 2010. Community Corrections contacted him by phone,

and gave him three days to report to their office. Waugh failed to report as

required, a capias was issued, and he was apprehended at his residence.

Community Corrections then administered a drug screen and Waugh tested

positive for OxyContin and marijuana. Though he initially denied it, Waugh

verbally admitted to drug use without proper medical authorization when

presented with the results of his drug screen. He also signed a written

acknowledgement to that effect.

{¶5} On April 26, 2010, the State moved to revoke Waugh’s

community control sanctions on the grounds that he had 1) failed to report to

the Bureau of Community Corrections as required; 2) lied or intentionally

misled probation officers; 3) used or possessed controlled substances; and 4)

failed to pay court costs. At his arraignment on these charges, Waugh stated

his intent to contest his discharge from New Beginnings. The State then

withdrew its allegations concerning Waugh's involuntary discharge from the

treatment program, but elected to proceed on the other grounds.
Lawrence App. No. 10CA25 4

{¶6} A community control sanctions revocation trial was held on

May 5, 2010. During trial, the State presented the testimony of two

Community Corrections probation officers. The officers testified that

Waugh had failed to report to their office as required after he was dismissed

from New Beginnings, that he had failed a drug screen after he was

apprehended, that he had initially lied to them concerning his drug use, that

he later verbally admitted to using drugs, and that he had failed to pay court

costs as required. The State also admitted into evidence Waugh’s written

statement admitting the use of OxyContin and marijuana. Waugh presented

no evidence in his defense. The trial court subsequently sentenced him to

serve three years in prison of the four year sentence the court had previously

reserved.

II. Potential Assignments of Error
First Potential Assignment of Error
ALLEGATIONS OF MISCONDUCT ON THE PART OF STAFF
AND PATIENTS AT THE TREATMENT FACILITY FROM
WHICH DEFENDANT WAS DISCHARGED PRECLUDED ITS
USE IN A MOTION TO REVOKE COMMUNITY CONTROL
SANCTIONS.

Second Potential Assignment of Error
THE DECISION OF THE COURT BELOW WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Lawrence App. No. 10CA25 5

Third Potential Assignment of Error

THE ISSUE OF THE VOLUNTARINESS OF THE WRITTEN
ADMISSION OF DRUG USE WAS OF SUFFICIENT WEIGHT TO
WARRANT REVERSAL OF THE COURT'S JUDGMENT.

Fourth Potential Assignment of Error

THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.

III. Anders Brief
{¶7} Waugh’s appellate counsel has filed an Anders brief in this

action. Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493, counsel may ask permission to withdraw from a case when he

or she has conscientiously examined the record, can discern no meritorious

claims for appeal and has determined the case to be wholly frivolous. Id. at

744; State v. Davis, 4th Dist. No. 10CA9, 2010-Ohio-5294, at ¶10.

Counsel’s request to withdraw must be accompanied with a brief identifying

anything in the record that could arguably support the client's appeal.

Anders at 744; Davis at ¶10. Further, counsel must provide the client with a

copy of the brief and allow sufficient time for him or her to raise any other

issues, if the client chooses to do so. Id.

{¶8} Once counsel has satisfied these requirements, the appellate

court must conduct a full examination of the trial court proceedings to

determine if meritorious issues exist. If the appellate court determines that

the appeal is frivolous, it may grant counsel’s request to withdraw and
Lawrence App. No. 10CA25 6

address the merits of the case without affording the appellant the assistance

of counsel. Id. If, however, the court finds the existence of meritorious

issues, it must afford the appellant assistance of counsel before deciding the

merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,

2007-Ohio-2743, at ¶7.

{¶9} In the current action, Waugh’s appellate counsel concludes

the appeal is wholly frivolous and has asked permission to withdraw.

Pursuant to Anders, counsel has filed a brief raising four potential

assignments of error for this court to consider. Though advised of his right

to do so, Waugh did not file an additional pro se brief.

IV. First Potential Assignment of Error
{¶10} The first potential assignment of error concerns allegations of

misconduct on the part of the staff at New Beginnings. The State initially

listed Waugh’s involuntary discharge from New Beginnings, and his

subsequent failure to report to Community Corrections, as a violation of his

community control sanctions. However, before the matter came on for trial,

the State dropped the issue as a cause for revocation. Further, the trial court

neither mentioned Waugh’s involuntary discharge from New Beginnings nor

relied on that factor in issuing its decision. Accordingly, this potential

assignment of error has no merit.
Lawrence App. No. 10CA25 7

V. Second Potential Assignment of Error

{¶11} Waugh’s second potential assignment of error is that the trial

court’s decision was against the manifest weight of the evidence. When

determining whether a criminal conviction is against the manifest weight of

the evidence, we “will not reverse a conviction where there is substantial

evidence upon which the [trier of fact] could reasonably conclude that all the

elements of an offense have been proven beyond a reasonable doubt.” State

v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶21, quoting State

v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the

syllabus.

{¶12} Here, the State clearly presented substantial evidence to prove

Waugh had violated his community control sanctions. In fact, the testimony

of the probation officers was conclusive and uncontested. That testimony

first established the conditions of Waugh’s community control sanctions,

including that he was not to possess or use illegal drugs. The testimony then

revealed Waugh had failed a drug screen, verbally admitted to using drugs,

and signed a statement admitting he had used OxyContin and marijuana.

Further, that written statement, itself, was entered into evidence. Again,

Waugh failed to present any evidence rebutting or contradicting the

probation officers’ testimony.
Lawrence App. No. 10CA25 8

{¶13} In light of the above, there was substantial evidence for the

trial court to reasonably conclude, beyond a reasonable doubt, that Waugh

had violated the terms of his community control sanctions. Accordingly, the

trial court’s decision was not against the manifest weight of the evidence and

Waugh’s third potential assignment of error has no merit.

VI. Third Potential Assignment of Error

{¶14} The third potential assignment of error questions the

voluntariness of Waugh’s written admission. However, there is no evidence

in the record to indicate that the admission was anything other than

voluntary. When he was apprehended, Waugh did initially deny that he had

used illegal drugs, but after his drug screen detected the use of OxyContin

and marijuana, he quickly changed his story. Probation officers testified

that, at that point, he verbally admitted to using the drugs approximately two

days prior. Then, he signed the written drug admission statement

acknowledging the same. The officer’s testimony and the written statement

were uncontradicted at trial. Accordingly, due to the complete lack of

evidence suggesting Waugh’s admission was involuntary, we overrule his

third potential assignment of error.
Lawrence App. No. 10CA25 9

VII. Fourth Potential Assignment of Error

{¶15} Waugh’s final potential assignment of error is that he had

ineffective assistance of counsel. In order to establish ineffective assistance

of counsel, an appellant must show that counsel’s representation was both

deficient and prejudicial. State v. Miller, 4th Dist. No. 10CA2, 2010-Ohio-

3710, at ¶4; Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct.

2052. Deficient representation means counsel’s performance was below an

objective standard of reasonableness. State v. Madden, 4th Dist. No.

09CA883, 2010-Ohio-176, at ¶17; Strickland at 687-688; To show

prejudice, an appellant must show it is reasonably probable that, except for

the errors of his counsel, the proceeding’s outcome would have been

different. Madden at ¶18; Strickland at 694. “However, both prongs of this

‘Strickland test’ need not be analyzed if a claim can be resolved under one

prong.” Miller at ¶4, citing State v. Madrigal, 87 Ohio St.3d 378, 389,

2000-Ohio-448, 721 N.E.2d 52.

{¶16} Here, we can find no evidence in the record indicating that,

but for Waugh’s trial counsel’s errors, his community control sanctions

would not have been revoked. As previous shown, the evidence was

uncontested at trial that Waugh had 1) failed a drug screen; 2) verbally

admitted to using drugs; and 3) executed a written statement acknowledging
Lawrence App. No. 10CA25 10

the use of OxyContin and marijuana – directly in violation of his community

control sanctions. It light of such evidence, no alleged errors of counsel

would have made it reasonably probable that the trial’s outcome would have

been different. As such, his representation was not prejudicial and we

overrule his final potential assignment of error.

VIII. Conclusion

{¶17} After conducting a full and independent examination of the

record and proceedings below, we agree with Waugh’s appellate counsel and

conclude there are no meritorious issues for appeal. Having reviewed the

four potential assignments of error and having found the appeal to be wholly

frivolous, we hereby grant counsel's motion to withdraw and affirm, in full,

the decision of the court below.

JUDGMENT AFFIRMED.
Lawrence App. No. 10CA25 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________
Judge Matthew W. McFarland

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.