[Cite as State v. Long, 2016-Ohio-43.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-9
:
v. : Trial Court Case No. 14-CR-449
:
CHRISTINA M. LONG : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 8th day of January, 2016.
...........
ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Greene County Prosecutor’s Office,
61 Greene Street, 2nd Floor, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, Post Office Box 291771, Kettering, Ohio
45429-1771
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Christina Long appeals from her conviction and sentence to prison for
cocaine possession, a fifth-degree felony. Long’s assigned counsel has filed a brief under
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Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that
the appeal is frivolous and requesting permission to withdraw. By order filed August 21,
2015, we informed Long that the Anders brief had been filed and advised her of her right
to file her own brief and the time limit for doing so. Long did not file anything, and the time
for filing has expired.
The course of proceedings
{¶ 2} Christina Long was charged with possession of cocaine, less than five grams,
under R.C. 2925.11(A), a fifth-degree felony, by indictment filed August 8, 2014. On
September 5, 2014, her bond was set at $3,500. On September 16, 2014, she filed a
motion for intervention in lieu of conviction. On October 11, 2014, her bond was posted
and she was released. One of the conditions of her release was that she was to report to
the adult probation department while the charge was pending.
{¶ 3} On November 7, 2014, a request for a capias for Long’s arrest was filed
because she had failed to report to the probation department as required. She had also
never reported for an intervention in lieu of conviction interview. A capias was issued
the same date. Also on November 7, 2014, the trial court overruled the motion for
intervention in lieu of conviction for the reason that the defendant was not a good
candidate for intervention.
{¶ 4} On November 26, 2014, Long appeared with counsel and pled guilty to the
charged offense. The plea agreement was that the State would recommend community
control and the defendant would be responsible to reimburse the Beavercreek police
department for a $125 laboratory analysis fee. During the plea hearing conducted that
day, the trial court complied with Crim. R. 11 and specifically discussed with the defendant
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her understanding that there was no guarantee that she would receive community control.
The capias was withdrawn. However, the defendant failed to appear for her interview at
the probation department and, after multiple attempts to contact her, another warrant was
issued for her arrest. She was confined in the Greene County Jail on December 22, 2014
until sentencing.
{¶ 5} On January 28, 2015, the defendant appeared in court for sentencing. The
trial court indicated it had reviewed the presentence investigation report and gave the
defendant and her counsel an opportunity for allocution. Counsel acknowledged that the
defendant had violated the conditions of bond and further indicated that the defendant
rejected the court’s consideration of a community control sanction if it included the court’s
intention to impose local incarceration at the Greene Leaf Program, a six-month
residential alcohol and drug treatment program. Likewise, the defendant indicated that
she rejected the court’s “offer” of community control with the Greene Leaf Program. The
court recited that it had considered the purposes and principles of sentencing in R.C.
2929.11 and the seriousness and recidivism factors in R.C. 2929.12. The court
specifically determined that pursuant to R.C. 2929.13(B)(1) the defendant violated a term
of the conditions of bond and, therefore, the court had discretion to impose a prison term
as a sentence. The court imposed a prison sentence of 12 months and gave the
defendant jail-time credit for 78 days of incarceration.
Potential assignments of error
{¶ 6} Although counsel found no merit to the appeal, he identifies, in his brief, two
possible assignments of error for our consideration. The first potential error concerns the
trial court’s denial of the motion for intervention in lieu of conviction. Pursuant to R.C.
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2951.041(A)(1), a court may deny a request for intervention without a hearing. State v.
Nealeigh, 2d Dist. Champaign No. 2010 CA 28, 2011-Ohio-1416, ¶ 7. “Alleged error in
the denial of a motion for intervention in lieu of conviction without a hearing does not affect
a criminal defendant’s substantial rights. Therefore, it is not subject to appellate review.”
State v. Stanton, 2d Dist. Montgomery No. 25298, 2013-Ohio-1825, ¶ 2. We agree with
counsel that any argument to the contrary is frivolous.
{¶ 7} Counsel also indicates that a potential issue may arise from the trial court’s
prison sentence for a fifth-degree felony. An offender who violates a term of the conditions
of bond as set by the court does not qualify for mandatory community control. R.C.
2929.13(B)(1)(b)(iii). Long failed to report at least twice and had warrants issued for her
arrest. Therefore, the trial court had discretion to impose a prison sentence and an
argument to the contrary is frivolous.
Anders Review
{¶ 8} We also have performed our duty under Anders to conduct an independent
review of the record. We thoroughly have reviewed the docket, the various filings, the
written transcript of the plea hearing, and the sentencing disposition. We have found no
non-frivolous issues for review. Accordingly, the judgment of the Greene County Common
Pleas Court is affirmed.
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FAIN, J., concurs.
FROELICH, J., concurring:
{¶ 9} I agree with Judge Donovan’s dissent in State v. Rice, 180 Ohio App.3d
599, 2009-Ohio-162, 906 N.E.2d 506 (2d Dist.) and would find that an alleged error in the
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denial of an ILC motion is subject to appellate review. However, on this record, I would
find that such an appeal would not have arguable merit and, therefore, concur in the
affirmance.
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Copies mailed to:
Elizabeth A. Ellis
J. David Turner
Christina M. Long
Hon. Michael A. Buckwalter
State v. Long
Combined Opinion