[Cite as State v. Roberson, 2016-Ohio-3206.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-15-042
Appellee Trial Court No. 2015 CR 033
v.
Eric Roberson DECISION AND JUDGMENT
Appellant Decided: May 27, 2016
*****
Paul A. Dobson, Wood County Prosecuting Attorney,
David E. Romaker, Jr. and David T. Harold, Assistant
Prosecuting Attorneys, for appellee.
Lawrence A. Gold, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Eric Roberson, appeals the June 1, 2015 judgment of
the Wood County Court of Common Pleas which, following his guilty plea to one count
of attempted trespass in a habitation, was sentenced to 12 months of imprisonment. For
the reasons that follow, we affirm.
{¶ 2} On February 19, 2015, appellant was indicted on one count of attempted
burglary, R.C. 2923.02, 2911.12(A)(2) and 2911.12(D). Appellant entered a not guilty
plea to the charge. On April 24, 2015, appellant withdrew his not guilty plea and entered
a plea of guilty to an amended charge of attempted trespass in a habitation, R.C. 2923.02,
2911.12(B)(E), a fifth degree felony. The state recommended an eight-month prison
sentence.
{¶ 3} Appellant’s sentencing hearing was held on May 29, 2015, and the court
sentenced him to 12 months in prison to be served consecutive to his prison term
following his May 26, 2015 conviction in a Lucas County, Ohio, case. This appeal
followed.
{¶ 4} Appellant has appealed the conviction and sentence to this court through
appointed counsel. Appellant’s counsel advises the court, however, under procedures
announced in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
that he has thoroughly examined the record, discussed the case with appellant, and is
unable to find meritorious grounds for appeal. Following Anders procedure, appellate
counsel filed a brief setting forth potential grounds for appeal and also filed an affidavit
and motion to withdraw as counsel.
{¶ 5} Counsel notified appellant of his inability to find meritorious grounds for
appeal and provided appellant with copies of both the Anders brief and his motion to
withdraw. Counsel advised appellant of his right to file his own appellate brief.
Appellant has not filed an additional brief.
2.
{¶ 6} In the Anders brief, counsel has asserted two potential assignments of error:
I: The trial court did not comply with the directives of R.C. 2929.11
and 2929.12 in sentencing appellant to a maximum sentence in the Ohio
Department of Rehabilitation and Corrections.
II: The trial court erred to the prejudice of appellant by imposing a
consecutive sentence without making proper judicial findings under R.C.
2929.14(C).
{¶ 7} In counsel’s potential assignments of error, he contends that the trial court
erred by failing to properly consider the relevant sentencing statutes. We note that the
court reviews felony sentences under the two-prong approach set forth in R.C.
2953.08(G)(2). State v. Marcum, Slip Opinion No. 2016-Ohio-1002. R.C. 2953.08(G)(2)
provides that an appellate court may increase, reduce, modify, or vacate and remand a
disputed sentence if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 8} Appellant’s counsel argues that in sentencing appellant to a maximum, 12-
month consecutive sentence the trial court failed to comply with the sentencing
guidelines in R.C. 2929.11, 2929.12 and 2929.14(C). Although the abuse of discretion
3.
standard set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, is no longer controlling in appellate review of felony sentencing, we recognized in
State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, that Kalish still can
provide guidance for determining whether a sentence is clearly and convincingly contrary
to law.
{¶ 9} Significantly, Kalish determined that a sentence was not clearly and
convincingly contrary to law in a scenario in which it found that the trial court had
considered the R.C. 2929.11 purposes and principles of sentencing, had considered the
R.C. 2929.12 seriousness and recidivism factors, had properly applied postrelease
control, and had imposed a sentence within the statutory range. Kalish at ¶ 18;
Tammerine at ¶ 15.
{¶ 10} We first note that the sentence imposed was within the statutory range. At
appellant’s May 29, 2015 sentencing hearing, the trial court noted that there were no
factors “decreasing the seriousness of the offense” and that there were four factors
indicating that recidivism was more likely. See R.C. 2929.12. The factors included that
appellant was on probation at the time he committed the offense, he had previously been
adjudicated a delinquent child, he had a history of criminal convictions and had not
responded favorably to sanctions, and he showed no real remorse for the current offense.
The court noted that appellant’s act stole the victims’ feeling of security in their home.
{¶ 11} Appellant also contends that his consecutive sentence is contrary to law.
The court noted that a consecutive sentence was necessary based on the need to “protect
4.
the public from future crime and to punish the offender and that consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct (commencing in
1999, and which the court verbally outlined) and to the danger the offender poses to the
public.”
{¶ 12} The court further found:
[T]he Defendant committed one or more offenses while he was
under a sanction, or at least two offenses were committed as part of one or
more courses of conduct, and the harm caused was so great that no single
prison term adequately reflects the seriousness of the Defendant’s conduct,
and certainly that the Defendant’s criminal history demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the Defendant * * *.
{¶ 13} Appellant was also given postrelease control and appeal notifications and
was ordered to pay the costs of prosecution. In the court’s June 1, 2015 judgment entry,
it made similar findings and specifically referenced R.C. 2929.11, 2929.12 and
2929.14(C)(4).
{¶ 14} Based on the foregoing, we find that the trial court complied with the
felony sentencing statutes in sentencing appellant to a maximum, consecutive sentence.
Accordingly, appellant’s counsel’s first and second potential assignments of error are not
well-taken.
5.
{¶ 15} This court, as required under Anders, has undertaken an independent
examination of the record to determine whether any issue of arguable merit was
presented for appeal. We have found none. Accordingly, we find this appeal is without
merit and wholly frivolous. We grant the motion of appellant’s counsel to withdraw as
counsel in this appeal and affirm the judgment of the Wood County Court of Common
Pleas. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. The
clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.
State v. Roberson
Combined Opinion