[Cite as State v. Rush, 2016-Ohio-4895.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-54
:
v. : Trial Court Case No. TRC1503124A
:
MATTHEW J. RUSH : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of July, 2016.
...........
BETSY DEEDS, Atty. Reg. No. 0076747, Prosecuting Attorney, City of Fairborn, 510
West Main Street, Fairborn, Ohio 45324
Attorney for Plaintiff-Appellee
SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, P.O. Box 752345, Dayton, Ohio 45475
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Matthew J. Rush, appeals from the conviction and
sentence he received in the Fairborn Municipal Court after pleading guilty to one count of
operating a vehicle while under the influence of drugs or alcohol (OVI). In proceeding
with the appeal, Rush’s assigned counsel filed a brief under the authority of Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating there are no
issues with arguable merit to present on appeal. After conducting a review as prescribed
by Anders, we also find no issues with arguable merit. Accordingly, the judgment of the
trial court will be affirmed.
{¶ 2} On April 18, 2015, Rush was charged with two OVI counts, one in violation
of R.C. 4511.19(A)(1)(a) and the other in violation R.C. 4511.19(A)(1)(d). He was also
charged with operating a vehicle left of center in violation of R.C. 4511.25 and failure to
wear a seatbelt in violation of R.C. 4513.263(B)(1). Rush initially pled not guilty to the
charges, filed discovery requests, and then moved to preserve evidence of any video or
audio tapes, which the trial court granted. After attending a pretrial hearing, Rush
appeared at court on August 27, 2015, and entered a plea of guilty to the OVI charge
under R.C. 4511.19(A)(1)(d), a misdemeanor of the first degree. In exchange for his
plea, the State agreed to dismiss the remaining charges. Rush had three prior OVI
convictions dating back to 2006.
{¶ 3} Prior to Rush’s guilty plea, the trial court engaged in a plea colloquy that
complied with the requirements set forth for “petty offense” misdemeanors under Crim.R.
11(E). See State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059,
¶ 13-14 (finding a first-degree misdemeanor OVI constituted a “petty offense” for
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purposes of Crim.R. 11(E), and that under that rule, the trial court was only required to
inform the defendant of the effect of his guilty plea, i.e., that his guilty plea was a complete
admission of guilt).
{¶ 4} After accepting Rush’s plea and finding him guilty, the trial court sentenced
Rush to 180 days of jail with 100 days suspended on the condition that he not commit a
similar violation within three years. As for the remaining 80 days, the trial court ordered
Rush to serve 20 days in jail and 60 days on house arrest with an alcohol monitor and
work release. The trial court also imposed a $450 fine, suspended Rush’s driver’s
license for three years with driving privileges via an interlock device, and placed him on
up to three years of supervised community control that included drug and alcohol
treatment.
{¶ 5} On September 11, 2015, Rush filed a notice of appeal from his conviction
and sentence and requested the appointment of appellate counsel. Following the
appointment of counsel, on February 26, 2016, Rush’s appellate counsel filed an Anders
brief indicating that there were no issues with arguable merit to present on appeal. On
March 3, 2016, we notified Rush that his counsel found no meritorious claim for review
and granted him 60 days to file a pro se brief assigning any errors. Rush did not file a
pro se brief.
{¶ 6} Our task in this case is to conduct an independent review of the record as
prescribed by Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. In Anders cases,
the appellate court must conduct a thorough examination of the proceedings to determine
if the appeal is actually frivolous, and if it is, the court may “grant counsel’s request to
withdraw and then dismiss the appeal without violating any constitutional requirements,
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or the court can proceed to a decision on the merits if state law requires it.” State v.
McDaniel, 2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at
744. “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. “Anders equated a frivolous appeal with one that presents issues lacking in arguable
merit. An issue does not lack arguable merit merely because the prosecution can be
expected to present a strong argument in reply, or because it is uncertain whether a
defendant will ultimately prevail on that issue on appeal.” State v. Pullen, 2d Dist.
Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, “[a]n issue lacks arguable merit
if, on the facts and law involved, no responsible contention can be made that it offers a
basis for reversal.” Id.
{¶ 7} In conducting our independent review, Rush’s appellate counsel has
requested that we consider the following potential assignment of error:
APPELLANT’S SENTENCE WAS SO HARSH AND ARBITRARY AS TO
CONSTITUTE AN ABUSE OF DISCRETION BY THE TRIAL COURT.
{¶ 8} We apply an abuse of discretion standard of review to a suggestion that
misdemeanor sentences are excessive. State v. Fankle, 2015-Ohio-1581, 31 N.E.3d
1290, ¶ 18 (2d Dist.), citing State v. Peagler, 2d Dist. Montgomery No. 24426, 2012-Ohio-
737, ¶ 3. An abuse of discretion implies that the trial court’s attitude was unreasonable,
arbitrary, or unconscionable. (Citation omitted.) AAAA Enterprises, Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990). “It is to be expected that most instances of abuse of discretion will result in
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decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning process that
would support that decision.” Id.
{¶ 9} When sentencing for a misdemeanor offense, a trial court is guided by the
“overriding purposes of misdemeanor sentencing,” which are to protect the public from
future crime by the offender and others and to punish the offender. R.C. 2929.21(A);
State v. Collins, 2d Dist. Greene No. 2012-CA-2, 2012-Ohio-4969, ¶ 9. “To achieve
those purposes, the sentencing court [must] consider the impact of the offense upon the
victim and the need for changing the offender's behavior, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or the victim and the public.”
Id. The sentence imposed must be “reasonably calculated to achieve the two overriding
purposes of misdemeanor sentencing * * *, commensurate with and not demeaning to the
seriousness of the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar offenses committed by similar offenders.” R.C.
2929.21(B); Collins at ¶ 9.
{¶ 10} “A trial court is also required to consider the nature and circumstances of
the offense, whether there was a history of persistent criminal activity or character that
reveals a substantial risk of the offender committing another offense, and numerous other
factors related to the offender and the offense.” Collins at ¶ 10, citing R.C. 2929.22(B).
“However, in misdemeanor sentencing, there is no requirement that a trial court
specifically state the reasons for its sentence on the record.” (Citations omitted) Id. “If
the sentence imposed is within permissible statutory limits, a reviewing court will presume
that the trial court considered the sentencing factors in R.C. 2929.22(B), absent a showing
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to the contrary.” (Citation omitted.) State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-
6826, 844 N.E.2d 372, ¶ 9 (2d Dist.).
{¶ 11} In this case, Rush’s sentence is within the permissible statutory limits
provided for in R.C. 4511.19(G)(1)(a) and R.C. 2929.25(A). We note that while Rush
has three prior OVI convictions, the statutory “look back” period for determining the
appropriate penalty is six years, and none of Rush’s prior convictions were within six
years of the instant OVI offense. Therefore, the trial court properly considered the instant
OVI offense as the first OVI within six years, and imposed penalties within the limits
prescribed under R.C. 4511.19(G)(1)(a).
{¶ 12} Although the trial court did not specify its reasons for imposing the sentence
that it did, in light of the record, we cannot say the sentence was an abuse of discretion.
The record indicates that Rush has three prior OVI convictions that involved collisions
and an ongoing struggle with addiction. The record further indicates that at the time of
the OVI offense at issue, Rush had a blood-alcohol concentration of .167, which is twice
the legal limit. Based on these facts, we agree with counsel that the potential assignment
of error claiming an abuse of discretion at sentencing lacks arguable merit.
{¶ 13} Having independently reviewed the record as required by Anders, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we have found no non-frivolous issues for appeal.
Accordingly, the judgment of the trial court is affirmed.
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FROELICH, J. and HALL, J., concur.
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Copies mailed to:
Betsy Deeds
Scott A. Ashelman
Matthew J. Rush
Hon. Beth W. Root