[Cite as State v. Ray, 2016-Ohio-8235.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
MARK A. RAY : Case No. 2016CA0003
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 15CR0090
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON GIVEN JEFFREY A. MULLEN
318 Chestnut Street 239 North Fourth Street
Coshocton, OH 43812 Coshocton, OH 43812
Coshocton County, Case No. 2016CA0003 2
Farmer, P.J.
{¶1} Appellant, Mark A. Ray, entered a guilty plea to (1) Attempted Murder in
violation of R.C. 2903.02(A), a felony of the first degree, with a firearm specification, (2)
Felonious Assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, also
with a firearm specification, (3) Tampering with Evidence in violation of R.C.
2921.12(A)(1), a felony of the third degree, and (4) Carrying Concealed Weapons in
violation of R.C. 2929.12(A)(2), a felony of the fourth degree.
{¶2} Appellant asked the victim, who was Appellant's former girlfriend, to meet
him so he could give her gifts for her family. Appellant also indicated he had something
for the victim, but would not tell her what it was. She agreed to meet him in a public
location. Appellant expressed his desire to reconcile, however, the victim indicated she
did not want to reconcile. Upon hearing her decision, Appellant reached in his
waistband and pulled out a shiny object and shot the victim in the face.
{¶3} Appellant pled guilty to the charges contained in the indictment. The State
agreed to remain silent on the issue of sentencing. The parties also agreed to allow a
presentence investigation to be conducted.
{¶4} Appellant was sentenced to a total term of 15 years and six months in
prison. Appellant filed a timely notice of appeal.
{¶5} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), rehearing denied, 388 U.S. 924 (1967),
indicating that the within appeal was wholly frivolous. Counsel for Appellant has raised
one potential assignment of error asking this Court to determine whether the trial court
Coshocton County, Case No. 2016CA0003 3
erred in the sentence imposed upon Appellant. Appellant was given an opportunity to
file a brief raising additional assignments or error but none was filed.
I
{¶6} "THE TRIAL COURT'S SENTENCE WAS CONTRARY TO LAW IN THE
IMPOSITION OF MAXIMUM, CONSECUTIVE SENTENCES."
{¶7} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant's counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also
determines that the appeal is wholly frivolous, it may grant counsel's request to
withdraw and dismiss the appeal without violating constitutional requirements, or may
proceed to a decision on the merits if state law so requires. Id.
{¶8} Counsel in this matter has followed the procedure in Anders v. California,
386 U.S. 738 (1967).
{¶9} We now will address the merits of Appellant's potential Assignment of
Error.
Coshocton County, Case No. 2016CA0003 4
I
{¶10} R.C. 2953.08, Subsection (G)(2), sets forth the appellate court's standard
of review for sentences as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division 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.
{¶11} In this case, because Appellant was sentenced to multiple prison terms for
multiple offenses, R.C. 2929.14(C)(4) governs the sentences and provides as follows:
Coshocton County, Case No. 2016CA0003 5
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to
serve the prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶12} We have reviewed the sentencing transcript and find the record does
support the sentences imposed under R.C. 2929.14(C)(4). Further, the sentences
Coshocton County, Case No. 2016CA0003 6
imposed are within the prescribed sentencing range and are not otherwise contrary to
law. The proposed assignment of error is overruled.
{¶13} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal.
Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request
to withdraw, and affirm the judgment of the Court of Common Pleas of Coshocton
County, Ohio.
By Farmer, P.J.
Delaney, .J. and
Baldwin, J. concur.
SGF/as 1124