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State v. Ball

Court: Ohio Court of Appeals
Date filed: 2020-12-11
Citations: 2020 Ohio 6638
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[Cite as State v. Ball, 2020-Ohio-6638.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2019-CA-54
                                                 :
 v.                                              :   Trial Court Case No. 2018-CR-823
                                                 :
 COURTNEY N. BALL                                :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 11th day of December, 2020.

                                            ...........

MARCY VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 2541 Shiloh Springs Road, Trotwood,
Ohio 45426
      Attorney for Defendant-Appellant

                                           .............




HALL, J.
                                                                                          -2-




       {¶ 1} Courtney N. Ball appeals from her conviction for aggravated robbery in

violation of R.C. 2911.01(A)(1), a felony of the first degree, after a guilty plea. The trial

court imposed a prison sentence of six years on March 7, 2019. On September 4, 2019,

Ball filed a motion for delayed appeal, which we granted on October 7, 2019, and we

appointed counsel to represent her. Her appellate 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), asserting

the absence of any meritorious issues for appeal. On March 2, 2020, we notified Ball that

her counsel found no meritorious claims to present on appeal, and we granted her 60

days to file a pro se brief assigning any errors for review. We later extended that time due

to the Ohio Supreme Court’s Covid-19 Tolling Order (3/27/2020 Administrative Action,

2020-Ohio-1166). In an order filed on September 2, 2020, we notified Ball that her time

for filing a pro se brief would expire on October 21, 2020. She has not filed a brief.

       {¶ 2} Under Anders, we must determine, “after a full examination of all the

proceedings,” whether the appeal is “wholly frivolous.” Anders at 744; Penson v. Ohio,

488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). A frivolous appeal is one that

presents issues lacking arguable merit, which means that, “on the facts and law involved,

no responsible contention can be made that it offers a basis for reversal.” State v.

Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing State v. Pullen, 2d

Dist. Montgomery No. 19232, 2003-Ohio-6078. “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.” Id. at ¶ 7, citing Pullen.

       {¶ 3} We have conducted our independent review of the record under Penson, and
                                                                                       -3-


we agree with appellate counsel that there are no non-frivolous issues for review.

Consequently, we affirm the trial court’s judgment.

                                 I. Procedural History

      {¶ 4} On October 19, 2018, Ball was indicted for two counts of aggravated robbery,

(deadly weapon and serious physical harm) regarding an incident which occurred on

October 9, 2018. The record reveals that on that date the victim, Nicholas Price, traveled

to Fairborn from Marysville, Ohio to meet with an old friend, Jordan Young. Young had

invited Price to Ball’s apartment so that Price could buy some jewelry for $1650, because

Young was having a hard time finding a job.

      {¶ 5} Price, who was with two friends, met Young outside of Ball’s apartment.

Young told Price his friends could not enter the apartment and would have to wait

outside. Price followed Young into the apartment, where they both took seats. Another

man, later identified as DeAndre DaCosta, came out of the kitchen armed with a gun.

DaCosta ordered Price to empty his pockets. When Price did not comply, DaCosta hit

him in the head with the butt of the gun. DaCosta hit Price 5-6 times in the face with

the gun. They were joined by Christopher Lyons who put Price in a chokehold. Ball

and another woman by the name of Autum Reynolds also joined in. The four people

inside the apartment (apparently not including Young, who ran out the back door)

were able to remove $1650 from Price’s pocket and also took a chain he was wearing.

They unsuccessfully attempted to steal his watch and belt as well.

      {¶ 6} Price suffered a concussion, required stitches for his head wounds, and

has had kidney issues as a result of the assault. He was hospitalized for seven days.

      {¶ 7} At the December 31, 2018 plea hearing, the trial court conducted a thorough
                                                                                           -4-


Crim.R. 11 colloquy, including discussion of the constitutional rights Ball was waiving, the

fact that there was a presumption of a prison term, that the maximum sentence was 11

years in prison and the State was recommending a 7-year prison sentence, and that she

would be on post-release control for five years. Ball agreed to be responsible for

restitution in the amount of $37,171.39, with the specific understanding that if it were later

discovered that there was a third-party payment of part of those medical expenses, her

restitution would only be for the balance. The court found that the “plea and waiver of

Constitutional Rights are voluntary, intelligent, and knowingly made.” Transcript of Guilty

Plea at 18.

       {¶ 8} At the sentencing hearing on March 7, 2019, the court stated: “The Court

has considered the statements of the parties, the Pre-Sentence Report, the purposes and

principles of sentencing, and the Court has balanced the seriousness and recidivism

factors pursuant to 2929.12.” Transcript of Final Disposition at 6. The court stated that the

presumption of a prison term had not been overcome and that community control

sanctions would demean the seriousness of the offense. The court sentenced Ball to six

years in prison, credited her for jail time served, imposed correct post-release control,

imposed the indicated restitution, did not impose a fine, and waived court costs.1

                                        II. Analysis

       {¶ 9} The Anders brief does not suggest any potential errors of the trial court;

consequently, we rely on our independent review. We have performed our duty to



1 According to the Ohio Department of Rehabilitation and Correction website, Christopher
Lyons, DeAndre DaCosta, Autum Reynolds, and Jordan Young are serving sentences for
this aggravated robbery or complicity therein for terms of seven, seven, five, and ten years
respectively.
                                                                                         -5-


independently conduct a thorough and complete examination of all the proceedings to

decide whether this appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct.

346, 102 L.Ed.2d 300 (1988), citing Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d

493.

       {¶ 10} Our review included scrutiny of the entire record, including the docketed

filings, the presentence investigation report (PSI), and the plea and sentencing hearing

transcripts. We agree with appointed counsel's assessment that there are no appealable

issues with arguable merit. The trial court conducted a thorough and complete Crim.R.

11 plea hearing. The Court concluded that Ball knowingly, voluntarily, and intelligently

waived her rights and entered her pleas, and there is no evidence to the contrary.

       {¶ 11} With regard to the sentence imposed, the trial court indicated it had

considered the record and the appropriate statutory considerations for sentencing. The

sentence was within the statutory range for aggravated robbery and was not contrary to

law. “[A]n appellate court may vacate or modify a felony sentence on appeal only if it

determines by clear and convincing evidence that the record does not support the trial

court's findings under relevant statutes or that the sentence is otherwise contrary to law.”

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. We simply

do not find any reasonable, potentially meritorious argument in the circumstances of this

case that would support Ball’s cause.

       {¶ 12} We note from our detailed review that, after the plea and shortly before

sentencing, Ball sent a handwritten note to the court that referenced her December 31,

2018 plea. The court filed a copy of the communication on March 1, 2019. She wrote:

“At this time I would like to withdraw my plea. I’m requesting another court date to discuss
                                                                                       -6-


my case with my attorney Joe Coates present. I believe the length of confinement is to[o]

long. I would like to make you aware that I have a 7 month old daughter that’s in juvenile

court and I’m battling to get my Aunt Teresa custody. Can you please take this into

consideration and schedule me a new hearing.” Id. We conclude that this communication

does not present an issue of arguable merit for at least four reasons. First, Ball’s

correspondence was not a filed motion, and a defendant represented by counsel is not

permitted to file pro se motions on her own behalf. State v. Martin, 103 Ohio St.3d 385,

2004-Ohio-5471, 816 N.E.2d 227, ¶ 33. Second, Ball’s request that she have another

proceeding with her counsel present did occur when she had a sentencing hearing on

March 7, 2019. At that time, there was no discussion on the record about Ball’s

correspondence. However, her counsel did say “I know we discussed the case at length

in chambers, your Honor…. unfortunately, we’re here with this and Courtney understands

that. You know, she’s got to deal with this, the consequences of what, what’s happened

here.” Transcript of Final Disposition at 4-5. Ball herself was given an opportunity to

directly address the court and said nothing about the issues raised in her correspondence.

Third, her correspondence provided no reason to change her plea except that she thought

the term of the sentence, which was at that point had not been imposed, was too long; it

did not indicate that her request was anything other than a change of heart which is not

enough to withdraw a plea. State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-

Ohio-6181, ¶ 10. And fourth, there is nothing in this record to determine what the

conversation was between Ball and her counsel prior to sentencing. We know not whether

she still wanted to withdraw her plea, whether she asked her lawyer to file such a motion,

or whether perhaps she recognized that there was no basis for plea withdrawal or that
                                                                                     -7-


the evidence against her was overwhelming. Because these are matters outside the

record, the attendant circumstances must be presented by a motion for postconviction

relief. “An argument grounded on matters outside the record can only be addressed by a

post conviction relief motion.” State v. Laster, 2d Dist. Montgomery No. 19387, 2003-

Ohio-1564, ¶ 8. For each and all of these reasons, we do not find that the March 1, 2019

correspondence raises any appealable issues with arguable merit.

                                      III. Conclusion

       {¶ 13} Our independent review of the record reveals no non-frivolous issues for

appeal. We therefore agree with appellate counsel that Ball’s appeal is frivolous. The

judgment of the trial court is therefore affirmed.



                                      .............



DONOVAN, J. and WELBAUM, J., concur.




Copies sent to:

Marcy Vonderwell
Nicole Rutter-Hirth
Courtney N. Ball
Hon. Stephen Wolaver