[Cite as State v. Henry, 2022-Ohio-4315.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2022-CA-10
:
v. : Trial Court Case No. 2021-CR-753
:
JAMES HENRY, II : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of December, 2022.
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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
COLIN P. COCHRAN, Atty. Reg. No. 0098448, P.O. Box 293043, Dayton, Ohio 45429
Attorney for Defendant-Appellant
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TUCKER, P.J.
{¶ 1} James Henry II appeals from his conviction on one count of aggravated drug
possession, a fifth-degree felony.
{¶ 2} Henry’s appointed appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of
non-frivolous issues for review. We concur in counsel’s assessment. Accordingly, the trial
court’s judgment will be affirmed.
I. Background
{¶ 3} A grand jury indicted Henry on charges of aggravated drug possession and
illegal conveyance of drugs into a detention facility. He subsequently pled guilty to
aggravated drug possession in exchange for dismissal of the illegal-conveyance charge.
The plea agreement also provided for the preparation of a presentence-investigation
report prior to sentencing. The trial court later held a sentencing hearing at which it heard
from Henry and his attorney. After reviewing a presentence-investigation report and
considering the statutory “seriousness” and “recidivism” factors and other sentencing
criteria, the trial court imposed a 12-month prison term with two years of discretionary
post-release control. It ordered the prison term to be served consecutive to an existing
12-month prison term Henry was serving in another case.
II. Analysis
{¶ 4} Under Anders, we must conduct an independent review to determine whether
Henry’s appeal is wholly frivolous. “Anders equates a frivolous appeal with one that
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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. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. 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., citing State v. Pullen, 2d Dist. Montgomery
No. 19232, 2002-Ohio-6788, ¶ 4.
{¶ 5} Appointed appellate counsel concludes that Henry’s guilty plea was entered
knowingly, intelligently, and voluntarily in compliance with Crim.R. 11(C). Counsel also
notes that the trial court’s sentence was within the authorized range and was not contrary
to law. Counsel points out that the trial court considered the statutory seriousness and
recidivism factors and other criteria that guide felony sentencing. Counsel notes too that
the trial court made all required consecutive-sentence findings and incorporated them into
its judgment entry. Finally, counsel indicates that he can find no basis for an ineffective-
assistance claim.
{¶ 6} Notwithstanding the foregoing conclusions, appointed appellate counsel
asks us to consider certain concerns Henry expressed to counsel. As conveyed by
counsel, those concerns include (1) Henry’s not being told by his trial counsel that a
presentence investigation was part of the plea agreement and (2) personal bias against
him by the trial court judge. Appointed counsel concludes that these issues lack arguable
merit, and we agree. Henry acknowledged during the plea hearing that a presentence
investigation would be conducted. See January 14, 2022 Plea Transcript at 6. As for his
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concerns about judicial bias, he did not raise any concerns on the record below, and we
see no basis for a finding of judicial bias.
{¶ 7} Finally, in accordance with our responsibilities under Anders, we have
conducted an independent review of the record and have found no non-frivolous issues
for appeal. With regard to Henry’s plea, the trial court did fail to inform him that upon
accepting the guilty plea it could proceed immediately with sentencing. See Crim.R.
11(C)(2)(b). We have not found this specific advisement in the plea-hearing transcript.
But the omission indisputably was non-prejudicial. The trial court made clear to Henry
that it in fact was not going to sentence him immediately and that it was going to order a
presentence investigation first. See January 14, 2022 Transcript at 6. In addition, the plea
form Henry signed correctly advised him that upon acceptance of his plea, the trial court
could proceed with sentencing. Because the trial court postponed sentencing and the
plea form contained the proper advisement, we see no possible prejudice stemming from
the trial court's failure to state that it could proceed immediately with sentencing. We
repeatedly have found frivolous any argument that such an omission resulted in a
prejudicially-defective plea. See State v. Reed, 2d Dist. Montgomery No. 27215, 2017-
Ohio-7001, ¶ 8; State v. Strawsburg, 2d Dist. Clark No. 2018-CA-14, 2018-Ohio-4764,
¶ 5; State v. Marshall, 2d Dist. Montgomery No. 28131, 2019-Ohio-646, ¶ 7.
{¶ 8} With regard to sentencing, we see no non-frivolous issue regarding the trial
court’s imposition of a 12-month prison sentence consecutive to an existing sentence
Henry was serving. The trial court noted that his criminal history included seven prior
felony offenses, multiple misdemeanors, and five prior prison terms. Any argument that
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the record clearly and convincingly fails to support the trial court’s consecutive-sentence
findings would be wholly frivolous.
{¶ 9} We also have considered a potential issue regarding a breach of Henry’s
plea agreement by the trial court. As noted above, the agreement provided for Henry to
plead guilty to aggravated drug possession in exchange for dismissal of an illegal-
conveyance charge and the preparation of a presentence investigation report prior to
sentencing. Consequently, when accepting Henry’s guilty plea, the trial court explained
to him that it would “dismiss count two, order a presentence investigation and schedule
sentencing for a later date[.]” See January 14, 2022 Transcript at 6.
{¶ 10} The record reflects, however, that the trial court apparently did not order a
presentence investigation. In response to a July 29, 2022 remand from this court to clarify
what, if any, presentence investigation report it reviewed when sentencing Henry, the trial
court stated that it was “not certain.” It explained, however, that it believed it had relied on
an existing presentence investigation report that had been prepared just a few months
earlier in another drug case involving Henry. As a result, the trial court made that report
part of the record in this case.
{¶ 11} The trial court’s apparent failure to order a presentence investigation in this
case raises a potential issue regarding a breach of the plea agreement. We note,
however, that Henry and his counsel had a right to review and comment on any
presentence investigation report prior to sentencing. See R.C. 2951.03(B)(1) and (2).
They could have used that process to discover and to object to the trial court’s
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consideration of an existing report in lieu of having a new one prepared.1 Given counsel’s
failure to object to the trial court’s consideration of the old report, appellate review would
be limited to plain error, which does not exist. Indeed, we see no conceivable prejudice
to Henry arising from the trial court’s consideration of an existing presentence
investigation report that was only months old.
{¶ 12} In State v. Buckley, 2d Dist. Darke No. 2021-CA-9, 2022-Ohio-1873, which
also was an Anders appeal, we similarly found no non-frivolous issue arising from the trial
court’s consideration of an existing presentence investigation report that was months old.
Id. at ¶ 11. The only apparent difference between Buckley and the present case is that
the preparation of a presentence investigation report does not appear to have been a
term of a plea agreement in Buckley. But even if the trial court’s failure to have a new
report prepared in Henry’s case constituted a breach of his agreement, Buckley supports
the proposition that he was not prejudiced, and we find no plain error. See also State v.
Leonard, 8th Dist. Cuyahoga No. 88299, 2007-Ohio-3745, ¶ 19-20 (finding no plain error
where the defendant failed to object to the trial court’s reliance on a three-year-old
presentence investigation report).
III. Conclusion
{¶ 13} Having found no non-frivolous issues for appellate review, we affirm the
judgment of the Clark County Common Pleas Court.
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WELBAUM, J. and LEWIS, J., concur.
1 In fact, it appears that defense counsel may have reviewed the report upon which the
trial court relied. At sentencing, defense counsel began by noting that he had “reviewed
the pretrial investigation.” January 20, 2022 Transcript at 3.
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Copies sent to:
Ian A. Richardson
Colin P. Cochran
James Henry, II
Hon. Douglas M. Rastatter