[Cite as State v. Page, 2016-Ohio-7326.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2015-CA-27
:
v. : T.C. NO. 12CR13
:
JORDAN H. PAGE : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___14th___ day of _____October_____, 2016.
...........
KEVIN TALEBI, Atty. Reg. No. 0069198, Prosecutor’s Office, 200 N. Main Street, Urbana,
Ohio 43078
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 E. Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} Defendant-appellant Jordan H. Page appeals a decision of the Champaign
County Court of Common Pleas, Criminal Division, revoking his community control for
violations of his community control as a result of a positive marijuana test in a separate
case in Franklin County, Ohio, Case No. 2011 CR 6511. The trial court sentenced Page
to seventeen months in jail, to be served concurrently to the sentence he was serving
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from Franklin County. Page’s appointed counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and now seeks leave to
withdraw as counsel.
FACTS and PROCEDURAL HISTORY
{¶ 2} On January 5, 2012, Page was indicted in Champaign County Common
Pleas Court for two counts of breaking and entering, in violation of R.C. 2911.13(A)(C),
both felonies of the fifth degree; three counts of theft, in violation of R.C.
2913.02(A)(1)(B)(2), all felonies of the fifth degree; one count of safecracking, in violation
of R.C. 2911.31(A), a felony of the fourth degree; and criminal damaging, in violation of
R.C. 2909.06(A), a misdemeanor of the second degree.
{¶ 3} On April 17, 2012, Page pled guilty to one count each of breaking and
entering, safecracking, and theft. In return for Page’s pleas, the State agreed to dismiss
the remaining counts in the indictment. After accepting Page's guilty pleas, the trial court
referred the matter for a presentence investigation report (“PSI”).
{¶ 4} At the sentencing hearing held on June 25, 2012, the trial court sentenced
Page to three years of community control sanctions. The trial court also ordered Page
to complete the West Central Program, fined him $300.00, and ordered him to pay
$2,500.00 in restitution. Thereafter, on June 5, 2014, an order was issued suspending
Page’s community control, and a probable cause hearing was held before the trial court
on November 19, 2014. On November 21, 2014, the trial court issued a journal entry
extending Page’s community control until December 26, 2015.
{¶ 5} On July 15, 2015, the Champaign County Probation Department filed a notice
of supervision violation against Page. A revocation hearing was held before the trial
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court on August 7, 2015. Specifically, Page tested positive for marijuana while under
supervision in Franklin County and was found in violation of that court’s community control
sanctions. The trial court in Franklin County revoked his community control and imposed
sentence. Based on his rule violations in Franklin County (which violated the terms of
Champaign County supervision as well), the trial court revoked Page’s community control
and sentenced him to seventeen months in jail to be served concurrently to the sentence
he was serving in Case No. 2011 CR 6511 in Franklin County. The trial court also noted
that Page remains liable for the payment of any court costs, fines, restitution, and court-
appointed legal fees that were imposed in his judgment entry of conviction when he was
originally sentenced to community control in June of 2012.
{¶ 6} Based on the belief that no prejudicial error occurred below and that any
grounds for appeal would be frivolous, Page’s appellate counsel filed a motion to withdraw
pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
ANDERS STANDARD
{¶ 7} Anders outlines the procedure counsel must follow to withdraw as counsel
due to the lack of any meritorious grounds for appeal. In Anders, the United States
Supreme Court held that if appointed counsel, after a conscientious examination of the
case, determines the appeal to be wholly frivolous, he or she should advise the court of
that fact and request permission to withdraw. Anders at 744. This request, however,
must be accompanied by a brief identifying anything in the record that could arguably
support the appeal. Id. Further, counsel must also furnish the client with a copy of
the brief, and allow the client sufficient time to file his or her own brief, pro se. Id.
{¶ 8} Once the appellant's counsel satisfies these requirements, this court must
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fully examine the proceedings below to determine if any arguably meritorious issues
exist. Id. If we determine that the appeal is wholly frivolous, we may grant counsel's
request to withdraw and dismiss the appeal without violating constitutional requirements,
or we may proceed to a decision on the merits if state law so requires. Id.
{¶ 9} In this case, appointed counsel fully complied with the requirements
of Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Page has failed to file a pro
se brief.
{¶ 10} Page’s appointed counsel states in her Anders brief that she extensively
reviewed the record, including the transcript of the proceedings, and concluded she could
not make any meritorious arguments on Page's behalf. Nevertheless, counsel presents
the following potential assignment of error as follows:
{¶ 11} “MR. PAGE’S [SEVENTEEN] MONTH PRISON SENTENCE IS CLEARLY
AND CONVINCINGLY CONTRARY TO LAW AND AN ABUSE OF THE TRIAL COURT’S
DISCRETION.”
{¶ 12} In his sole potential assignment, appointed counsel contends that the trial
court’s decision to sentence Page to seventeen months in jail is contrary to law and an
abuse of discretion.
{¶ 13} A trial court has discretion to impose a prison sentence that is within the
statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶ 37.
But in exercising that discretion, the trial court must “carefully consider” the statutory
sentencing guidelines set forth in R.C. 2929.11 and 2929.12, as well as the “statutes that
are specific to the case itself.” Id. at ¶ 38. A reviewing court will reverse a sentence only
if it determines “by clear and convincing evidence that the record does not support the
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trial court's findings under relevant statutes or that the sentence is otherwise contrary to
law.” State v. Marcum, Ohio Sup. Ct. Slip Opinion No. 2016–Ohio–1002. Significantly,
the Marcum court also held “that appellate courts may not apply the abuse-of-discretion
standard in sentencing-term challenges.” Id. at ¶ 10.
{¶ 14} In the case at bar, the trial court imposed a sentence within the permissible
statutory range, and the trial court ordered the seventeen month sentence to run
concurrently with the sentence that had been imposed in Franklin County. Further, this
court has consistently recognized that a sentencing court complies with its mandatory
duty to consider the sentencing factors of R.C. 2929.11 and 2929.12 if its sentencing
entry states that it has considered those factors. State v. Battle, 2d Dist. Clark No. 2014
CA 5, 2014–Ohio–4502, ¶ 15, citing State v. Miller, 2d Dist. Clark No. 09–CA–28, 2010–
Ohio–2138, ¶ 43. Here, the trial court's judgment entry of conviction not only indicates
that it considered the sentencing factors contained in R.C. 2929.11 and R.C. 2929.12,
but the trial court expressly stated as much in open court during the sentencing hearing.
{¶ 15} In sum we are unable to find “by clear and convincing evidence that the
record does not support the sentence,” Marcum at ¶ 23, and the sentence is
not contrary to law.
CONCLUSION
{¶ 16} Pursuant to our responsibilities under Anders, we have conducted an
independent review of the entire record, including the pre-sentence investigation
report. Having done so, we agree with the assessment of appointed counsel that there
are no arguably meritorious issues to present on appeal.
{¶ 17} Therefore, no potential assignments of error with arguable merit having
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been found, the judgment of the trial court is affirmed.
..........
FAIN, J. and HALL, J., concur.
Copies mailed to:
Kevin Talebi
Lori R. Cicero
Jordan H. Page
Hon. Nick A. Selvaggio