State v. Evans

S
[Cite as State v. Evans, 2021-Ohio-732.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2020-CA-17
                                                 :
 v.                                              :   Trial Court Case No. 2020-CR-41
                                                 :
 RICKY THOMPSON EVANS, JR.                       :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                             Rendered on the 12th day of March, 2021.

                                            ...........

KEVIN TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor’s Office,
Appellate Division, 200 North Main Street, Urbana, Ohio 43078
       Attorney for Plaintiff-Appellee

K. GEORGE KORDALIS, Atty. Reg. No. 0089697, 130 West Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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

HALL, J.
                                                                                         -2-




        {¶ 1} Ricky Thompson Evans, Jr., appeals his convictions resulting from guilty

pleas to four charges: aggravated possession of drugs; operating a vehicle while under

the influence (OVI); and two counts of identity fraud. He was sentenced to an aggregate

22 months in prison. His 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 non-frivolous issues for appeal and asking permission to withdraw as counsel. On

November 16, 2020, we notified Evans that his counsel had found no meritorious claims

to present on appeal and granted Evans 60 days to file a pro se brief assigning any errors

for review. He has not filed a brief.

        {¶ 2} The background of the case is as follows: An Urbana police officer was

flagged down on February 9, 2020, by a woman who reported that a bank card was left

in an ATM. The officer saw Evans coming from the bank and asked him if the card was

his. He said it was. He was unable to provide identification. Further investigation revealed

the owner of the card was deceased. Evans was found to have another debit card of

another person and evidence of a transaction for that account. He later admitted he made

a false deposit of $300 with that card by submitting an envelope that did not contain a

deposit. He then withdrew $300. The police also found methamphetamine and a syringe

containing methamphetamine in his car. Evans’s eyes were red, his pupils were dilated,

and he was slurring his words. He failed standard field sobriety tests and refused a urine

test.

        {¶ 3} Evans was indicted on eight counts on March 2, 2020. With a negotiated plea

agreement, he pled guilty to aggravated possession of drugs, a fifth-degree felony; OVI,
                                                                                        -3-


an unclassified misdemeanor; and two counts of identity fraud, both fifth-degree felonies,

in exchange for dismissal of three more counts of felony identity fraud and one

misdemeanor drug instrument charge; the State also agreed not pursue other drug-

related charges or additional identity theft charges. On April 14, 2020, the trial court

conducted a complete and thorough Crim.R. 11 colloquy. Evans knowingly, intelligently

and voluntarily pled guilty to the charges.

       {¶ 4} A presentence investigation (PSI) was ordered and the case came before the

court for sentencing on May 13, 2020. The PSI indicated that Evans had multiple prior

felonies and multiple misdemeanors, failures at prior supervision, and several prior prison

terms. The record reveals the court considered the purposes and principles of sentencing

and included those considerations in its judgment entry of conviction. Evans was

sentenced to 9 months in prison on the drug charge, 6 months in jail on the OVI charge,

and 11 months in prison on each of the identity fraud charges. The sentences for identity

fraud were made consecutive to each other at sentencing after the court made the

statutory findings required for consecutive sentences under R.C. 2929.14(C)(4). The

court included those findings in the judgment entry. The remaining sentences were

ordered to be served concurrently, resulting in an aggregate sentence of 22 months.

Evans was correctly advised about post-release control.

       {¶ 5} Pursuant to 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.
                                                                                       -4-


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.

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

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

Consequently, we affirm the trial court’s judgment.

                             Potential assignments of error

       {¶ 7} In the Anders brief, Evans’s appointed appellate counsel, without specific

argument, requests that this court review two “potential assignments of error:” 1) whether

the trial court failed to comply with Crim.R. 11 when accepting Evans’s plea, and 2)

whether the trial court erred in sentencing Evans to 22 months in prison and by making

parts of the sentence consecutive.

       {¶ 8} The sentencing transcript reveals the trial court scrupulously conducted a

thorough and complete Crim.R. 11 plea hearing. Evans acknowledged that he understood

his rights, the charges and the plea agreement. There is no simply evidence to the

contrary. The trial court concluded that Evans knowingly, voluntarily, and intelligently

waived his rights and entered his pleas. The record unquestionably supports that

conclusion. Any argument to the contrary is frivolous

       {¶ 9} In regard to a potential assignment of error about Evans’s prison sentences,

nothing in the record suggests that the sentences were contrary to law. We have

repeatedly ruled that, based upon the language of R.C. 2953.08(G)(2), when a sentence

is not contrary to law, we may only vacate or modify a felony sentence if we find by clear
                                                                                       -5-


and convincing evidence that the record does not support the sentence. State v. Barnett,

2d Dist. Montgomery No. 27660, 2018-Ohio-4133, citing State v. Marcum, 

146 Ohio St. 3d 516

, 2016-Ohio-1002, 

59 N.E.2d 1231

. Here, given the Evans’s prior convictions and prior

prison sentences and his failures at prior supervision, there is simply no reasonable

argument that the trial court’s sentence was clearly and convincingly contrary to the

record. Moreover, the trial court made the consecutive sentence findings required by R.C.

2929.14(C)(4) at the sentencing hearing and included those findings in its judgment entry.

Those findings were supported by the record. Any potential assignment of error about

Evans’s sentences is frivolous.

                                    {¶ 10} Anders Review

      {¶ 11} We also have performed our duty under Anders to conduct an independent

review of the record. Our review included scrutiny of the entire record, including the

docketed filings, the PSI report, and the plea and sentencing hearing transcripts. We have

found no error and no non-frivolous issues for review.

      {¶ 12} We grant counsel’s request to withdraw from representation and affirm the

judgment of the Champaign County Common Pleas Court.

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



TUCKER, P. J. and DONOVAN, J., concur.


Copies sent to:

Kevin Talebi
K. George Kordalis
Hon. Nick A. Selvaggio

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