State v. Wolfe

S
[Cite as State v. Wolfe, 2021-Ohio-1672.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 28925
                                                 :
 v.                                              :   Trial Court Case No. 2020-CR-1494
                                                 :
 ERIC WOLFE                                      :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                              Rendered on the 14th day of May, 2021.

                                            ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327
     Attorney for Defendant-Appellant

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




WELBAUM, J.
                                                                                         -2-


       {¶ 1} Defendant-Appellant, Eric Wolfe, appeals from an order revoking his

community control sanctions and imposing sentence. On February 9, 2021, Wolfe’s

assigned 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), indicating there are no issues with arguable merit

to present on appeal. Counsel raised one potential assignment of error concerning the

fact that the sentence was contrary to law, but found no arguable merit in that claim.

       {¶ 2} On February 11, 2021, we notified Wolfe that his counsel found no

meritorious claims for review, and we granted him 60 days to file a pro se brief assigning

any errors. However, Wolfe did not file a pro se brief.

       {¶ 3} Also on February 11, 2021, the State filed a response to the Anders brief and

said it would not respond to Wolfe’s brief because no arguable issues were raised. The

State did ask for time to respond if we decided that appealable issues existed and

appointed new counsel for Wolfe.

       {¶ 4} After reviewing the entire record, including the presentence investigation

(“PSI”) report, and conducting our independent Anders review, we find no issues with

arguable merit for Wolfe to advance on appeal. Accordingly, the judgment of the trial

court will be affirmed.



                             II. Facts and Course of Proceedings

       {¶ 5} On May 29, 2020, an indictment was filed in the trial court charging Wolfe

with having committed domestic violence against Teri S. Because Wolfe had two prior

domestic violence convictions (in July 2002 and in August 2019), the offense was

elevated to a third-degree felony. Wolfe pled not guilty to the charge, counsel was
                                                                                             -3-


appointed, and bond was set at $15,000 (surety bond). On June 19, 2020, Wolfe’s initial

counsel was granted leave to withdraw due to the Covid pandemic and counsel’s inability

to visit with Wolfe in jail. New counsel was appointed for Wolfe the same day.

       {¶ 6} On June 25, 2020, Wolfe filed a motion for a bond reduction, but the court

continued the bond as previously set. Subsequently, on July 9, 2020, Wolfe appeared

in court and pled guilty, based on the State’s agreement to reduce the charge to the lesser

included offense of domestic violence with one prior conviction, a felony of the fourth

degree. During the plea hearing, the court advised Wolfe of his constitutional rights and

also fully complied with the requirements of Crim.R.11(C)(2) for accepting pleas. After

accepting Wolfe’s guilty plea, the court found him guilty of the offense as charged and

ordered that a PSI be conducted. Transcript of Proceedings (“Tr.”), Plea Hearing, p. 3-

10. An entry of waiver and plea was then filed on July 13, 2020.

       {¶ 7} The sentencing hearing was held on July 23, 2020, at which time the court

sentenced Wolfe to up to five years of community control sanctions (CCS), conditioned

on Wolfe’s compliance with several conditions. Tr., Sentencing Hearing, at p. 14-15.

These conditions included that Wolfe would: (1) comply with the court’s general conditions

for probationers; (2) undergo intensive supervision with a domestic violence specialist for

a period not to exceed five years; (3) complete treatment at Nova House and comply with

the agency’s further recommendations; (4) obtain and maintain verifiable employment or

provide verification of inability to work; (5) have no contact with the victim, Teri S., or come

within 1,000 feet of her person, residence, or place of employment; (6) attend and

complete the Stop the Violence program; (7) attend and complete domestic violence

counseling as the probation officer deemed appropriate; (8) abstain from the use of illegal
                                                                                          -4-


drugs of abuse and alcohol; and (9) not be in places where he had reasonable cause to

know that illegal drugs, stolen property, or firearms were present.

Id. The court also

warned Wolfe that if he violated any sanction or left the state without permission, the court

could impose a longer time under the same sanction, impose more restrictive sanctions,

impose 12 months in jail or the MonDay Program, or impose a prison term of 18 months.

Id. at p. 16.

       {¶ 8} The judgment entry, which included the community control sanctions and

potential prison sentence, was filed on July 24, 2020. Wolfe did not appeal from the

judgment.

       {¶ 9} On July 27, 2020 (or only four days after the sentencing hearing), the court

filed an order suspending the probationary period for community control and ordering a

capias for Wolfe.    In the order, the court noted that Wolfe’s probation officer had

represented that Wolfe’s whereabouts had been unknown since July 23, 2020. The

police then arrested Wolfe on July 30, 2020, and filed a return of warrant the following

day.

       {¶ 10} On August 9, 2020, a Notice of CCS Revocation Hearing and Order was

filed, and Wolfe was ordered to appear on August 13, 2020. The notice alleged that

upon being released from jail, Wolfe went to Teri S.’s residence and damaged her

property, a violation of Sanction #6. The notice further alleged that Wolfe had failed to

report to the probation department as ordered and was declared an absconder on July

27, 2020. The trial court then held hearings on August 13, 2020 and September 3, 2020.

During the first hearing, Wolfe acknowledged receipt of the revocation notice, waived the

formal reading of the notice, waived the probable cause hearing, and entered a general
                                                                                           -5-


denial. Tr. at p. 17.

       {¶ 11} On September 3, 2020, Wolfe acknowledged receipt of the revocation

notice, waived the formal reading of the notice, waived the probable cause hearing, and

admitted that he had violated Rules #5 and #6, with the understanding that he would be

receiving a sanction of attending the MonDay Program. Tr. at p. 29. At that time, Wolfe

had been accepted into the program.

Id. After finding that

Wolfe had knowingly,

intelligently, and voluntarily admitted to the violations, the court held that a violation had

occurred and added the MonDay Correctional Institution as a sanction.

Id. at p. 21.

The

court then filed an order on September 8, 2020, modifying the community control

sanctions to require that Wolfe attend the MonDay program.

       {¶ 12} Shortly thereafter, on September 21, 2020, the court filed another Notice of

CCS Revocation Hearing and Order.          This time, the notice alleged that Wolfe had

violated Sanction #10 by failing to complete the MonDay program. Specifically, Wolfe

self-terminated from the program on September 16, 2020.

Id. at p. 1.

The court again

held a hearing, during which Wolfe acknowledged receipt of the revocation notice, waived

the probable cause hearing, and entered an admission that he had violated Sanction #10.

Tr. at p. 22. During the hearing, Wolfe expressed agreement with serving a 12-month

prison sentence, with jail credit of 121 days.

Id. Wolfe further agreed

that his admission

to the violation was being made knowingly, voluntarily, and intelligently.

Id.

{¶ 13} The

trial court then found, by a preponderance of the evidence, that Wolfe

had violated the terms and conditions of community control.

Id. at p. 23.

The court

therefore revoked community control, sentenced Wolfe to 12 months in prison, and gave

Wolfe 121 days of jail credit for time served.

Id. at p. 23-24.

The court then filed a
                                                                                       -6-


termination entry on September 27, 2020, revoking Wolfe’s community control and

sentencing him to 12 months in prison, with jail credit of 121 days. Wolfe timely appealed

from the judgment on September 30, 2020.



                                II. Discussion and Conclusion

      {¶ 14} In an Anders review, we are required to decide “after a full examination of

all the proceedings,” whether an appeal is “wholly frivolous.” 

Anders, 386 U.S. at 744

,

87 S. Ct. 1396

, 

18 L. Ed. 2d 493

. See also Penson v. Ohio, 

488 U.S. 75

, 84-85, 

109 S. Ct.

346

, 

102 L. Ed. 2d 300

(1988). Issues are not frivolous simply because the State “can be

expected to present a strong argument in reply.” State v. Pullen, 2d Dist. Montgomery

No. 19232, 2002-Ohio-6788, ¶ 4. Instead, an issue will lack arguable merit “if on the

facts and law involved, no responsible contention can be made that it offers a basis for

reversal.”

Id.

{¶ 15} After

conducting an independent review of the record pursuant to Anders,

we agree with Wolfe’s appellate counsel that, based on the facts and relevant law, there

are no issues with arguable merit to present on appeal. Specifically, Wolfe stipulated to

both violations of community control and was sentenced to a prison term that he had been

warned of after he refused to comply with community control sanctions. Wolfe’s defiance

of the sanctions was obvious, and it occurred in both cases almost immediately after the

sanctions were imposed.

      {¶ 16} As indicated, Wolfe’s counsel raised a potential assignment of error

concerning whether the sentence was contrary to law, but found no merit in this claim.

Again, we agree.
                                                                                             -7-


          {¶ 17} “A sentence is contrary to law when it does not fall within the statutory range

for the offense or if the trial court fails to consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.”

State v. Brown, 2017-Ohio-8416, 

99 N.E.3d 1135

, ¶ 74 (2d Dist.), citing State v. Pawlak,

8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. Accord State v. Derrick, 2d Dist.

Montgomery No. 28878, 2021-Ohio-1330, ¶ 22.

          {¶ 18} Here, the 12-month sentence was within the statutory range of six to 18

months for a fourth-degree felony and was below the maximum penalty.                       R.C.

2929.14(A)(4). The trial court also complied with the requirement of considering the

purposes and principles of felony sentencing in R.C. 2929.11 and the sentencing factors

in R.C. 2929.12. See Sentencing Tr. at p. 23. While the court did not specifically make

findings or give reasons for imposing more than a minimum sentence, there was no

requirement to do so. E.g., State v. King, 2013-Ohio-2021, 

992 N.E.2d 491

, ¶ 45 (2d

Dist.).        .

          {¶ 19} Furthermore, the PSI report revealed that Wolfe had a very long history of

criminal offenses dating back to the early 1980s. These crimes involved 16 alcohol and

drug-related misdemeanor convictions as well as a 2017 felony conviction for aggravated

possession of drugs. Wolfe’s criminal history also included convictions for domestic

violence, menacing, and trespassing, among others. Many of the convictions resulted in

suspension of most of Wolfe’s jail time, which obviously did not work to prevent future

crime. In fact, in November 2019, Wolfe was convicted of menacing (reduced from

aggravated menacing) in a case involving the victim here, Teri S. Any prior sanctions

clearly did not deter Wolfe from committing domestic violence against Teri S. several
                                                                                       -8-


months later in 2020, nor did the sanctions imposed in this case deter Wolfe from

returning to Teri S.’s residence the same day that he was released from jail. There is no

doubt that community control sanctions did not prevent Wolfe from committing crimes.

      {¶ 20} Based on the preceding discussion, the judgment of the trial court is

affirmed.

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



HALL, J. and EPLEY, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Kirsten Knight
Eric Wolfe
Hon. Gerald Parker

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