[Cite as State v. Dunkle,
2019-Ohio-2698.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vsCase Nos. CT2019-0009 & CT2019-0010
KELLY J. DUNKLE
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case Nos.
CR2018-0515 & CR2018-0728
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 28, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JEREMY M. MCLENDON
Muskingum County Prosecutor Micheli, Baldwin, Mortimer
27 N. Fifth Street, 2nd Floor McLendon & Whitacre, LLP
Zanesville, Ohio 43701 3808 James Court, Suite 2
Zansville, Ohio 43701
Muskingum County, Case Nos. CT2019-0009 & CT2019-0010 2
Hoffman, J.
{¶1} Appellant Kelly Jo Kunkle appeals the judgments entered by the Muskingum
County Common Pleas Court convicting her of trafficking in drugs (R.C. 2925.03(A)(2)),
possession of drug paraphernalia (R.C. 2929.14(C)(1)), and two counts of obstructing
justice (R.C. 2921.32(A)(2)) following her pleas of guilty, and sentencing her to an
aggregate term of incarceration of five years.
STATEMENT OF THE CASE1
{¶2} In case number CR2018-0515, Appellant entered pleas of guilty to
trafficking in drugs and possession of drug paraphernalia on December 10, 2018. Also
on December 10, 2018, Appellant entered pleas of guilty to two counts of obstructing
justice in case number CR2018-0728.
{¶3} Both cases proceeded to sentencing on January 14, 2019. In case number
CR2018-0515, the court sentenced Appellant to twenty-four months incarceration for
trafficking in drugs and a term of local incarceration of 30 days for possession of drug
paraphernalia, to be served concurrently with each other. Appellant filed a notice of
appeal (Case No. CT2019-0009).
{¶4} In case number CR2018-0728, Appellant was sentenced to thirty months
incarceration on each obstructing justice conviction, to be served consecutively with each
other but concurrently with the sentences imposed in CR2018-0515. She also filed a
notice of appeal from this judgment (Case No. CT2019-0010).
{¶5} Appellate counsel for Appellant has filed a Motion to Withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), rehearing den.,
388 U.S. 924,
1 A rendition of the facts is unnecessary to our disposition of this appeal.
Muskingum County, Case Nos. CT2019-0009 & CT2019-0010 3
indicating the within appeal is wholly frivolous. Counsel for Appellant has raised one
potential assignment of error in each case, asking this Court to determine in each case
whether the trial court erred in the sentence imposed upon Appellant. Appellant was
given an opportunity to file a brief raising additional assignments of error, but none was
filed.
{¶6} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the case is wholly frivolous,
then he or she should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany the request with a brief identifying anything in the record which
could arguably support the appeal. Id. Counsel also must: (1) furnish the client with a
copy of the brief and request to withdraw; and, (2) allow the client sufficient time to raise
any matters the client chooses. Id. Once the defendant's counsel satisfies these
requirements, the appellate court must fully examine the proceedings below to determine
if any arguably meritorious issues exist. If the appellate court also determines the appeal
is wholly frivolous, it may grant counsel's request to withdraw and dismiss the appeal
without violating constitutional requirements, or may proceed to a decision on the merits
if state law so requires. Id.
{¶7} Counsel in this matter has followed the procedure as set forth in Anders.
We now will address the merits of Appellant's potential Assignments of Error.
Case No. CT2019-0009
THE TRIAL COURT ABUSED ITS DISCRETION AT SENTENCING
BY IMPOSING A TWENTY-FOUR (24) MONTH PRISON SENTENCE AND
A SENTENCE OF THIRTY (30) DAYS LOCAL INCARCERATION, BOTH
Muskingum County, Case Nos. CT2019-0009 & CT2019-0010 4
TO RUN CONCURRENT FOR AN AGGREGATE SENTENCE OF
TWENTY-FOUR (24) MONTHS.
{¶8} Our standard of review of sentencing is set forth in R.C. 2953.08(G)(2):
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶9} R.C. 2953.08(G)(2)(a) does not apply to Appellant’s sentences for
trafficking in drugs and possession of drug paraphernalia. The sentences fit in the
applicable statutory sentencing range, and we find the sentence is not contrary to law.
Muskingum County, Case Nos. CT2019-0009 & CT2019-0010 5
{¶10} Appellant’s proposed assignment of error is overruled.
Case No. CT2019-0010
THE TRIAL COURT ABUSED ITS DISCRETION AT SENTENCING
BY IMPOSING THIRTY (30) MONTH CONSECUTIVE SENTENCES.
{¶11} Pursuant to R.C. 2929.14(C)(4), the trial court must make specific findings
to impose consecutive sentences:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
Muskingum County, Case Nos. CT2019-0009 & CT2019-0010 6
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶12} In the instant case, the trial court made the requisite findings at the
sentencing hearing and in the sentencing entry. The trial court stated at the sentencing
hearing:
In regards to the 0728 case, I read the presentence investigation.
And I read that – your statement that you knew what had supposedly
happened but you asked Mr. Adams if he did it and he said no and you
believed him so you continued to help him.
I think everybody that you were running around with at that point in
time knew what had happened and knew everybody else’s involvement in
what was going on. I think you also are 32 years of age. You’re not a 20
year old, naïve person out on the street. You’ve been around this for a long
time. You knew exactly what you were doing, and you did it. I think you’re
still having trouble trying to admit that to yourself and to anybody else.
In regards to each of the felonies of the third degree in 0728, the
Court is imposing a 30-month sentence on each to be served consecutively
to each other but concurrent with Case No. 0515.
Muskingum County, Case Nos. CT2019-0009 & CT2019-0010 7
The Court finds that the consecutive sentences are necessary to
protect the public and to punish the offender and finds that the consecutive
sentences are not disproportionate to the seriousness of the conduct. At
least two offenses in that case are courses of conduct that the harm caused
by them are so great and unusual that no single prison term for these
offenses adequately reflects the seriousness of your conduct.
This was a death case. It was a murder. You can’t have any more
serious offense. And not only was your conduct then bad, but your conduct
by saying that you believed this man did not do that, that’s why these
sentences are consecutive. That’s why.
{¶13} Tr. 7-8.
{¶14} We find the court’s findings pursuant to R.C. 2929.14(C)(4) are supported
by the record. We further find the sentence is not contrary to law.
{¶15} Appellant’s proposed assignment of error is overruled.
OTHER MERITORIOUS ISSUES
{¶16} We have reviewed the record and find no other arguably meritorious issues
exist.
Muskingum County, Case Nos. CT2019-0009 & CT2019-0010 8
{¶17} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur
