[Cite as State v. Williams,
2022-Ohio-2897.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-30
:
v. : Trial Court Case No. 2019-CR-446
:
BRANDEN WILLIAMS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 19th day of August, 2022.
...........
MEGAN HAMMOND, Atty. Reg. No. 0097714, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, Appellate Division, 61 Greene Street, Second Floor, Xenia,
Ohio 45385
Attorney for Plaintiff-Appellee
BRYAN SCOTT HICKS, Atty. Reg. No. 0065022, P.O. Box 359, Lebanon, Ohio 45036
Attorney for Defendant-Appellant
.............
LEWIS, J.
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{¶ 1} Defendant-Appellant Branden Williams appeals from his conviction in the
Greene County Common Pleas Court after entering a negotiated plea agreement
whereby he pled guilty to two counts of grand theft of a motor vehicle, one count of
breaking and entering, and two counts of theft from a protected class. Williams was
sentenced to an aggregate term of 48 months in prison, and thereafter he filed an appeal.
On April 18, 2022, Williams’ appointed 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 arguably meritorious claims to present on appeal.
{¶ 2} We notified Williams of the Anders filing and gave him an opportunity to
submit his own brief within 60 days. We also ordered that the record be supplemented
with the presentence investigation report (“PSI”), the victim impact statement, and any
other documents reviewed by the court for sentencing. Williams has not filed a brief.
{¶ 3} Williams’ appellate counsel raised one potential assignment of error, i.e., that
the trial court erred in sentencing Williams to consecutive sentences because it failed to
consider all the necessary consecutive sentencing factors. However, counsel found no
arguable merit in the claim. Based on our independent review of the record, we agree
with counsel’s assessment. Accordingly, the trial court’s judgment is affirmed.
I. Background
{¶ 4} On July 19, 2019, the Greene County Grand Jury indicted Williams on two
counts of grand theft of a motor vehicle, in violation of R.C. 2913.02(A)(1), a felony of the
fourth degree; two counts of receiving stolen property (motor vehicle), in violation of R.C.
2913.51(A), a felony of the fourth degree; four counts of breaking and entering, in violation
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of R.C. 2911.13(A), a felony of the fifth degree; receiving stolen property, in violation of
R.C. 2913.51(A), a felony of the fifth degree; theft, in violation of R.C. 2913.02(A)(1), a
felony of the fifth degree; two counts of theft from a person in a protected class, in violation
of R.C. 2913.02(A)(1), a felony of the fifth degree; and one count of receiving stolen
property, in violation of R.C. 2913.51(A), a misdemeanor of the first degree.
{¶ 5} Williams, having posted bond, was ordered to comply with several pretrial
conditions that were incorporated into a judgment entry and signed by Williams. The
conditions included that Williams not consume any form of illegal drugs or mood altering
substances, that he report to the Adult Probation Department as often as requested or
required, that he comply with all requests from the Adult Probation Department including
reporting for a PSI interview, and that he maintain a phone number at which he could be
contacted, with notification to his attorney and the court if any changes occurred.
Williams was specifically notified that he would be subject to random drug and/or alcohol
screening or testing.
{¶ 6} On September 25, 2019, the Greene County Probation Department filed a
motion for a violation of bond claiming that Williams had tested positive for fentanyl,
methamphetamine, and amphetamines on September 23, 2019. No change to bond
was made.
{¶ 7} On December 18, 2019, Williams entered a negotiated guilty plea wherein
he pled guilty to two counts of grand theft of a motor vehicle, felonies of the fourth degree
(Counts 1 and 9); one count of breaking and entering, a felony of the fifth degree (Count
6); and two counts of theft from a person in a protected class, felonies of the fifth degree
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(Counts 8 and 12). The remaining counts were dismissed, and the State agreed to
recommend community control sanctions with a chemical dependency and mental health
evaluation along with any other recommended treatment, including the theft clinic. The
parties agreed that the offenses were not allied offenses, as there were separate victims
involved, and agreed to restitution in the amount of $5,875. Williams further agreed to
the forfeiture of several seized items and any items recovered that had not yet been
identified by the victims.
{¶ 8} The trial court informed Williams that the maximum term of imprisonment he
faced was a total of 72 months. Although the parties agreed to a sentence
recommendation, the trial court made clear that the agreement was between the parties
only and the trial court could impose any sentence it deemed appropriate within the
applicable sentencing ranges. Williams indicated that he understood and proceeded
with entering his guilty pleas. The trial court fully advised Williams of his constitutional
and non-constitutional rights, accepted the guilty pleas, and ordered a PSI. The trial
court set sentencing for February 27, 2020.
{¶ 9} On February 11, 2020, the Greene County Probation Department filed a
second motion for violation of bond and also requested a capias. It was alleged that
Williams had failed to report to the Adult Probation Department on February 6, 2020, for
a PSI interview. That same day, the trial court revoked Williams’ prior bond, imposed a
new bond, and issued a capias for Williams’ arrest.
{¶ 10} On April 28, 2020, Williams was arrested. He posted bond and a new
sentencing date was scheduled for June 11, 2020, though later rescheduled for June 24,
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2020. Before sentencing could occur, on June 18, 2020, the Greene County Probation
Department filed a third motion for violation of bond and again requested a capias. The
motion alleged that on June 9 and June 12, 2020, the Adult Probation Department
attempted to contact Williams via telephone, but the phone number was not accepting
phone calls. That same day, the trial court revoked Williams’ most recent bond, imposed
a new bond, and issued a capias for Williams’ arrest.
{¶ 11} On November 13, 2020, Williams was arrested and, soon thereafter, he
posted bond again. A sentencing hearing was scheduled for December 7, 2020, at
which time all parties appeared for sentencing. However, after Williams spoke with his
attorney and was informed the trial court was “leaning toward” a two-year prison
sentence, Williams left the courthouse prior to the hearing. As a result, the sentencing
did not go forward, Williams’ bond was revoked, and another capias was issued.
{¶ 12} Williams was eventually arrested several months later and transported to
the Greene County Common Pleas Court for sentencing on August 5, 2021. At the
hearing, the trial court stated that it had considered the record, the oral statements made
by the parties, and the PSI. The court stated it had balanced the seriousness and
recidivism factors and considered the overriding purpose of felony sentencing, including
protecting the public from future crime by the defendant and others, punishment of the
defendant, promoting effective rehabilitation of the defendant, and using the minimum
sanctions necessary to accomplish those purposes without imposing an unnecessary
burden on state or local government.
{¶ 13} Because Williams entered guilty pleas to non-violent fourth and fifth degree
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felonies, the trial court considered R.C. 2929.13(B)(1)(a) and (B)(1)(b). The court found
that Williams had previously been convicted of or pleaded guilty to a felony offense or to
an offense of violence that was a misdemeanor that Williams committed within two years
prior to the offense for which sentence was imposed. Additionally, the trial court found
that Williams had violated a term of the conditions of bond as set by the court and at the
time of the offense was serving, or had previously served, a prison term.
{¶ 14} The trial court imposed the maximum sentence for each offense and
ordered Counts 1, 9, and 12 be served consecutively to each other, but concurrently to
the remaining two counts, for an aggregate prison sentence of 48 months. In imposing
consecutive sentences, the trial court found “that consecutive service is necessary to
protect the public from future crime or to punish the Defendant; and that consecutive
sentences are not disproportionate to the seriousness of Defendant’s conduct and to the
danger the Defendant poses to the public.” Sentencing Tr., p. 9. The court further
found that “[t]he Defendant’s history of criminal conduct demonstrates that consecutive
service and sentences are necessary to protect the public from future crime by the
Defendant; The Defendant has prior felony convictions; prior failure to comply with the
Court and probation; failure to comply with current court orders with numerous violations
of bond; has continued criminal activity; and has failed to complete drug and alcohol
treatment.” Id.
{¶ 15} Williams was informed that for each of the five counts, upon his release from
prison, he may serve a period of post-release control for up to three years. He was
notified of the consequences of violating post-release control as well as his right to appeal.
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In accordance with the plea agreement, Williams was ordered to pay restitution, along
with court costs, and items were forfeited. Williams filed a timely notice of appeal.
II. Anders Standard
{¶ 16} Under Anders, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493, we must
conduct an independent review to determine whether Williams’ appeal is “wholly
frivolous.”
Id. at 744. “Anders equates a frivolous appeal with one that 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. “If we find that any issue – whether presented by
appellate counsel, presented by the defendant, or found through an independent analysis
– is not wholly frivolous, we must reject the Anders brief and appoint new appellate
counsel to represent the defendant.” (Citations omitted.) State v. Somerset, 2d Dist.
Montgomery No. 29249,
2022-Ohio-2170, ¶ 5.
III. Analysis
{¶ 17} In the present case, the Anders brief identifies the following issue that
Williams’ appellate counsel raised: consecutive sentences were not supported by the
record. Appellate counsel sees no non-frivolous arguments with regard to this issue.
We agree with counsel’s assessment.
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{¶ 18} “When reviewing felony sentences, a court of appeals must apply the
standard of review set forth in R.C. 2953.08(G).” State v. Farra, 2d Dist. Montgomery
No. 28950, 2022-Ohio-1421, ¶ 73. In accordance with that statute, an appellate court
may increase, reduce, or modify a sentence, or it may vacate the sentence and remand
for resentencing, only if it clearly and convincingly finds either: (1) the record does not
support the sentencing court's findings under certain enumerated statutes (including R.C.
2929.14(C)(4), which concerns the imposition of consecutive sentences); or (2) the
sentence is otherwise contrary to law. State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-
1002,
59 N.E.3d 1231, ¶ 9, citing R.C. 2953.08(G)(2). “Clear and convincing evidence
is that measure or degree of proof … which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.” Id. at ¶ 22, citing
Cross v. Ledford,
161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 19} Although there is a presumption for concurrent sentences under R.C.
2929.41(A), a trial court may impose consecutive sentences under R.C. 2929.14(C) if the
trial court finds that: (1) consecutive service is necessary to protect the public from future
crime or to punish the offender; (2) consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public;
and (3) one or more of the following three findings are satisfied:
(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,
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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
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.
R.C. 2929.14(C)(4)(a)-(c). “[A] trial court is required to make the findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its
sentencing entry, but it has no obligation to state reasons to support its findings.” State
v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, syllabus. “[W]here a
trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an appellate
court may not reverse the trial court's imposition of consecutive sentences unless it first
clearly and convincingly finds that the record does not support the trial court's findings.”
State v. Withrow,
2016-Ohio-2884,
64 N.E.3d 553, ¶ 38 (2d Dist.).
{¶ 20} In this case, the trial court engaged in the appropriate analysis and made
the requisite findings under R.C. 2929.14(C)(4). In imposing consecutive sentences, the
trial court found “that consecutive service is necessary to protect the public from future
crime or to punish the Defendant; and that consecutive sentences are not
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disproportionate to the seriousness of Defendant’s conduct and to the danger the
Defendant poses to the public.” Sentencing Tr., p. 9. In accordance with R.C.
2929.14(C)(4)(c), the trial court further found that “[t]he Defendant’s history of criminal
conduct demonstrates that consecutive service and sentences are necessary to protect
the public from future crime by the Defendant; The Defendant has prior felony convictions;
prior failure to comply with the Court and probation; failure to comply with current court
orders with numerous violations of bond; has continued criminal activity; and has failed
to complete drug and alcohol treatment.” Id. These findings were also included in the
judgment entry. Because the requisite consecutive sentence findings were stated on the
record at the time of sentencing and included in the judgment entry, we now consider if
we clearly and convincingly find that the record does not support the trial court’s findings.
{¶ 21} Williams’ history of criminal conduct supported the imposition of
consecutive sentences. His PSI report reflected that he had a history of criminal
convictions in both Ohio and Kentucky, the majority of which related to various theft
offenses or drugs. Williams had previously been convicted of robbery and sentenced to
a prison term of four years at the Ohio Department of Rehabilitation and Correction.
{¶ 22} After he was indicted on the pending charges, Williams was charged and
convicted in Vandalia Municipal Court with two separate cases; one for theft and the other
for failure to comply with the order or signal of a police officer, both first degree
misdemeanors. He was also charged in the Dayton Municipal Court with theft and
receiving stolen property, both first degree misdemeanors. At the time of Williams’
December 2020 sentencing hearing, there had been an active warrant issued from the
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Dayton Municipal Court for his failure to appear on that case. The PSI reflected that
Williams had been charged in Franklin Municipal Court with failure to comply with an order
or signal of a police officer, a felony of the third degree, which was awaiting indictment in
the Warren County Common Pleas Court. Further, although not elaborated upon, both
Williams and his defense attorney implied that between the time he fled court in December
2020 and the time he was sentenced in August 2021, Williams had committed additional
criminal offenses that were not reflected in the PSI because it had not been updated since
December 2020.
{¶ 23} In addition to Williams’ criminal activities during the pendency of the case,
the Greene County Probation Department filed three notices of Williams’ failure to comply
with the terms of his pretrial release conditions. These included Williams’ failing to
appear for his PSI interview and failing to maintain contact with the Probation Department.
As a result of Williams’ non-compliance, the sentencing hearing was rescheduled three
times. Considering Williams’ criminal history and his inability to comply with court orders,
we cannot find by clear and convincing evidence that the record does not support the trial
court’s consecutive sentence findings.
{¶ 24} To the extent appellate counsel mentioned that Williams’ sentence was
increased from two years to four years as “apparent punishment for not staying for the
first sentencing,” we do not find this issue arguably meritorious. In this case, there was
no pronouncement of sentence by the court, either orally or in writing, prior to imposing
Williams’ sentence on August 5, 2021. At the August 5, 2021 sentencing hearing,
defense counsel explained that at the time of the December 7, 2020 scheduled
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sentencing hearing, Williams appeared, was informed the judge was “leaning towards” a
sentence of two years in prison, and then Williams left the courthouse without being
sentenced. Williams explained that he left the courthouse because he thought he was
going to get probation, but then was told he would be going to prison. He claimed his
sister had died two days before the sentencing date and he wanted to attend her funeral.
However, he acknowledged that her death caused him “to do more drugs and more bad
things.” Sentencing Tr., p. 4. Notably, the discussion occurred at the August 5, 2021
hearing, because a visiting judge was present on December 7, 2020, not the judge who
imposed Williams’ 48-month sentence. Although the record does not reflect that the trial
court considered Williams’ fleeing from the prior sentencing hearing as a factor in
determining his sentence, even if it did, a defendant’s failure to appear at sentencing is
an appropriate recidivism factor for the court to consider in determining a sentence. See
State v. Carnicom, 2d Dist. Miami No. 2003-CA-4, 2003-Ohio-4711, ¶ 7 (failure to appear
for an earlier sentencing hearing may be a relevant factor in determining a defendant’s
likelihood of recidivism).
{¶ 25} In this case, the record reflects that the trial court considered the purposes
and principles of sentencing under R.C. 2929.11 and balanced the seriousness and
recidivism factors found in R.C. 2929.12. It made all the statutory consecutive
sentencing findings pursuant to R.C. 2929.14(C)(4), including a finding under R.C.
2929.14(C)(4)(c). Williams’ sentences were within the applicable statutory ranges and
are not contrary to law. We are unable to clearly and convincingly find that the record
fails to support the trial court’s consecutive sentence findings. Further, the trial court
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made all the necessary findings at both the sentencing hearing and in the sentencing
entry. As such, we find no errors in the issues raised by appellate counsel.
{¶ 26} In addition to the issues raised by appellate counsel discussed above, and
consistent with our duties under Anders, we have reviewed the entire record, including
the plea and sentencing hearing transcripts, the docketed filings, and the PSI. We are
unable to find any meritorious appellate issues and find this appeal to be wholly frivolous.
IV. Conclusion
{¶ 27} Having found no non-frivolous issues for appeal, we affirm the judgment of
the Greene County Common Pleas Court.
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DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Megan Hammond
Bryan Scott Hicks
Branden Williams
Hon. Michael A. Buckwalter
