[Cite as State v. Morgan,
2022-Ohio-3302.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vsCase No. CT2021-0072
JEREMY A. MORGAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No CR2021-0352
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 20, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD WELCH JAMES S. SWEENEY
PROSECUTING ATTORNEY JAMES SWEENEY LAW, LLC
27 North Fifth Street, P.O. Box 189 285 South Liberty Street
Zanesville, Ohio 43702 Powell, Ohio 43065
Muskingum County, Case No. CT2021-0072 2
Wise, J.
{¶1} Defendant-Appellant Jeremy A. Morgan appeals his conviction and
sentence on one count of attempted domestic violence following a plea of guilty in the
Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶2} On June 30, 2021, Appellant Jeremy A. Morgan was indicted on one charge
at the Muskingum County Court of Common Pleas; Domestic Violence, a felony of the
third degree, in violation of R.C. §2919.25(A). The indictment set forth that Appellant had
been “previously convicted of, or pleaded guilty to two (2) or more offenses of domestic
violence, two-wit:” and then listed five prior convictions which occurred between 2001 and
2020.
{¶3} The instant charge arose out of an incident which occurred on June 20,
2021, wherein Appellant was alleged to have hit his live-in girlfriend. (Plea Hearing at 13).
{¶4} On October 20, 2021, a plea hearing was held. At said hearing, Appellant
entered a plea of guilty to a reduced charge of Attempted Domestic Violence, a felony of
the fourth degree, in violation of R.C. §2923.02(A) and R.C. §2919.25(A). (Plea Hearing
at 8, 10). The parties made a joint recommendation of six (6) months in prison on the
charge of Attempted Domestic Violence. (Plea Hearing at 3-4).
{¶5} On November 29, 2021, a sentencing hearing was held wherein the trial
court sentenced Appellant to eighteen (18) months in prison on the charge of Attempted
Domestic Violence, with 163 days of jail-time credit. The trial court also terminated
Appellant’s post-release control, which had a maximum expiration date of October 24,
Muskingum County, Case No. CT2021-0072 3
2023; and ordered it to run consecutive to the sentence on the Attempted Domestic
Violence charge. (Sentencing Hearing at 12).
{¶6} Appellant now appeals.
Assignments of Error
{¶7} Counsel for Appellant Morgan has filed a Motion to Withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493(1967)
asserting no potential assignments of error.
Law and Analysis
{¶8} 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 should so advise the court and request permission to withdraw. 386 U.S. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal.
Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to
raise any matters that 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
that 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.
{¶9} By Judgment Entry filed June 13, 2022, this Court noted that counsel had
filed an Anders brief and had indicated to the Court that he had served Appellant with the
Muskingum County, Case No. CT2021-0072 4
brief. Accordingly, this Court notified Appellant via Certified U.S. Mail that he “may file a
pro se brief in support of the appeal within 60 days from the date of the filing of this entry.”
{¶10} Appellant has not filed a pro se brief
{¶11} We find Appellant’s counsel in this matter has adequately followed the
procedures required by Anders.
I.
{¶12} As counsel did not submit any potential assignment of error, Appellant did
not submit a pro se brief, and the state did not file a response brief, this Court will
undertake, pursuant to Anders, to fully examine the proceedings to decide if this appeal
is indeed wholly frivolous.
{¶13} Appellant herein pled guilty to a reduced count of one count of Attempt –
Domestic Violence, and was convicted under R.C. §2919.25(A), which provides:
(A) No person shall knowingly cause or attempt to cause physical
harm to a family or household member.
…
(3) Except as otherwise provided in division (D)(4) of this section, if
the offender previously has pleaded guilty to or been convicted of domestic
violence, a violation of an existing or former municipal ordinance or law of
this or any other state or the United States that is substantially similar to
domestic violence, a violation of section 2903.14, 2909.06, 2909.07,
2911.12, 2911.211, or 2919.22 of the Revised Code if the victim of the
violation was a family or household member at the time of the violation, a
violation of an existing or former municipal ordinance or law of this or any
Muskingum County, Case No. CT2021-0072 5
other state or the United States that is substantially similar to any of those
sections if the victim of the violation was a family or household member at
the time of the commission of the violation, or any offense of violence if the
victim of the offense was a family or household member at the time of the
commission of the offense, a violation of division (A) or (B) of this section is
a felony of the fourth degree, and, if the offender knew that the victim of the
violation was pregnant at the time of the violation, the court shall impose a
mandatory prison term on the offender pursuant to division (D)(6) of this
section, and a violation of division (C) of this section is a misdemeanor of
the second degree.
(4) If the offender previously has pleaded guilty to or been convicted
of two or more offenses of domestic violence or two or more violations or
offenses of the type described in division (D)(3) of this section involving a
person who was a family or household member at the time of the violations
or offenses, a violation of division (A) or (B) of this section is a felony of the
third degree, and, if the offender knew that the victim of the violation was
pregnant at the time of the violation, the court shall impose a mandatory
prison term on the offender pursuant to division (D)(6) of this section, and a
violation of division (C) of this section is a misdemeanor of the first degree.
…
(6) If division (D)(3), (4), or (5) of this section requires the court that
sentences an offender for a violation of division (A) or (B) of this section to
Muskingum County, Case No. CT2021-0072 6
impose a mandatory prison term on the offender pursuant to this division,
the court shall impose the mandatory prison term as follows:
(a) If the violation of division (A) or (B) of this section is a felony of
the fourth or fifth degree, except as otherwise provided in division (D)(6)(b)
or (c) of this section, the court shall impose a mandatory prison term on the
offender of at least six months.
{¶14} Here, Appellant pled guilty to a fourth-degree felony and the trial court
imposed a sentence of eighteen (18) months, which is within with an authorized
sentencing range of six to 18 months in prison. See R.C. §2929.14(A)(4).
{¶15} R.C. §2953.08 governs appeals claiming a violation of felony sentencing
guidelines. Subsection (G)(2) describes this Court's standard of review:
(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:
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 division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
Muskingum County, Case No. CT2021-0072 7
That the sentence is otherwise contrary to law.
{¶16} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-
03-026, 2019-Ohio-4209, ¶ 36.
{¶17} We have reviewed the record and found that the trial court fulfilled those
requirements as it imposed the sentence, so we find no error.
Conclusion
{¶18} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal.
Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to
withdraw, and affirm the judgment of the Muskingum County Court of Common Pleas.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/kw 0915
