[Cite as State v. Barnett,
2023-Ohio-3132.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2023-A-0016
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
SAMUEL KING BARNETT,
Trial Court No. 2018 CR 00705
Defendant-Appellant.
OPINION
Decided: August 29, 2023
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, 25 West Jefferson Street, Jefferson,
OH 44047 (For Plaintiff-Appellee).
Margaret Brunarski, Ashtabula County Public Defender, and Michael J. Ledenko,
Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For
Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Samuel Barnett, appeals his sentence from the Ashtabula
County Court of Common Pleas after he pled guilty to violating community control
sanctions. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), and a motion to withdraw. In his brief, counsel
asserts there are no meritorious issues for appeal and thus, the matter is wholly frivolous.
After considering the record, pursuant to
Anders, supra, we agree with counsel, affirm the
trial court, and grant counsel's motion to withdraw.
{¶2} On February 7, 2020, Appellant pled guilty to one count of Trafficking in
Marihuana, a fifth-degree felony in violation of R.C. 2923.02(A). The court accepted his
guilty plea. On April 3, 2020, the court sentenced Appellant to two years of community
control. On May 21, 2021, Appellant had not appeared to the probation department in
compliance with his community control conditions, and the court issued a capias for
Appellant’s arrest. Appellant was arrested in February 2023.
{¶3} On March 10, 2023, the trial court held a “Probation Violation Hearing.” At
the hearing, Appellant waived his rights to the preliminary and final hearings on the
violation. He subsequently pled guilty. The court advised him of the rights he would have
had at the hearings if they were held. Appellant stated that he understood his rights, and
the court found that he voluntarily, intelligently, and knowingly waived his rights and pled
guilty to violating community control sanctions. The court allowed Appellant and trial
counsel to speak in mitigation of his sentence. The court found that Appellant had a
criminal history (including criminal charges after the 2020 charge for which the court
placed Appellant on community control) and failed to appear to the probation department
for “two years.” The court sentenced Appellant to a total of 312 days in jail.
{¶4} Appellant timely appealed. Counsel filed Appellant’s appellate brief,
pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493. Counsel
represented that he had reviewed the record, found no meritorious issues upon which to
base an appeal, and moved to withdraw. This court granted Appellant 30 days in which
“to file his own submission, if he so chooses, which raises any arguments in support of
the appeal.” This court held counsel's request to withdraw in abeyance. Appellant has
not filed any further brief or memorandum in support of his appeal.
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{¶5} In Anders, the United States Supreme Court outlined the proper steps to
follow in this situation: “if counsel finds his client's case to be wholly frivolous, counsel
should advise the court and request permission to withdraw; … the request to withdraw
must be accompanied by a brief referring to anything in the record that might arguably
support the appeal; … counsel should furnish the indigent client with a copy of counsel's
brief, and time must be allowed for the client to raise any points he chooses.” State v.
Spears, 11th Dist. Ashtabula No. 2013-A-0027, 2014-Ohio-2695, ¶ 5, citing
Anders at
744. The appellate court must conduct “a full examination of all the proceedings, to
decide whether the case is wholly frivolous.”
Anders at 744.
{¶6} In his brief, Appellant raises one potential area for review which may
arguably support his appeal.
{¶7} Appellant’s potential issue: “The trial court erred in imposing a prison
sentence on defendant-appellant, Samuel K. Barnett, instead of extending community
control sanctions as recommended by Mr. Barnett’s trial counsel.”
{¶8} The appellate standard of review for felony-sentencing is governed by R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231,
¶ 21. That provision states:
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 of 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:
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(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} “A sentence is contrary to law when it is ‘in violation of statute or legal
regulations ….’” State v. Meeks, 11th Dist. Ashtabula No. 2022-A-0060, 2023-Ohio-
988, at ¶ 11, quoting State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d
649, ¶ 34.
{¶10} Appellant’s sentence is not contrary to law and complies with R.C.
2929.15(B)(1). The statute provides: “If the conditions of a community control sanction
imposed for a felony are violated … the sentencing court may impose on the violator *
… (a) A longer time under the same sanction if the total time under the sanctions does
not exceed the five-year limit … (b) A more restrictive sanction … including but not
limited to, a new term in a community-based correctional facility, halfway house, or jail *
… (c) A prison term on the offender ….”
{¶11} In this case, the trial court sentenced Appellant accordingly under R.C.
2929.15(B)(1)(b). It imposed a more restrictive sanction – terminating community control
and imposing a jail sentence. Under R.C. 2929.15(B)(1), the trial court was not required
to extend community control sanctions. Appellant’s sentence does not violate R.C.
2929.15(B)(1) and is thus not contrary to law.
{¶12} Moreover, we review a trial court's revoking community control under an
abuse of discretion standard, and a “‘trial court's decision to revoke community control
even for a “minor” violation, is not an abuse of discretion.’” State v. Solomon, 11th Dist.
Portage No. 2017-P-0078, 2019-Ohio-1841, ¶ 21, quoting State v. Herald, 3rd Dist.
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Defiance No. 4-16-09, 2016-Ohio-7733, ¶ 28. An abuse of discretion is a term of art,
“connoting judgment exercised by a court, which does not comport with reason or the
record.” State v. Underwood, 11th Dist. Lake No. 2008-L-113,
2009-Ohio-2089, ¶ 30,
citing State v. Ferranto,
112 Ohio St. 667, 676-78 (1925). Stated differently, an abuse of
discretion is the trial court's “‘failure to exercise sound, reasonable, and legal decision-
making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900, ¶ 62, quoting
Black's Law Dictionary 11 (8th Ed.Rev.2004).
{¶13} “‘A trial court does not abuse its discretion by revoking an offender's
community control where the violation in question was one over which the offender had
control.’” State v. Noonan, 12th Dist. Butler Nos. CA2018-10-203 & CA2018-10-204,
2019-Ohio-2960, ¶ 19, quoting State v. Tranter, 12th Dist. Clermont No. CA2000-05-035,
2001 WL 290192, *3 (Mar. 26, 2001). “The privilege of community control rests upon a
defendant's compliance with the conditions of community control and any violation of
those conditions may properly be used to revoke the privilege.” State v. Ryan, 11th Dist.
Lake No. 2021-L-032,
2021-Ohio-4059, ¶ 25.
{¶14} Appellant pled guilty to violating a community control condition – not
appearing to the probation department for approximately two years. The trial court thus
did not abuse its discretion in revoking Appellant’s community control.
{¶15} Appellant’s potential issue is without merit.
{¶16} After a thorough and independent review of the record, we find no arguable
issues necessitating the appointment of new counsel. The instant appeal is without merit
and wholly frivolous.
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{¶17} Counsel's Motion to Withdraw is granted and the judgment of the Ashtabula
County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
EUGENE A. LUCCI, J.,
concur.
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