[Cite as State v. Fields, 2019-Ohio-2834.]




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

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2018-CA-35
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-109
                                                  :
 JESSE G. FIELDS                                  :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                             OPINION

                               Rendered on the 12th day of July, 2019.

                                             ...........

KEVIN TALEBI, Atty. Reg. No. 0069198, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellant

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




WELBAUM, P.J.
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       {¶ 1} Defendant-appellant, Jesse G. Fields, appeals from his conviction and

sentence in the Champaign County Court of Common Pleas after he pled guilty to one

count of aggravated possession of drugs. On February 26, 2019, Fields’s 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 non-frivolous issues

for appeal.   On March 6, 2019, this court notified Fields that his counsel found no

meritorious claims to present on appeal and granted Fields 60 days to file a pro se brief

assigning any errors.     After Fields failed to file a pro se brief, we conducted an

independent review of the record as required by Anders. Upon reviewing the record, we

find no issues with arguable merit for appeal. Accordingly, the judgment of the trial court

will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On June 4, 2018, the Champaign County Grand Jury returned an indictment

charging Fields with one count of theft of drugs in violation of R.C. 2913.02(A)(1), (B)(6),

and one count of aggravated possession of drugs in violation of R.C. 2925.11(A),

(C)(1)(a). The charges arose after Fields’s employer, Brandy Jackson, reported to police

that Fields had stolen and ingested a capsule of lawfully prescribed Adderall that

belonged to her son.

       {¶ 3} Pursuant to a plea agreement, Fields entered a guilty plea to aggravated

possession of drugs, a felony of the fifth degree. In exchange for his guilty plea, the

State agreed to dismiss the charge for theft of drugs and to have a presentence

investigation (“PSI”) conducted prior to sentencing.         The State also agreed to
                                                                                           -3-


recommend that Fields be sentenced to community control sanctions.               The State’s

recommendation for community control was conditioned on the PSI not revealing any

undisclosed criminal convictions and on Fields not violating his bond or engaging in any

further criminal activity. Fields also agreed to not pursue intervention in lieu of conviction

under R.C. 2951.041.

       {¶ 4} After conducting a plea colloquy in compliance with Crim.R. 11, the trial court

accepted Fields’s guilty plea. The trial court then ordered a PSI report and scheduled

the matter for sentencing. The PSI report indicated that, for the past seven years, Fields

served as a caretaker for Jackson and her children. In exchange for Fields’s services,

Jackson and her husband provided Fields with shelter at their residence. Fields told the

PSI examiner that Jackson and her husband supported him financially and that he paid

no bills.

       {¶ 5} The PSI also indicated that Jackson attended the PSI interview with Fields.

Although Fields indicated that he could read and write, the PSI examiner reported that

Jackson indicated she filled out the PSI questionnaire for Fields with Fields’s assistance.

The PSI examiner also noted that, during the interview, Fields would often look to Jackson

for answers to the examiner’s questions and that Jackson would often correct Fields’s

statements.

       {¶ 6} The PSI report further indicated that Fields admitted to stealing and ingesting

an Adderall pill that was legally prescribed to Jackson’s son. However, on the day

Jackson reported the incident to police, Fields told the investigating officer that Jackson

had given him one of her son’s Adderall pills six months earlier to help him stay awake

and focused. Fields, however, admitted that he did not have permission to take the pill
                                                                                           -4-


in question. Other than the Adderall pills, Fields told the PSI examiner that he has not

used drugs since 2009 and that he does not need treatment for substance abuse.

       {¶ 7} As for his criminal history, the PSI revealed that Fields had no prior felony

record.   Fields’s record only consisted of a first-degree-misdemeanor conviction for

receiving stolen property in 2010. Fields also self-reported a 2006 domestic violence

conviction in Las Vegas, Nevada, which the PSI examiner could not confirm.               Due

primarily to his limited criminal history, Fields was considered to be a low risk for

reoffending under the Ohio Department of Rehabilitation and Correction’s Community

Supervision Risk Assessment System.

       {¶ 8} Prior to sentencing Fields, the trial court considered the PSI report, the

principles and purposes of sentencing in R.C. 2929.11, the seriousness and recidivism

factors in R.C. 2929.12, Fields’s sentencing memorandum, and the oral statements given

by both parties. During the parties’ statements, both the prosecutor and Fields’s defense

counsel agreed that Jackson was a negative influence on Fields and should not be

involved in his life.   In addition to recommending that Fields have no contact with

Jackson, defense counsel recommended that Fields be ordered to obtain gainful

employment and to complete the “Thinking for a Change” program.

       {¶ 9} Pursuant to R.C. 2929.13(B)(1)(a), the trial court found that community

control sanctions were mandatory for Fields’s offense. The trial court therefore ordered

Fields to serve one year of community control sanctions that included both standard and

special conditions. As part of the special conditions, the trial court ordered Fields to have

no contact with Jackson or her son. In order to give Fields time to find employment and

a new place to live, the trial court indicated that the no contact order would not take effect
                                                                                        -5-


until October 15, 2018, which was four weeks from the date of sentencing. Other special

conditions of Fields’s community control included completing the “Thinking for a Change”

program, attending substance abuse counseling, complying with random drug screens,

obtaining employment, and paying court costs.

      {¶ 10} Fields thereafter appealed from his conviction and sentence.



                                   Law and Analysis

      {¶ 11} As previously noted, Fields’s appellate counsel filed a brief pursuant to

Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. According to Anders, this court

must conduct an independent review of the record to determine if the appeal at issue 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.

      {¶ 12} If we determine the appeal is frivolous, we may grant counsel’s request to

withdraw and then dismiss the appeal without violating any constitutional requirements,

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,

2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.

However, “[i]f we find that any issue presented or which an independent analysis reveals
                                                                                        -6-


is not wholly frivolous, we must appoint different appellate counsel to represent the

defendant.” Marbury at ¶ 7, citing Pullen at ¶ 2.

       {¶ 13} In this case, Fields’s appellate counsel has raised one potential assignment

of error for this court’s review. Under the potential assignment of error, counsel suggests

that the trial court may have abused its discretion by imposing a burdensome special

condition of community control. In so arguing, counsel specifically points to the special

condition requiring Fields to have no contact with Jackson, as that condition left Fields

without a home. Counsel submits that it is arguable that a community control sanction

that essentially requires a defendant to become homeless is unduly burdensome and an

abuse of discretion. Under the circumstances of this case, we find no arguable merit to

this claim.

       {¶ 14} “When ordering community control sanctions, R.C. 2929.15 grants a

sentencing court broad discretion to impose residential, nonresidential, and financial

sanctions, as well as other conditions the court deems appropriate.” (Emphasis added.)

State v. Rogers, 2d Dist. Montgomery No. 24848, 2012-Ohio-4753, ¶ 21, citing State v.

Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 10. “Therefore, we

review a trial court’s imposition of conditions upon a defendant’s community control

sanctions under an abuse-of-discretion standard.” Id.

       {¶ 15} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.”    (Citation omitted.)   AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). Most abuses of discretion “result in decisions that are simply unreasonable,

rather than decisions that are unconscionable or arbitrary.”          Id.   Decisions are
                                                                                           -7-

unreasonable when they are not supported by a sound reasoning process. Id.

       {¶ 16} “[T]he tests for reasonableness of a [community control] sanction are those

announced in [State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990)] regarding

reasonableness of a condition of probation.” State v. Lacey, 2d Dist. Montgomery No.

23261, 2009-Ohio-6267, ¶ 12, citing Talty. In Jones, the Supreme Court of Ohio held

that a trial court may impose conditions upon a defendant’s probation that relate to the

interests of doing justice, rehabilitating the offender, and insuring his good behavior.

Jones at 52, citing former R.C. 2951.02(C). In making this determination, “courts should

consider whether the condition (1) is reasonably related to rehabilitating the offender, (2)

has some relationship to the crime of which the offender was convicted, and (3) relates

to conduct which is criminal or reasonably related to future criminality and serves the

statutory ends of probation.” (Citations omitted.) Id. at 53.

       {¶ 17} When considering the factors in Jones, it cannot be said that the trial court’s

order for Fields to have no contact with Jackson or her son was unreasonable. As to the

first factor, the no contact order was reasonably related to rehabilitating Fields because

the record indicates that Jackson was a negative influence on him. This is demonstrated

by the fact that Jackson had previously given Fields one of her son’s Adderall pills to help

him stay awake and focused. In addition, the bartering arrangement between Jackson

and Fields had allowed 48-year-old Fields to go without having gainful employment for

seven years. The record indicates that Fields was previously employed as a truck driver,

but he decided to quit driving because “he just got tired of it” and “wanted to take a break.”

Sentencing Trans. (Sept. 17, 2018), p. 9. Despite being healthy and capable of working,

Fields had since lived on food stamps and had not paid taxes since 2004.                  His
                                                                                         -8-


arrangement with Jackson had permitted him to continue this trend.               Jackson’s

participation in the PSI process also demonstrated that Jackson exerted an odd amount

of control over Fields’s life. For these reasons, it would be reasonable to conclude that

Jackson’s influence over Fields could diminish the prospect of Fields remaining drug free

and obtaining gainful employment.

        {¶ 18} With regard to the second factor in Jones, we find that the no contact order

bore some relationship to the crime since Jackson had previously given Fields an Adderall

pill.   Similarly, for the third factor, the no contact order was reasonably related to

preventing possible future criminality since it prevented Fields from procuring any more

Adderall from Jackson or her son.

        {¶ 19} We further note that the trial court imposed the no contact order after both

the prosecutor and Fields’s defense counsel expressed their belief that the no contact

order was in Fields’s best interest. Although the no contact order required Fields to find

a new place to live, the order did not go in effect until four weeks after sentencing, which

provided Fields with time to find a new residence. When the trial court asked Fields if he

believed four weeks was “fair,” Fields responded: “Yes, Your Honor.” Sentencing Trans.

(Sept. 17, 2018), p. 16.

        {¶ 20} For the foregoing reasons, we find that appellate counsel’s potential

assignment of error lacks arguable merit. The special condition of community control

requiring Fields to have no contact with Jackson or her son was reasonable and not an

abuse of discretion. Therefore, no responsible contention can be made that the no

contact order offers a basis for reversal.

        {¶ 21} After conducting an independent review of the record as required by
                                                                                      -9-

Anders, we find that, based on the facts and relevant law involved, there are no issues

with arguable merit to present on appeal. Accordingly, the judgment of the trial court is

affirmed.

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



FROELICH, J. and HALL, J., concur.




Copies sent to:

Kevin Talebi
Michael R. Pentecost
Jesse G. Fields
Hon. Nick A. Selvaggio
