[Cite as State v. Carnicom, 2016-Ohio-7290.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                      Court of Appeals No. WD-15-077

        Appellee                                   Trial Court No. 2013 CR 0373

v.

Shawn Carnicom                                     DECISION AND JUDGMENT

        Appellant                                  Decided: October 7, 2016

                                         *****
        Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold and
        David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellee.

        Mollie B. Hojnicki-Mathieson, for appellant.

                                               *****

        SINGER, J.

        {¶ 1} Appellant, Shawn Carnicom, appeals the November 24, 2015 judgment of

the Wood County Court of Common Pleas revoking his community control and imposing

a one-year sentence for forgery in violation of R.C. 2950.04(E)(2) and 2913.31, a felony

of the fifth degree. For the reasons that follow, we affirm.
                                   Background Facts

       {¶ 2} Appellant was indicted on one count of forgery. Appellant entered a not

guilty plea to the charge. On April 24, 2014, appellant withdrew his plea of not guilty

and entered a plea of guilty.

       {¶ 3} On June 16, 2014, a sentencing hearing was held and appellant was

sentenced to two years community control. As a condition of his community control,

appellant was to complete the SEARCH program of the NorthWest Community

Corrections Center. Appellant was also notified a violation of his community control

sanction may lead to a prison term of one year and imposition of postrelease control of up

to three years. This judgment was journalized June 18, 2014. Appellant did not timely

appeal this judgment but, on May 12, 2015, appellant filed a motion to reconsider his

sentence with the trial court. The motion was denied on June 15, 2015.

       {¶ 4} On October 16, 2015, the state filed a petition to revoke appellant’s

community control because he failed to complete the SEARCH program. Appellant was

discharged from the program because he accumulated six warnings and eight sanctions,

thereby being deemed as failing to progress. A community sanction violation hearing

was held, on November 19, 2015, and the trial court found appellant violated his

community control. Appellant was sentenced to one year incarceration, and was given

credit for 207 days of time served, for the violation. The judgment was journalized

November 24, 2015. It is from this judgment appellant now appeals.




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                                        Anders Brief

       {¶ 5} On March 31, 2016, appellant’s counsel filed a request to withdraw pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel

asserted, after thoroughly reviewing the transcript of proceedings in the trial court and the

applicable case law, no meritorious assignments of error could be presented. Counsel did

submit one potential assignment of error claiming appellant’s sentence was contrary to

law. The state filed a brief, concurring with the conclusion of appellant’s counsel that

there was no arguable basis for a meritorious assignment of error and urging this court to

permit counsel to withdraw.

       {¶ 6} The procedure to be followed by appointed counsel who desires to withdraw

for want of a meritorious, appealable issue is set forth in Anders, as well as State v.

Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the U.S.

Supreme Court found if counsel, after a conscientious examination of the case,

determines it to be wholly frivolous, counsel should so advise the court and request

permission to withdraw. Anders at 744. This request must be accompanied by a brief

identifying anything in the record which could arguably support the appeal. Id. In

addition, counsel must furnish the client with a copy of the brief and request to withdraw

and allow the client sufficient time to raise any matters the client so chooses. Id. Once

the requirements are fulfilled, the appellate court must conduct a full examination of the

proceedings and decide if the appeal is indeed frivolous. Id. If the appellate court




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determines the argument is frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal or it may proceed to a decision on the merits. Id.

       {¶ 7} Here, appellant’s counsel has satisfied the requirements set forth in Anders.

Appellant has not filed a pro se brief or otherwise responded to counsel’s request to

withdraw. Accordingly, we shall proceed with an examination of the potential

assignment of error set forth by appellant’s counsel as well as the entire record below to

determine if this appeal lacks merit and is, therefore, wholly frivolous.

                             Proposed Assignment of Error

       {¶ 8} Appellant’s counsel sets forth the following proposed assignment of error:

              Appellant’s sentence is contrary to law.

       {¶ 9} The court must therefore determine if the sentence is amply supported by the

facts on record.

       {¶ 10} “An appellant court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds clear and convincing

evidence that the record does not support the sentence.” State v. Marcum, __Ohio

St.3d__, 2016-Ohio-1002, __N.E. 3d__, ¶ 23.

       {¶ 11} R.C. 2953.08(G)(2) provides an appellate court may increase, reduce,

modify, or vacate a sentence and remand for resentencing where there is clear and

convincing evidence the record does not support the sentencing court’s findings under

R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is

otherwise contrary to law. Moreover, R.C. 2929.17 provides “the court imposing a



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sentence for a felony upon an offender who is not required to serve a mandatory prison

term may impose [community control].” See State v. Barron, 10th Dist. Franklin No.

09AP-458, 2009-Ohio-5785, ¶ 21(imposing two years community control for fifth degree

felony).

       {¶ 12} If the conditions of a community sanction are violated, the sentencing court

may impose upon the violator a prison term pursuant to R.C. 2929.14. See R.C.

2929.15(B)(1)(c). This prison term “shall be within the range of prison terms available

for the offense for which the sanction that was violated was imposed and shall not exceed

the prison term specified in the notice provided to the offender at the sentencing hearing

pursuant to [R.C. 2929.19(B)(2)].” The prison term for fifth degree felonies ranges from

six months to one year incarceration. See R.C. 2929.14(A)(5).

       {¶ 13} Here, the record reveals appellant’s sentence is not contrary to law.

Appellant violated his community control sanction by failing to complete the SEARCH

program in 2014. At the June 2014 sentencing, appellant was properly notified of this

condition of his community control and the possible sanction for violating it. The record

supports appellant violated the condition because he accumulated six warnings and eight

sanctions while in the program. The one-year sentence imposed upon appellant for the

violation is within the permissible statutory sentencing range for a fifth degree felony.

Furthermore, the trial court properly considered the purposes and principles of

sentencing, as stated in R.C. 2929.11, as well as the factors in R.C. 2929.12. Therefore,




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the trial court’s sentence is not contrary to law and the proposed assignment of error is

without merit.

       {¶ 14} Last is our examination of the record to determine whether this appeal is

frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Review of the

record, including the submitted transcript of the proceedings, does not disclose any errors

by the trial court which would justify a reversal of the judgment. We find this appeal to

be wholly frivolous, and counsel’s request to withdraw is found well-taken and is

granted.

                                         Conclusion

       {¶ 15} The judgment of the Wood County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The

clerk is ordered to serve all parties with notice of this decision.

                                                                       Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Arlene Singer, J.
                                                 _______________________________
Stephen A. Yarbrough, J.                                     JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE




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          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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