[Cite as State v. Rush, 2016-Ohio-4895.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2015-CA-54
                                                 :
 v.                                              :   Trial Court Case No. TRC1503124A
                                                 :
 MATTHEW J. RUSH                                 :   (Criminal Appeal from
                                                 :   Municipal Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                               Rendered on the 8th day of July, 2016.

                                            ...........

BETSY DEEDS, Atty. Reg. No. 0076747, Prosecuting Attorney, City of Fairborn, 510
West Main Street, Fairborn, Ohio 45324
      Attorney for Plaintiff-Appellee

SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, P.O. Box 752345, Dayton, Ohio 45475
    Attorney for Defendant-Appellant

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




WELBAUM, J.
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       {¶ 1} Defendant-appellant, Matthew J. Rush, appeals from the conviction and

sentence he received in the Fairborn Municipal Court after pleading guilty to one count of

operating a vehicle while under the influence of drugs or alcohol (OVI). In proceeding

with the appeal, Rush’s assigned 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), indicating there are no

issues with arguable merit to present on appeal. After conducting a review as prescribed

by Anders, we also find no issues with arguable merit. Accordingly, the judgment of the

trial court will be affirmed.

       {¶ 2} On April 18, 2015, Rush was charged with two OVI counts, one in violation

of R.C. 4511.19(A)(1)(a) and the other in violation R.C. 4511.19(A)(1)(d). He was also

charged with operating a vehicle left of center in violation of R.C. 4511.25 and failure to

wear a seatbelt in violation of R.C. 4513.263(B)(1). Rush initially pled not guilty to the

charges, filed discovery requests, and then moved to preserve evidence of any video or

audio tapes, which the trial court granted.     After attending a pretrial hearing, Rush

appeared at court on August 27, 2015, and entered a plea of guilty to the OVI charge

under R.C. 4511.19(A)(1)(d), a misdemeanor of the first degree. In exchange for his

plea, the State agreed to dismiss the remaining charges. Rush had three prior OVI

convictions dating back to 2006.

       {¶ 3} Prior to Rush’s guilty plea, the trial court engaged in a plea colloquy that

complied with the requirements set forth for “petty offense” misdemeanors under Crim.R.

11(E). See State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059,

¶ 13-14 (finding a first-degree misdemeanor OVI constituted a “petty offense” for
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purposes of Crim.R. 11(E), and that under that rule, the trial court was only required to

inform the defendant of the effect of his guilty plea, i.e., that his guilty plea was a complete

admission of guilt).

       {¶ 4} After accepting Rush’s plea and finding him guilty, the trial court sentenced

Rush to 180 days of jail with 100 days suspended on the condition that he not commit a

similar violation within three years. As for the remaining 80 days, the trial court ordered

Rush to serve 20 days in jail and 60 days on house arrest with an alcohol monitor and

work release.    The trial court also imposed a $450 fine, suspended Rush’s driver’s

license for three years with driving privileges via an interlock device, and placed him on

up to three years of supervised community control that included drug and alcohol

treatment.

       {¶ 5} On September 11, 2015, Rush filed a notice of appeal from his conviction

and sentence and requested the appointment of appellate counsel.                Following the

appointment of counsel, on February 26, 2016, Rush’s appellate counsel filed an Anders

brief indicating that there were no issues with arguable merit to present on appeal. On

March 3, 2016, we notified Rush that his counsel found no meritorious claim for review

and granted him 60 days to file a pro se brief assigning any errors. Rush did not file a

pro se brief.

       {¶ 6} Our task in this case is to conduct an independent review of the record as

prescribed by Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. In Anders cases,

the appellate court must conduct a thorough examination of the proceedings to determine

if the appeal is actually frivolous, and if it is, the court may “grant counsel’s request to

withdraw and then dismiss the appeal without violating any constitutional requirements,
                                                                                       -4-

or the court 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. “If we find that any issue presented or which an independent analysis reveals is not

wholly frivolous, we must appoint different appellate counsel to represent the defendant.”

(Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242,

¶ 7. “Anders equated 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. Pullen, 2d Dist.

Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. 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.

       {¶ 7} In conducting our independent review, Rush’s appellate counsel has

requested that we consider the following potential assignment of error:

       APPELLANT’S SENTENCE WAS SO HARSH AND ARBITRARY AS TO

       CONSTITUTE AN ABUSE OF DISCRETION BY THE TRIAL COURT.

       {¶ 8} We apply an abuse of discretion standard of review to a suggestion that

misdemeanor sentences are excessive. State v. Fankle, 2015-Ohio-1581, 31 N.E.3d

1290, ¶ 18 (2d Dist.), citing State v. Peagler, 2d Dist. Montgomery No. 24426, 2012-Ohio-

737, ¶ 3. An abuse of discretion implies that the trial court’s attitude was unreasonable,

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

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

(1990). “It is to be expected that most instances of abuse of discretion will result in
                                                                                        -5-


decisions that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning process that

would support that decision.” Id.

       {¶ 9} When sentencing for a misdemeanor offense, a trial court is guided by the

“overriding purposes of misdemeanor sentencing,” which are to protect the public from

future crime by the offender and others and to punish the offender. R.C. 2929.21(A);

State v. Collins, 2d Dist. Greene No. 2012-CA-2, 2012-Ohio-4969, ¶ 9. “To achieve

those purposes, the sentencing court [must] consider the impact of the offense upon the

victim and the need for changing the offender's behavior, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or the victim and the public.”

Id. The sentence imposed must be “reasonably calculated to achieve the two overriding

purposes of misdemeanor sentencing * * *, commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim, and consistent with

sentences imposed for similar offenses committed by similar offenders.”               R.C.

2929.21(B); Collins at ¶ 9.

       {¶ 10} “A trial court is also required to consider the nature and circumstances of

the offense, whether there was a history of persistent criminal activity or character that

reveals a substantial risk of the offender committing another offense, and numerous other

factors related to the offender and the offense.” Collins at ¶ 10, citing R.C. 2929.22(B).

“However, in misdemeanor sentencing, there is no requirement that a trial court

specifically state the reasons for its sentence on the record.” (Citations omitted) Id. “If

the sentence imposed is within permissible statutory limits, a reviewing court will presume

that the trial court considered the sentencing factors in R.C. 2929.22(B), absent a showing
                                                                                         -6-

to the contrary.” (Citation omitted.) State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-

6826, 844 N.E.2d 372, ¶ 9 (2d Dist.).

       {¶ 11} In this case, Rush’s sentence is within the permissible statutory limits

provided for in R.C. 4511.19(G)(1)(a) and R.C. 2929.25(A). We note that while Rush

has three prior OVI convictions, the statutory “look back” period for determining the

appropriate penalty is six years, and none of Rush’s prior convictions were within six

years of the instant OVI offense. Therefore, the trial court properly considered the instant

OVI offense as the first OVI within six years, and imposed penalties within the limits

prescribed under R.C. 4511.19(G)(1)(a).

       {¶ 12} Although the trial court did not specify its reasons for imposing the sentence

that it did, in light of the record, we cannot say the sentence was an abuse of discretion.

The record indicates that Rush has three prior OVI convictions that involved collisions

and an ongoing struggle with addiction. The record further indicates that at the time of

the OVI offense at issue, Rush had a blood-alcohol concentration of .167, which is twice

the legal limit. Based on these facts, we agree with counsel that the potential assignment

of error claiming an abuse of discretion at sentencing lacks arguable merit.

       {¶ 13} Having independently reviewed the record as required by Anders, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we have found no non-frivolous issues for appeal.

Accordingly, the judgment of the trial court is affirmed.

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



FROELICH, J. and HALL, J., concur.
                    -7-




Copies mailed to:

Betsy Deeds
Scott A. Ashelman
Matthew J. Rush
Hon. Beth W. Root
