[Cite as State v. Music, 2015-Ohio-3162.]




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

STATE OF OHIO                                     :
                                                  :   Appellate Case No. 2014-CA-20
        Plaintiff-Appellee                        :
                                                  :   Trial Court Case Nos. 2014-CR-26
v.                                                :   Trial Court Case Nos. 2014-CR-102
                                                  :
JOHN A. MUSIC                                     :   (Criminal Appeal from
                                                  :    Common Pleas Court)
        Defendant-Appellant                       :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 7th day of August, 2015.

                                             ...........

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

DAVID M. MORRISON, Atty. Reg. No. 0087487, Morrison Law Office, LLC, Post Office
Box 750383, Dayton, Ohio 45475
      Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1} Defendant-appellant John A. Music appeals from his conviction and
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sentence, following guilty pleas, for Domestic Violence, a first-degree misdemeanor;

Assault, a fourth-degree felony; Burglary, a third-degree felony; and, in a separate

prosecution, Domestic Violence, a fourth-degree felony. Music’s assigned appellate

counsel has 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 that he could find no potential assignments

of error having arguable merit. Neither can we. Accordingly, the judgment of the trial

court is Affirmed.



                                      I.     The Offenses

       {¶ 2} The charges in Case No, 2014 CR 26 in the trial court all concern events

occurring one day in mid-January, 2014. The prosecutor recited these events at the

sentencing hearing:

              In the present case [Music] became belligerent. He spat on the

       table of Theresa Moorefield. And then Theresa Moorefield understandably

       became angry at him for spitting on her table. She asked him to leave and

       he refused. Then he subsequently began to assault other people located

       in the residence.    Assaulted Chelsea Akers.       He assaulted Theresa

       Moorefield. And he attempted to assault his girlfriend Shyannah Hall.

              The girls were so afraid of [Music] that they locked themselves in a

       bathroom. Had it not been for Zachariah Mitchell removing [Music] from

       the apartment and getting him placed into the hallway and locking the door

       [Music] likely would have continued his attempts to assault the girls.

              Law enforcement arrived on the scene. [Music] continued in his
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belligerent nature with law enforcement. He made his body limp as they

attempted to remove him from the apartment. This apartment is located on

the second floor. It is essentially an attic. It’s divided – walls were built up

to create separate, little apartments. And there is a very steep staircase

that comes down from that apartment, those apartments, to the outside

area.

        [Music] refused to walk willingly down those stairs. Creating a risk

to the safety of law enforcement. The hallway of the staircase is so narrow

that law enforcement could not walk side-by-side with him. So, literally,

one officer had to walk almost in front of him holding an arm while the other

walked behind him holding an arm.

        [Music] would make his body go limp and brace his legs on the sides

of the wall of the staircase so as to resist his removal from the apartment.

He kicked a chair that was laying over the staircase causing further risk of

injury to law enforcement and himself. He walked – when finally removed

outside, he, again, fell to the ground making his body limp.           And he

attempted to kick Officer Cooper in the groin. Had Officer Cooper not

moved, he would have succeeded. But Officer Cooper moved. And at

the last moment the kick missed the groin area and instead struck Officer

Cooper in the leg.

        Officer Cooper was a uniformed officer.        There are recordings,

which were provided to Defense Counsel as part of a discovery disclosure,

that clearly illustrate the abusive language and behavior of [Music] and law
                                                                                      -4-
      enforcement’s repeated request for him to behave himself. Once in the

      cruiser [Music’s] behavior continued.        Kicking at the cage.   Spitting.

      Cursing. Yelling.

             THE COURT: And is this while the vehicle was moving?

             MR. TALEBI [representing the State]:         Both stationary and in

      transport. Officer Pratt describes [Music] kicking the back of the cage

      behind Officer Pratt’s head while he’s driving [Music] to the police station.

      And describes his request for him to stop.

      {¶ 3} The charge in Case No. 2014 CR 102 in the trial court concerns events on a

day in early May, 2014. These events were also described by the prosecutor at the

sentencing hearing:

             The new criminal activity being yet another act of domestic violence

      with yet a completely different victim. This time the victim being Bryan

      Lindsey, Jr. [Music’s brother]. Mr. Lindsey apparently, according to the

      police report, began to discuss with [Music] his consumption of alcohol.

      [Music] was apparently consuming beer at the East Dallas Road address.

             When law enforcement arrived on the scene, they were able to

      interview Mr. Lindsey.    And based on their investigation on what they

      believed occurred is that [Music] became angry with Mr. Lindsey for talking

      to him about his alcohol consumption. [Music] grabbed a kitchen knife and

      threw it at Mr. Lindsey. The kitchen knife missed Mr. Lindsey striking the

      refrigerator door.

             Mr. Lindsey, fearing for his safety, left the residence. Began to
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      cross the street. [Music] pursued him grabbing another large kitchen knife.

      Throwing that large kitchen knife at Mr. Lindsey.          And this time he

      succeeded in striking Mr. Lindsey with this large kitchen knife.

             Fortunately, the large kitchen knife struck Mr. Lindsey with the butt or

      the handle of the knife and not the sharp end. But it struck him with such

      force that it left a fairly significant bruise.



                                II.     The Course of Proceedings

      {¶ 4} In Case No. 2014 CR 26, Music was charged by indictment with Assault, in

violation of R.C. 2903.13(A)(C), a first-degree misdemeanor; Burglary, in violation of R.C.

2911.12(A)(1)(d), a second-degree felony; Menacing, in violation of R.C. 2903.22(A), (B),

a fourth-degree misdemeanor; Domestic Violence, in violation of R.C. 2919.25(A), (D)(4),

a third-degree felony; Assault, in violation of R.C. 2903.13(A), (C), a first-degree

misdemeanor; and Assault Upon a Police Officer, in violation of R.C. 2903.13(A)(C)(3),1

a fourth-degree felony.

      {¶ 5} Pursuant to a plea agreement, a subsequent charge was added by a bill of

information, charging Music with Burglary, in violation of R.C. 2911.12(A)(3), (D), a

third-degree felony.

      {¶ 6} In Case No. 2014 CR 102, Music was charged by bill of information with

Domestic Violence, having previously been convicted in 2010 of Domestic Violence, in

violation of R.C. 2919.25(A),(D)(3), a fourth-degree felony.



1
  The indictment erroneously refers to R.C. 2903.13(A)(C)(3), but clearly charges a
violation of R.C. 2903.13(A)(C)(5).
                                                                                         -6-
       {¶ 7} On April 14, 2014, in Case No. 2014 CR 26, Music requested, and was

granted, a one-week’s continuance to consider the State’s proposed resolution of the

charges.

       {¶ 8} On April 29, 2014, in Case No. 2014 CR 26, Music and the State entered into

a plea agreement wherein the State agreed to amend the Domestic Violence charge to

delete reference to prior convictions, Music agreed to plead guilty to that charge as

amended, to plead guilty to the charge of Assault Upon a Police Officer, and to plead

guilty to an additional charge, added by a bill of information, of Burglary. The State

agreed to dismiss the remaining charges. The State also agreed that it would not pursue

criminal charges against Music relating to attempts to influence the testimony or

availability of witnesses for trial. As part of this plea agreement, Music waived indictment

with respect to the Burglary charge, and accepted service of the bill of information setting

forth that charge. However, Music was not asked to waive his right to one day’s notice of

the bill of information, which had been filed the preceding afternoon. The trial court

ordered a pre-sentence investigation.

       {¶ 9} On May 29, 2014, in Case No. 2014 CR 102, Music accepted service of the

bill of information, and pled guilty to the charge of Domestic Violence. As in Case No.

2014 CR 26, Music was not asked to waive one day’s notice of the bill of information.

The trial court then expressed some concern about possibly related Domestic Violence

charges pending in the Champaign County Municipal Court.             During a recess, the

prosecutor consulted with the municipal court prosecutor, following which he reported

that these pending charges would be dismissed upon Music’s pleading guilty to the

Domestic Violence charge in Case No. 2014 CR 102.
                                                                                      -7-
      {¶ 10} The trial court conducted a sentencing hearing for both cases. The trial

court imposed a five-month sentence for the Domestic Violence offense in Case No. 2014

CR 26, an eighteen-month sentence for Assault Upon a Police Officer, and a 24-month

sentence for Burglary, with the eighteen-month and 24-month sentences to be served

consecutively to one another, but concurrently with the five-month sentence. In Case

No. 2014 CR 102, the trial court sentenced Music to an eighteen-month sentence, to be

served consecutively to the eighteen- and 24-month sentences in Case No. 2014 CR 26,

for a total sentence of 60 months. The trial court also ordered these sentences to be

served concurrently with a pending jail sentence imposed on Music by the municipal

court. No fines or restitution was imposed. The trial court found that Music was not

indigent for purposes of court costs and court-appointed legal fees, and ordered Music to

pay these expenses at a minimum of $50 per month upon his release from confinement.

The trial court approved Music for placement in transitional control, but disapproved him

for shock incarceration or intensive program prison. The trial court made the necessary

findings for the imposition of consecutive sentences.     The trial court discussed the

statutory sentencing factors at some length.

      {¶ 11} From his conviction and sentence, Music appeals.



        III.   We Find No Potential Assignments of Error Having Arguable Merit

      {¶ 12} Music’s assigned counsel has filed a brief pursuant to Anders v. California,

supra, indicating that he could find no potential assignments of error having arguable

merit. By entry dated April 17, 2015, we allowed Music 60 days within which to file his

own, pro se brief. He has not done so.
                                                                                         -8-
       {¶ 13} In his brief, counsel stated that he had considered, as a potential

assignment of error, the failure to have given Music one day after service of the bills of

information within which to answer, as provided in R.C. 2941.49, but had concluded that it

had no merit. We agree.

       {¶ 14} R.C. 2941.49 provides that: “A defendant, without his assent, shall not be

arraigned or called on to answer to an indictment until one day has elapsed after receiving

or having an opportunity to receive in person or by counsel, a copy of such indictment.”

Music, through his counsel, accepted service of each bill of information at the same

hearing at which he pled guilty to it. Music did not expressly waive his rights under the

statute. Nevertheless, we conclude that the record demonstrates that Music was not

prejudiced.

       {¶ 15} At the April 14, 2014 hearing in Case No. 2014 CR 26, Music requested,

and was granted, a one-week continuance so that he could have more time to consider

the State’s proposed disposition of the case. At the plea hearing on April 29, 2014, the

trial court conducted a thorough plea colloquy, and Music demonstrated no confusion or

uncertainty during the hearing. At this plea hearing, as well as at the plea hearing in

Case No. 2014 CR 102, Music, who was under oath, testified that he had enough

information to make a knowing, intelligent, and voluntary decision with respect to his plea.

       {¶ 16} We conclude that the record demonstrates no reasonable possibility that

Music was prejudiced by the failure to have served him with each bill of information at

least one full day before the plea hearing.

       {¶ 17} Under Anders v. California, we have an independent duty to review the

record for potential assignments of error having arguable merit. We find none. The
                                                                                             -9-
plea colloquies were exemplary.         The trial court made the necessary findings for

consecutive sentences, and the record supports those findings

        {¶ 18} We considered one potential assignment of error – that Music was

disapproved for shock incarceration and for intensive program prison without the trial

court giving its reasons for disapproval. We have held that R.C. 2929.19(D) requires that

a trial court give its reasons when disapproving a defendant for either program. State v.

Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963, ¶ 16-27.

        {¶ 19} In the case before us, the trial court was not required to set forth any

reasons for disapproving Music for these programs, because Music was not eligible for

them.     Under R.C. 5120.032(B)(2)(c), a prisoner serving a prison term for a third-,

fourth-, or fifth-degree felony that is an offense in which the prisoner caused or attempted

to cause actual physical harm to a person is not eligible for intensive program prison.

The eligibility requirements for shock incarceration incorporate R.C. 5120.032. R.C.

5120.031(A)(4). Music’s Assault Upon a Police Officer conviction and his two Domestic

Violence convictions each involved, as an element, the causing, or attempting to cause,

actual physical harm to a person. Therefore, he was not eligible for either program, and

the trial court’s failure to give its reasons for disapproving his participation in the programs

was necessarily harmless.



                                         IV.    Conclusion

        {¶ 20} No potential assignments of error having arguable merit having been found,

the judgment of the trial court is Affirmed.

                                       .............
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HALL and WELBAUM, JJ., concur.


Copies mailed to:

Kevin S. Talebi
David M. Morrison
John A. Music
Hon. Nick A. Selvaggio
