[Cite as State v. Missler, 2016-Ohio-3204.]




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


State of Ohio                                     Court of Appeals No. H-15-012

        Appellee                                  Trial Court No. CRI-2015-0047

v.

Andrew Missler                                    DECISION AND JUDGMENT

        Appellant                                 Decided: May 27, 2016

                                              *****

        Thomas J. McGuire, for appellant.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an Anders appeal. Appellant, Andrew Missler, appeals the judgment

of the Huron County Court of Common Pleas, convicting him of one count of possession

of heroin in violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth degree, and

sentencing him to a six-month prison term to be served concurrently to a three-year

sentence in another matter. For the following reasons, we affirm.
                         I. Facts and Procedural Background

       {¶ 2} The transcript reveals that appellant was indicted on two counts of felony

child endangering, felonies of the third degree, in case No. CRI-2015-0067.

Subsequently, appellant was charged by way of information with possession of heroin in

violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth degree, in case No.

CRI-2015-0047. As part of a negotiated plea agreement, appellant waived his right to a

grand jury indictment on the charge of possession of heroin, and pleaded guilty to that

charge. In addition, appellant pleaded guilty to one count of felony child endangering in

the other case. In exchange, the state dropped the second count of felony child

endangering, agreed not to pursue other charges that were pending, and recommended

that the sentences be ordered to be served concurrently. The trial court thereafter

engaged in a detailed Crim.R. 11 plea colloquy with appellant, following which the court

accepted appellant’s pleas and found him guilty.

       {¶ 3} At sentencing, the court heard statements from the state, one of the relatives

of the victim, and from appellant. Thereafter, the court, expressly considering the

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

recidivism factors in R.C. 2929.12, sentenced appellant to the maximum prison term of

36 months on the count of felony child endangering, and six months on the count of

possession of heroin. The court further ordered the sentences to be served concurrently.

       {¶ 4} Appellant has timely appealed his conviction and sentence. Prior to the

briefs being submitted, however, we recognized that appellant had only filed a notice of




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appeal in case No. CRI-2015-0047. Because the cases had not been consolidated in the

trial court, and because appellant had not filed a notice of appeal in case No. CRI-2015-

0067, we determined that this appeal is limited to his conviction for possession of heroin

in case No. CRI-2015-0047.

       {¶ 5} Subsequently, appointed counsel for appellant filed a brief and requested

leave to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967). Under Anders, 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. Id. at 744. This request, however, must be accompanied by a

brief identifying anything in the record that could arguably support the appeal. Id.

Counsel must also furnish the client with a copy of the brief and request to withdraw and

allow the client sufficient time to raise additional matters. Id. Once these requirements

have been satisfied, the appellate court must then conduct a full examination of the

proceedings held below to determine if the appeal is indeed frivolous. If the appellate

court determines that the appeal is frivolous, it may grant counsel’s request to withdraw

and dismiss the appeal without violating constitutional requirements, or it may proceed to

a decision on the merits if state law so requires. Id.

                                 II. Assignment of Error

       {¶ 6} In his Anders brief, counsel has assigned the following potential error for our

review:




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              I. Whether appellant’s sentence on a fifth degree felony to a term of

       incarceration was an abuse of discretion.

       {¶ 7} Appellant has not filed a pro se brief or otherwise raised any additional

matters.

                                         III. Analysis

       {¶ 8} We review a felony sentence under the two-prong approach set forth in R.C.

2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425,

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

or vacate and remand a disputed sentence if it clearly and convincingly finds either of the

following:

              (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} Relevant here, R.C. 2929.13(B)(1)(b)(x) provides that a trial court has

discretion to impose a prison term for a felony of the fourth or fifth degree that is not an

offense of violence if “[t]he offender at the time of the offense was serving, or the

offender previously had served, a prison term.” In its sentencing entry, the court found

that appellant had previously served a prison term, as detailed in the presentence




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investigation report. Thus, we conclude that the record supports the court’s finding under

that section.

       {¶ 10} We further conclude that appellant’s sentence is not otherwise contrary to

law. Here, the trial court appropriately considered R.C. 2929.11 and 2929.12 when

fashioning its sentence, and the six-month prison term is within the range of potential

sanctions for a fifth-degree felony. R.C. 2929.14(A)(5).

       {¶ 11} Therefore, we hold that the trial court did not err when it sentenced

appellant to a prison term on the fifth-degree felony of possession of heroin.

Accordingly, counsel’s proposed assignment of error is not well-taken.

                                      IV. Conclusion

       {¶ 12} We have conducted an independent review of the record, as required by

Anders, and find no issue of arguable merit for appeal. Therefore, counsel’s motion to

withdraw is hereby granted.

       {¶ 13} For the foregoing reasons, the judgment of the Huron County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

       {¶ 14} The clerk is ordered to serve all parties with notice of this decision.


                                                                         Judgment affirmed.




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                                                                      State v. Missler
                                                                      C.A. No. H-15-012




       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


           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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