[Cite as State v. Middleton, 2019-Ohio-2171.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                  :       OPINION

                  Plaintiff-Appellee,            :
                                                         CASE NO. 2018-P-0064
         - vs -                                  :

 RICKEY D. MIDDLETON, JR.,                       :

                  Defendant-Appellant.           :


 Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR
 00104.

 Judgment: Affirmed.


 Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
 OH 44266 (For Plaintiff-Appellee).

 Chris Wells, P.O. Box 1487, Stow, OH 44224 (For Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Rickey D. Middleton, Jr. (“Mr. Middleton”), appeals from the

judgment of the Portage County Court of Common Pleas, which sentenced him to a 17-

month term of imprisonment following his written plea of guilty to one count of domestic

violence, a fourth degree felony, in violation of R.C. 2919.25.

        {¶2}      Mr. Middleton was appointed counsel for appellate purposes by the trial

court, but due to counsel’s failure to follow through with the appointment, the trial court

removed him and appointed new appellate counsel.
       {¶3}   Mr. Middleton’s new counsel perfected the appeal in this case but filed a

motion to withdraw on the basis that Mr. Middleton’s appeal was frivolous. His motion

was accompanied by an “Anders brief” in accordance with the Supreme Court of the

United States’ decision inf Anders v. California, 386 U.S. 738 (1967). In his Anders brief,

counsel set forth two potential assignments of error: (1) whether the trial court erred by

allowing the victim’s husband to speak for her at the sentencing hearing, and (2) whether

the trial court abused its discretion by sentencing Mr. Middleton to the nearly maximum

term of imprisonment permitted for a fourth degree felony. Mr. Middleton’s counsel

properly certified that a copy of the Anders brief was sent to Mr. Middleton with

instructions, so Mr. Middleton could file his own brief if he so chose.

       {¶4}   We then issued an order, giving Mr. Middleton 30 days to file a submission

to raise any arguments in support of his appeal. No further briefing was filed. Further, we

held his counsel’s motion to withdraw in abeyance until our present determination.

       {¶5}   After a thorough and independent review of the record and all proceedings,

we find appellate counsel’s potential assignments of error without merit because the

victim was statutorily entitled to have a representative speak for her at the sentencing

hearing, and Mr. Middleton’s sentence is supported by the evidence and not contrary to

law. As there are no legal points on the merits of this case, we decline to appoint new

counsel, and counsel’s motion to withdraw is granted. The judgment of the Portage

County Court of Common Pleas is affirmed.

                             Substantive and Procedural History

       {¶6}   Per the presentence investigation, on January 28, 2018, the police

responded to 1536 Benjamin Court for a noise complaint with the resident, Sunny




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Hawkins. Ms. Hawkins passed the police notes that said, “help, there’s someone else in

the house,” and “warrants.” The “someone” was later identified as her live-in boyfriend,

Mr. Middleton. The officers observed that Ms. Hawkins was visibly nervous and upset,

and she disclosed she had been abused by Mr. Middleton on December 24, 2017.

       {¶7}   The investigation revealed that after an argument, Mr. Middleton threw her

to the ground. She got up, and he shoved her back down. He got on top of her from

behind, pressing her neck into the ground. She rolled over and he began choking her to

the point she could not breath. Ms. Hawkins showed the police photographs from the

incident and provided a written statement. The police arrested Mr. Middleton and he

remained in jail until his sentencing hearing on April 9, 2018.

       {¶8}   On February 28, 2018, the court held a discovery/change of plea hearing.

After engaging in a colloquy with Mr. Middleton, the court accepted Mr. Middleton’s plea

of guilty to one count of domestic violence, a felony of the fourth degree. The court further

ordered an expedited presentence investigation and continued bond.

       {¶9}   A little over a month later, on April 9, 2018, the court held a sentencing

hearing. The state stayed silent as to a sentence recommendation. The court considered

Ms. Hawkins’s victim impact statement, and Ms. Hawkins’s representative, Jack Hawkins,

her estranged ex-husband, spoke on her behalf. Mr. Hawkins told the court that his

children (with Ms. Hawkins) are in fear for their mother’s safety and that Mr. Middleton

told Ms. Hawkins he will be “coming after her” if he gets out. According to Mr. Hawkins,

all of the children have seen Mr. Middleton physically abuse Ms. Hawkins.

       {¶10} Mr. Middleton’s counsel spoke on Mr. Middleton’s behalf and asked the

court to allow Mr. Middleton to complete probation because he had already served 73




                                             3
days in jail while awaiting his sentence with demonstrated good behavior, including

attending treatment programs. Mr. Middleton told the court Ms. Hawkins had beat him in

the past, and that he was done with their “toxic relationship.”

       {¶11} The court reviewed the presentence investigation report, the negotiations

between Mr. Middleton and the state, and Mr. Middleton’s extensive history of convictions,

which included prison time. The court then found, after weighing the relevant seriousness

and recidivism factors, a prison term was consistent with the purposes and principles of

sentencing and that he was not amenable to community control sanctions. Given the

nature of the crime, with the physical harm caused and threats made, in addition to Mr.

Middleton’s prior prison term, the court found a prison term necessary to protect the public

and to protect Mr. Middleton from committing a more serious crime.

       {¶12} The court issued a nunc pro tunc sentencing order and journal entry on April

13, 2008, to correct the date of the sentencing hearing, which originally mistakenly stated

the sentencing hearing was held on July 31, 2017, instead of April 9, 2018.

       {¶13} Mr. Middleton filed a motion for the court to appoint counsel to represent

him to file an appeal, which the court granted. Mr. Middleton then filed two pro se motions

for judicial release. The court overruled both motions, finding them not well-taken. Mr.

Middleton also filed a pro se motion for jail time credit. The court overruled his motion

since it concerned credit of jail time after his sentencing while awaiting conveyance to the

reception facility. This portion of jail time credit is calculated by the reception facility and

not the court.




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       {¶14} As previously noted, the court appointed new counsel after Mr. Middleton’s

original appointed appellate counsel failed to file an appeal.           His new counsel

subsequently filed a motion to withdraw and an Anders brief.

       {¶15} “In Anders, the Supreme Court held that “[i]f counsel is convinced, after

conscientious investigation, that the appeal is frivolous, * * * he may ask to withdraw on

that account. Id. at 741, citing Ellis v. United States (1958), 356 U.S. 674, 675. The

Anders Court delineated several requirements that must be met in order for counsel to

withdraw.   For instance, the request to withdraw must be accompanied by a brief

identifying anything in the record that could arguably support an appeal. Furthermore,

counsel must furnish his or her client with a copy of the brief and request to withdraw and

allow the client sufficient time to raise any conceivable matters he or she chooses. Id.

Once these requirements have been met, the appellate court must examine the record

fully to determine if the appeal is indeed frivolous. If the appellate court determines there

are no meritorious issues, it may grant counsel’s request to withdraw as counsel and

affirm the trial court’s decision.” State v. Miller, 11th Dist. Ashtabula No. 2007-A-0026,

2007-Ohio-5206, ¶6.

       {¶16} Turning to the case at hand, assigned counsel filed an Anders brief

asserting that there were no meritorious issues and that the appeal was frivolous.

Counsel asked this court to review two potential assignments of error: (1) whether the

trial court erred by allowing the victim’s husband to speak at sentencing as to the victim’s

feelings and state of mind; and (2) whether the trial court abused its discretion by

sentencing Mr. Middleton to the nearly maximum prison sentence allowable for a felony

of the fourth degree.




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       {¶17} As to the first potential assignment of error, Ms. Hawkins was statutorily

allowed to have a victim representative speak on her behalf. She gave the court a victim

impact statement beforehand and was afraid to speak in open court. Pursuant to R.C.

2929.19, the statute governing sentencing hearings, “[a]t the hearing, * * * the offender,

the prosecuting attorney, the victim or the victim’s representative in accordance with

section 2930.14 of the Revised Code, and, with the approval of the court, any other

person may present information relevant to the imposition of sentence in the case.”

(Emphasis added.) R.C. 2929.19(A). See also State v. Bilicic, 11th Dist. Ashtabula No.

2017-A-0066, 2018-Ohio-5377, ¶21 (“R.C. 2929.19(A)(1) provides that the trial court has

the discretion to permit any person with information relevant to the imposition of sentence

to speak at the sentencing hearing”).

       {¶18} We also find no merit as to the potential second assignment of error that the

court erred in sentencing Mr. Middleton to the almost maximum term for a fourth degree

felony. In imposing a 17-month sentence, the court stated that in addition to the record,

oral statements, the victim impact statement, and the presentence investigation report, it

considered the purposes and principles of felony sentencing set forth in R.C. 2929.11

and R.C. 2929.12, including those related to the seriousness of the crime and the

likelihood that Mr. Middleton will reoffend. Indeed, the court remarked it was “specifically

finding that even though this is a felony four, weighing the relevant, seriousness and

recidivism factors, a prison term is consistent with the purposes and principles of

sentencing,” and that Mr. Middleton is not amenable to community control sanctions. The

court further explained it was making this finding because Mr. Middleton physically

harmed and threatened the victim. Moreover, he has a lengthy criminal history, including




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a conviction for domestic violence, and served time in prison for a separate, unrelated

offense after violating community control sanctions.

       {¶19} We cannot say that the record does not clearly and convincingly support the

trial court’s findings under relevant statutes or that the sentence is otherwise contrary to

law. See State v. O’Keefe, 11th Dist. Lake No. 2018-L-088, 2019-Ohio-841, ¶15 (“[A]n

appellate court may vacate or modify a felony sentence on appeal only if it determines by

clear and convincing evidence that the record does not support the trial court’s findings

under relevant statutes or that the sentence is otherwise contrary to law”). Moreover, it

is apparent that in exercising its discretion, the court considered the purposes of

sentencing in R.C. 2929.11 and the statutory guidelines and factors set forth in R.C.

2929.12.   Id. at ¶20.

       {¶20} After a thorough and independent review of the record, including the

transcripts of the proceedings, the presentence investigation report, and Mr. Middleton’s

brief, we hold there was sufficient evidence presented upon which to convict appellant of

domestic violence and sentence him to 17 months in prison.

       {¶21} As there are no arguable legal points on the merits of this matter, counsel’s

motion to withdraw is granted, and the judgment of the Portage County Court of Common

Pleas is hereby affirmed.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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