[Cite as State v. Stewart, 2011-Ohio-181.]




                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              LAWRENCE COUNTY

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 09CA33
                                :
     vs.                        : Released: January 13, 2011
                                :
BRANDON T. STEWART,             : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Warren N. Morford, Jr., South Point, Ohio, for Appellant.

J.B. Collier, Jr., Lawrence County Prosecutor, and Jeffrey M. Smith,
Lawrence County Assistant Prosecutor, Ironton, Ohio, for Appellee.
_____________________________________________________________

McFarland, P.J.:

        {¶1} Defendant-Appellant, Brandon T. Stewart, appeals the decision

of the Lawrence County Court of Common Pleas that found him guilty of

violating the terms of his previously-imposed community control sanctions

and that sentenced appellant to a three-year prison term to be served

consecutively to a prison sentence appellant received in a different case.

Appellant’s counsel, after reviewing the record, states he can find no
Lawrence App. No. 09CA33                                                                                   2


meritorious claim for appeal and, pursuant to Anders v. California, requests

permission to withdraw from the case. However, counsel presented one

potential assignment of error for us to consider. Counsel suggests that the

trial court erred by sentencing appellant to consecutive prison terms.

Because we find this potential assignment of error to be wholly frivolous, we

grant counsel’s request to withdraw and affirm the decision of the trial court.

                                                    I.

                                               FACTS

        {¶2} On October 1, 2008, the trial court convicted appellant of

burglary, in violation of R.C. 2911.02(A)(3), and of theft of a dangerous

drug, in violation of R.C. 2913.02(A)(1). The court sentenced appellant to

concurrent prison terms of four years for the robbery offense and of

seventeen months for the theft of dangerous drug offense. On February 9,

2009, the court granted appellant judicial release.

        {¶3} On September 20, 2009, appellant committed new criminal

offenses. At a November 4, 2009 hearing, appellant waived presentment of

the charges to a grand jury and agreed to proceed under a bill of

information.1


1
 The burglary and resisting arrest charges were assigned a new case number, 09CR289. The trial court
appears to have combined the plea and sentencing hearing for that case number with the case number that
gives rise to the instant appeal, 08CR285. We further note that appellant filed a notice of appeal under
case number 09CR289, but it apparently was dismissed for failure to prosecute.
Lawrence App. No. 09CA33                                                         3


      {¶4} On November 18, 2009, the court held a hearing regarding the

alleged community control violations that apparently occurred as a result of

appellant’s new criminal offenses and also held a plea and sentencing

hearing regarding the new charges. The state recited that the parties had

reached a plea agreement that provided appellant would serve three years in

prison for the community control violation to be served consecutively to a

three-year sentence on the new burglary charge, to be served concurrently to

a sixty-day jail term on the new resisting arrest charge. Appellant’s counsel

indicated that the prosecutor accurately recited the plea agreement. The

court then sentenced appellant in accordance with the plea agreement. The

court further informed appellant that it would entertain a motion for judicial

release after appellant serves four years.

                                       II.

                                 Anders Brief

      {¶5} Appellant’s counsel has filed an Anders brief in this action.

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

493, counsel may ask permission to withdraw from a case when counsel has

conscientiously examined the record, can discern no meritorious claims for

appeal, and has determined the case to be wholly frivolous. Id. at 744; State

v. Adkins, Gallia App. No. 03CA27, 2004-Ohio-3627, at ¶8. Counsel’s
Lawrence App. No. 09CA33                                                        4


request to withdraw must be accompanied with a brief identifying anything

in the record that could arguably support the client’s appeal. Anders, 386

U.S. at 744; Adkins at ¶8. Further, counsel must provide the defendant with

a copy of the brief and allow sufficient time for the defendant to raise any

other issues, if the defendant chooses to do so. Id. Once counsel has

satisfied these requirements, the appellate court must conduct a full

examination of the trial court proceedings to determine if meritorious issues

exist. If the appellate court determines that the appeal is frivolous, it may

grant counsel’s request to withdraw and address the merits of the case

without affording the appellant the assistance of counsel. Id. If, however,

the court finds the existence of meritorious issues, it must afford the

appellant assistance of counsel before deciding the merits of the case.

Anders, 386 U.S. at 744; State v. Duran, Ross App. No. 06CA2919, 2007-

Ohio-2743, at ¶7.

      {¶6} In the current action, Appellant’s counsel concludes the appeal is

wholly frivolous and has asked permission to withdraw. Pursuant to Anders,

counsel has filed a brief raising one potential assignment of error for this

court to consider.

                                       III.

                           Potential Assignment of Error
Lawrence App. No. 09CA33                                                           5


      “The defendant/appellant, Brandon T. Stewart, may assert as an
       assignment of error, that, according to State v. Foster, 2006-
       Ohio-856, the trial court failed to conduct the requisite judicial
       fact finding prior to imposing sentences beyond the minimum,
       concurrent sentences dictated or mandated by the Ohio
       statutory sentencing scheme and a jury verdict alone, or as in
       this case, an admission to violation of community control
       sanctions and guilty pleas to a two (2) count Bill of
       Information. Stewart would assert that the Foster Court
       invalidated R.C. 2929.14(B)(2), (C) and (E)(4) as violative of
       the Federal Sixth Amendment Rights. These constitutionally
       infirm Code sections required impermissible judicial fact-
       finding in order to impose sentences beyond the minimum,
       concurrent sentences authorized by the jury verdict alone.”

                                      IV.

                                 ANALYSIS

      {¶7} We agree with appellant’s counsel that an appeal based upon the

trial court’s imposition of consecutive sentences would be wholly frivolous.

Appellant’s potential assignment of error asserts that the trial court failed to

comply with R.C.2929.14 prior to imposing consecutive sentences.

Appellant contends that the statute requires the trial court to enter certain

findings before imposing a consecutive sentence. However, the Ohio

Supreme Court has flatly rejected this argument. See State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the

syllabus. Sentencing courts are “no longer required to make findings or give

their reasons for imposing maximum, consecutive, or more than the

minimum sentences.” Id. “Foster’s result was to sever the portions of the
Lawrence App. No. 09CA33                                                                                      6


statute that required judicial fact-finding to warrant a sentence beyond the

minimum term * * *.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, at ¶11. Thus, a court need not “provide any reasons in

imposing its sentence.” Id. at ¶12. As the Kalish court explained:

                “[W]hen imposing consecutive sentences prior to Foster,
         the trial court had to find that the sentence was necessary to
         protect the public and was not disproportionate to the
         seriousness of the offense and the danger the defendant posed to
         the public. R.C. 2929.14(E)(4). After Foster, a trial court can
         simply impose consecutive sentences, and no reason need be
         stated. Thus, a record after Foster may be silent as to the
         judicial findings that appellate courts were originally meant to
         review under R.C. 2953.08(G)(2).”

Id.

         {¶8} Our independent review of the record reveals no meritorious

issues for appeal.2 Accordingly, we hereby grant counsel’s motion to

withdraw and affirm the trial court’s judgment.

                                                                 JUDGMENT AFFIRMED.




2
  We observe at the sentencing hearing the trial court advised appellant that it would entertain a motion for
judicial release after appellant serves four years. However, it does not appear that appellant would be
eligible to file a motion for judicial release until he serves at least five years. The trial court sentenced
appellant to two, three-year prison terms to be served consecutively, for a total of six years. Six years is his
“stated prison term.” See R.C. 2929.01(FF). R.C. 2929.20(C)(3) does not permit an offender with a six-
year stated prison term to file a motion for judicial release until the offender serves at least five years.
Because the trial court’s statement regarding judicial release appears gratuitous and did not induce
appellant to plead guilty (as it occurred during sentencing and after appellant had entered his guilty pleas),
we have determined that the court’s apparent misstatement would not provide a meritorious ground for
appeal.
Lawrence App. No. 09CA33                                                        7




                           JUDGMENT ENTRY
     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Harsha, J. and Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland
                                            Presiding Judge
Lawrence App. No. 09CA33                                             8


                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
