[Cite as State v. Smith, 2020-Ohio-2854.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case Nos. 28208, 28209,
                                                 :   28210, 28211
 v.                                              :
                                                 :   Trial Court Case Nos. 2017-CR-1181,
 STORM SMITH                                     :   2016-CR-434, 2016-CR-529, 2018-
                                                 :   CR-3475
         Defendant-Appellant                     :
                                                 :   (Criminal Appeal from
                                                     Common Pleas Court)

                                            ...........

                                            OPINION

                               Rendered on the 8th day of May, 2020.

                                            ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419
    Attorney for Defendant-Appellant

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

TUCKER, P.J.
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       {¶ 1} Appellant Storm Smith’s appointed 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 he could not find any potentially meritorious appellate issues. Following an

independent review of the record, we agree with this assessment.                As such, the

judgments of the Montgomery County Common Pleas Court will be affirmed.

                              Facts and Procedural History

       {¶ 2} In five separate indictments, Smith was indicted by the Montgomery County

Grand Jury as follows: Montgomery C.P. No. 2015-CR-636 (which, on appeal, was

assigned Montgomery App. No. 28207), Montgomery C.P. No. 2016-CR-434 (which, on

appeal, was assigned Montgomery App. No. 28209), Montgomery C.P. No. 2016-CR-529

(which, on appeal, was assigned Montgomery App. No. 28210), Montgomery C.P. No.

2017-CR-1181 (which, on appeal, was assigned Montgomery App. No. 28208), and

Montgomery C.P. No. 2018-CR-3475 (which, on appeal, was assigned Montgomery App.

No. 28211). Case No. 2015-CR-636 indicted Smith for possession of heroin, a third-

degree felony, possession of cocaine, a fifth-degree felony, aggravated possession of

drugs, a fifth-degree felony, and possession of drugs, a first-degree misdemeanor.

Following a jury trial in this case, Smith was convicted on all counts and sentenced to an

aggregate 36-month prison term.

       {¶ 3} In Case No. 2016-CR-529, Smith filed a motion to suppress evidence, which

was denied.

       {¶ 4} Following Smith’s conviction in Case No. 2015-CR-636, the parties reached

a plea agreement regarding the remaining cases as follows: in Case No. 2016-CR-434,

Smith pleaded guilty to failure to comply with an order or signal of a police officer, a third-
                                                                                          -3-


degree felony. In Case No. 2016-CR-529, he pleaded guilty to trafficking in cocaine, a

third-degree felony. In Case No. 2017-CR-1181, he pleaded guilty to possession of

cocaine, a fifth-degree felony, and in Case No. 2018-CR-3475, he pleaded guilty to

aggravated possession of drugs, a fifth-degree felony. The parties agreed that Smith’s

prison sentences on these cases would, in total, be a concurrent three-year sentence to

be served concurrently to the three-year prison sentence in Case No. 2015-CR-636,

resulting, for all cases, in a three-year prison term. Immediately after accepting the guilty

pleas, the trial court sentenced Smith in accordance with the plea agreement. Smith

appealed each case, and this court consolidated the cases for appeal.

       {¶ 5} Smith’s initial appellate brief asserted arguments only in Case No. 2015-CR-

636 (Montgomery App. No. 28207), the case in which she was convicted following a jury

trial. The brief stated in a footnote “that [as to the other cases] no meritorious argument

would be forthcoming.”      In response, we filed a Decision and Entry ordering that

Montgomery App. No. 28207 “proceed * * * on the merits[,]” but with respect to the other

four cases, “which remain[ed] consolidated, * * * counsel [was instructed] to file a brief in

accordance with Anders * * *.” 1 Counsel complied with this instruction. Smith was

informed of the Anders brief and of his right to file a pro se brief within 60 days of the

Anders notice. Smith has not filed a brief.

                                    Anders Standard

       {¶ 6} Upon the filing of an Anders brief, an appellate court has a duty to determine,

“after a full examination of the proceedings,” whether the appeal is, in fact, “wholly



1
 Smith’s conviction in Case No. 2015-CR-636 was affirmed in an opinion filed on October
19, 2019. State v. Smith, 2d Dist. Montgomery No. 28207, 2019-Ohio-4373.
                                                                                          -4-


frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488

U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based

upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d

Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one

about which, “on the facts and law involved, no responsible contention can be made that

offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-

Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders

brief and appoint new counsel to represent the defendant.

                                     Anders Analysis

       {¶ 7} Consistent with his duties under Anders, counsel has suggested the following

assignments of error: (1) that Smith did not enter the pleas in a knowing, intelligent, and

voluntary fashion; (2) that Smith’s sentence is contrary to law; and (3) that the trial court

erred when it overruled Smith’s motion to suppress in Case No. 2016-CR-529. We agree

with counsel’s assessment that pursuing these potential assignments of error would be

wholly frivolous.

       {¶ 8} R.C. 2953.08(D)(1) provides that “[a] sentence imposed upon a defendant is

not subject to [appellate] review * * * if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution * * *, and is imposed by the

sentencing judge. If all three conditions are met, the defendant may not appeal the

sentence.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,

¶ 16. Smith and the prosecution jointly recommended the sentence, and the trial court

imposed the recommended three-year concurrent prison term. The “authorized by law”

condition is a bit more nuanced, with a sentence being so authorized “only if it comports
                                                                                           -5-


with all mandatory sentencing provisions.” Id. at paragraph two of the syllabus. Such

mandatory provisions include the proper imposition of postrelease control (PRC), making,

when applicable, the findings required for the imposition of consecutive sentences, and

ordering the merger of allied offenses of similar import. Id. at ¶ 20, 33.

       {¶ 9} Our independent review confirms that Smith’s sentence is authorized by law.

Smith’s guilty pleas do not raise any merger issue. As to each charge, the trial court

correctly informed Smith of the maximum sentence that could have been imposed, absent

the parties’ agreement, and the potential and mandatory fines.          The trial court also

correctly informed Smith of the mandatory and potential PRC implications, and the

judgment entries accurately reflect this discussion. In addition, as to the second-degree

felony trafficking in heroin charge, the trial court informed Smith that this offense required

the imposition of a mandatory prison term. Further, as to the failure to comply charge,

the trial court informed Smith that this offense required the imposition of a mandatory

driver’s license suspension. Finally, as to the drug counts, the trial court informed Smith

of a possibility of a driver’s license suspension. 2     Thus, Smith’s sentence was not

appealable under R.C. 2953.08(D)(1), and any appellate argument suggesting the

sentence is contrary to law would be wholly frivolous.

       {¶ 10} The second proposed assignment of error relates to the trial court’s decision

overruling a motion to suppress in Case No. 2016-CR-529. Smith’s guilty plea in that

case “waives [her] ability to challenge the suppression ruling on appeal.” State v. Barron,

2d Dist. Greene No. 2017-CA-46, 2018-Ohio-1221, ¶ 5, citing State v. Guerry, 2d Dist.


2
 The trial court found Smith indigent, and, on this basis, did not impose any mandatory
or discretionary fines. The trial court only imposed the mandatory license suspension
associated with the failure to comply charge.
                                                                                        -6-


Clark No. 2015-CA-30, 2016-Ohio-962, ¶ 5, citing State v. Carsen, 2d Dist. Montgomery

No. 20285, 2004-Ohio-5809, ¶ 8. Given this, any appellate argument attacking the trial

court’s suppression decision would be wholly frivolous.

       {¶ 11} Finally, turning to the third proposed assignment of error, any argument that

Smith did not enter the guilty pleas in a knowing, intelligent, and voluntary manner would

also be without potential appellate merit. Due process requires that a defendant’s guilty

plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274 (1969); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶ 25.      Compliance with Crim.R. 11(C) insures compliance with this

constitutional mandate.     State v. Cole, 2d Dist. Montgomery No. 26122, 2015-Ohio-

3793, ¶ 12. The trial court strictly complied with the Crim.R. 11(C) requirements when

taking Smith’s guilty pleas. Based upon this compliance, any argument that Smith’s

guilty pleas were less than knowing, intelligent, and voluntary would be without potential

appellate merit.

                                       Conclusion

       {¶ 12} We have found no non-frivolous issues for appellate review. Counsel’s

request to withdraw is granted, and the judgments of the Montgomery County Common

Pleas Court are affirmed.



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



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


Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Carlo C. McGinnis
Storm Smith
Hon. Mary Lynn Wiseman
