[Cite as Toledo v. Wells, 2014-Ohio-4636.]




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


City of Toledo                                   Court of Appeals No. L-13-1272

        Appellee                                 Trial Court No. CRB-13-12551

v.

Patrice L. Wells                                 DECISION AND JUDGMENT

        Appellant                                Decided: October 17, 2014

                                             *****

        Tim A. Dugan, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal brought by appellant, Patrice L. Wells, from the judgment

of the Toledo Municipal Court which found him guilty of a violation of Toledo

Municipal Code Section 537.20(A), violation of a temporary protection order. The

appellant was then sentenced to serve a sentence of 180 days incarceration.
       {¶ 2} Appointed counsel has filed a brief and requested leave to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967). Under Anders, if, after a conscientious examination of the case, counsel

concludes the appeal to be wholly frivolous, he should so advise the court and request

permission to withdraw. Id. at 744. This request must be accompanied by a brief

identifying anything in the record that could arguably support the appeal. Id. In addition,

counsel must provide appellant with a copy of the brief and request to withdraw, and

allow appellant sufficient time to raise any additional matters. Id. Once these

requirements are satisfied, the appellate court is required to conduct an independent

examination of the proceedings below to determine if the appeal is indeed frivolous. Id.

If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the

appeal without violating any constitutional requirements. Id.

       {¶ 3} The appellee, city of Toledo, did not file a responsive brief nor did it oppose

the motion of counsel to withdraw.

       {¶ 4} In this case, appellant’s appointed counsel has satisfied the requirements set

forth in Anders, supra. This court further notes that appellant did not file a pro se brief in

this matter.

       {¶ 5} Accordingly, this court shall proceed with an examination of the potential

assignments of error set forth by counsel. We have reviewed the entire record from

below to determine if this appeal lacks merit and is, therefore, wholly frivolous.




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       {¶ 6} Counsel refers to several possible, but ultimately untenable, issues: (1) the

appellant’s conviction fell against the manifest weight of the evidence and (2) the trial

court erred by not informing the appellant that if he did not pay court costs, he could be

ordered to perform community service hours in lieu of costs.

       {¶ 7} A manifest weight challenge questions whether the state has met its burden

of persuasion. State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-Ohio-1394, ¶ 17,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In making

this determination, the court of appeals sits as a “thirteenth juror” and, after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether, in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” Thompkins, supra, at 386.

       {¶ 8} Appellant was convicted of violating Toledo Municipal Code Section

537.20, violation of a temporary protection order. That section states in pertinent part:

              537.20. Temporary protection order.

              ***

              (b) No person shall recklessly violate the terms of any of the

       following:

              (1) A protection order issued or consent agreement approved

       pursuant to Ohio R.C. 2919.26 or 3113.31 or Toledo Municipal Code

       537.19;




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              (2) A protection order issued by a court of another state.

              (c) No person shall recklessly enter or remain on the land or

       premises which is the subject of a temporary protection order, issued

       pursuant to Ohio R.C. 2919.26 or 3113.13 or Toledo Municipal Code

       537.19 when such temporary protection order excludes the person from

       said land or premises.

              (d) No person being on the land or the premises subject to a

       temporary protection order issued pursuant to Ohio R.C. 2919.26 or

       3113.31 or Toledo Municipal Code 537.19, shall negligently fail or refuse

       to leave such premises upon being notified that the protection order

       excludes such person from land or premises.

              (e) Whoever violates this section is guilty of violation of a temporary

       protection order, a misdemeanor of the first degree.

       {¶ 9} The record and testimony establishes that the Lucas County Common Pleas

Court issued a civil stalking protection order against appellant on April 4, 2013. The

record further demonstrates that appellant was present before the court when the order

was issued and that he waived a right to a full hearing on the petition for the civil stalking

protection order.

       {¶ 10} That order states in pertinent part:

              5. RESPONDENT SHALL STAY AWAY from protected persons

       named in this order, and shall not be present within 100 feet or 1 block




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       (distance) of protected persons, wherever protected persons may be found

       * * *.

       {¶ 11} The record further establishes that appellant testified that he was, in fact, on

the sidewalk of the victim’s residence on July 23, 2013, ostensibly to discuss child

support with the victim and that he did so with full knowledge of the terms of the

protection order.

       {¶ 12} This court has reviewed the applicable law as well as the trial court record,

including the oral testimony of the trial. Upon due consideration, we find that the record

contains sufficient evidence to support appellant’s conviction of violation of a temporary

protection order. In addition, we find, after reviewing the entire record and weighing the

evidence and all reasonable inferences, that the trier of fact did not lose its way in

reaching its verdicts.

       {¶ 13} Therefore, this potential assignment of error is without merit.

       {¶ 14} In considering the potential second assignment of error, we must look to

R.C. 2947.23(A) which states in pertinent part:

                (A)(1)(a) In all criminal cases, including violations of ordinances,

       the judge or magistrate shall include in the sentence the costs of

       prosecution, including any costs under section 2947.231 of the Revised

       Code, and render a judgment against the defendant for such costs. If the

       judge or magistrate imposes a community control sanction or other




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       nonresidential sanction, the judge or magistrate, when imposing the

       sanction, shall notify the defendant of both of the following:

              (i) If the defendant fails to pay that judgment or fails to timely make

       payments towards that judgment under a payment schedule approved by the

       court, the court may order the defendant to perform community service

       until the judgment is paid or until the court is satisfied that the defendant is

       in compliance with the approved payment schedule.

              (ii) If the court orders the defendant to perform the community

       service, the defendant will receive credit upon the judgment at the specified

       hourly credit rate per hour of community service performed, and each hour

       of community service performed will reduce the judgment by that amount.

       {¶ 15} To determine whether a term of actual incarceration is a nonresidential

sanction, R.C. 2929.27 is instructive where it states, in relevant part:

              2929.27 Nonresidential sanction where jail term not mandatory

              (A) Except when a mandatory jail term is required by law, the court

       imposing a sentence for a misdemeanor, other than a minor misdemeanor,

       may impose upon the offender any nonresidential sanction or combination

       of nonresidential sanctions authorized under this division. Nonresidential

       sanctions include, but are not limited to, the following:

              (1) A term of day reporting;




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                (2) A term of house arrest with electronic monitoring or continuous

         alcohol monitoring or both electronic monitoring and continuous alcohol

         monitoring, a term of electronic monitoring or continuous alcohol

         monitoring without house arrest, or a term of house arrest without

         electronic monitoring or continuous alcohol monitoring;

                (3) A term of community service of up to five hundred hours for a

         misdemeanor of the first degree or two hundred hours for a misdemeanor

         of the second, third, or fourth degree;

                (4) A term in a drug treatment program with a level of security for

         the offender as determined necessary by the court;

                (5) A term of intensive probation supervision;

                (6) A term of basic probation supervision;

                (7) A term of monitored time;

                (8) A term of drug and alcohol use monitoring, including random

         drug testing;

                (9) A curfew term;

                (10) A requirement that the offender obtain employment;

                (11) A requirement that the offender obtain education or training;

     {¶ 16} Thus, nonresidential sanctions, as defined by the sentencing statute, exclude a

term of actual incarceration. Appellant herein was sentenced to a period of actual




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incarceration. Therefore, the notification provisions are not relevant to the case before

the court and this argument is also wholly without merit.

                                         Conclusion

       {¶ 17} We have accordingly conducted an independent examination of the record

pursuant to Anders v. California and have found no error prejudicial to appellant’s rights

in the proceedings in the trial court. We conclude that this appeal is wholly frivolous.

The motion of counsel for appellant requesting to withdraw as counsel is granted.

       {¶ 18} The judgment of the Toledo Municipal Court is affirmed. Appellant is

ordered to pay the costs of this appeal pursuant to App. R. 24. The clerk is ordered to

serve all parties with notice of this decision.


                                                                        Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                                 _______________________________
                                                              JUDGE
Thomas J. Osowik, J.
                                                  _______________________________
Stephen A. Yarbrough, P.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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