[Cite as State v. Ervin, 2019-Ohio-1020.]




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

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2018-CA-17
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-71
                                                  :
 CAMILLE YVETTE ERVIN                             :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 22nd day of March, 2019.

                                             ...........

KEVIN TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor, 200 North Main
Street, Urbana, Ohio 43078
       Attorney for Plaintiff-Appellee

SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                            .............
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TUCKER, J.



        {¶ 1} 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). This filing triggered our independent review

to determine whether non-frivolous appellate issues are present. This review has not

revealed any non-frivolous issues.       Accordingly, the trial court’s judgment will be

affirmed.



                              Facts and Procedural History

        {¶ 2} Appellant, Camille Ervin, was indicted on the following counts: (1) Petty Theft

in violation of R.C. 2913.02, a first degree misdemeanor; (2) Attempted Tampering With

Evidence in violation of R.C. 2923.02 and R.C. 2921.12, a fourth degree felony; (3)

Falsification in violation of R.C. 2921.13, a first degree misdemeanor; (4) Escape in

violation of R.C. 2921.34, a fifth degree felony; (5) Possession of Cocaine in violation of

R.C. 2925.11, a fifth degree felony; (6) Possession of Drug Paraphernalia in violation of

R.C. 2925.14, a fourth degree misdemeanor; and (7) Petty Theft in violation of R.C.

2913.02, a first degree misdemeanor. Counts 1-6 involved an incident which occurred

on March 13, 2018. Count 7 involved a separate incident which occurred in December

2017.

        {¶ 3} Ervin, following consultation with counsel and negotiations, pleaded guilty to

Count 4 (Escape), Count 5 (Possession of Cocaine), and Count 7 (Petty Theft). The

remaining counts were dismissed, the State recommended the preparation of a pre-

sentence investigation (PSI), and the State agreed to recommend that Ervin, assuming
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the PSI did not reveal a further criminal history, be sentenced to a term of community

control sanctions (CCS). A PSI was ordered and a sentencing hearing was scheduled.

       {¶ 4} The trial court sentenced Ervin to ten months in prison on the Escape count,

ten months in prison on the Possession of Cocaine count, and six months incarceration

on the Petty Theft count. The court ordered that the Escape and Possession of Cocaine

sentences be served consecutively but that the Petty Theft sentence be served

concurrently. This appeal follows, with Ervin having been appointed appellate counsel.

       {¶ 5} Counsel filed an Anders brief stating that he could find no non-frivolous

issues for appellate review. He further requested leave to withdraw as Ervin’s counsel.

Ervin was informed of the Anders filing. She was further informed that she had a right to

file a pro se brief within 60 days of the Anders notice. Ervin has not filed a brief.



                                    Anders Standard

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

“after a full examination of the proceedings,” whether the appeal is “wholly frivolous.”

Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988). A potential issue is not frivolous merely because

the State has a strong argument in response. State v. Pullen, 2d Dist. Montgomery No.

19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one for which, “on the facts

and law involved, no responsible contention can be made that it offers a basis for

reversal.” State v. Mayberry, 2d Dist. Montgomery No. 27530, 2018-Ohio-2220, ¶ 5. If

we find that any issue is not wholly frivolous, we must reject the Anders brief and appoint

new counsel to represent the defendant-appellant.
                                                                                          -4-




                                     Anders Review

       {¶ 7} Counsel, consistent with his duties under Anders, suggests as possible

assignments of error that the trial court did not adequately comply with Crim.R. 11 when

taking Ervin’s guilty plea, and that there is clear and convincing evidence that Ervin’s

sentence is not supported by the record.         Counsel, however, concluded that any

argument concerning either issue would be wholly frivolous.          We, based upon our

independent review, agree.

       {¶ 8} We have carefully reviewed the transcript of the plea hearing. This review

has failed to reveal any potentially meritorious appellate argument regarding the trial

court’s compliance with Crim.R. 11. The trial court, consistent with Crim.R. 11(C)(2)(a),

determined that Ervin was entering the plea voluntarily and that she understood the

nature of the charges and the involved maximum penalties. The trial court, as required

by Crim.R. 11(C)(3)(b), informed Ervin that she was eligible to be sentenced to a term of

CCS, but that the court, despite the felony offenses being of the fifth degree variety, could

impose a prison term because the offenses were committed while she was on bond in

another case.     The trial court additionally informed Ervin, again under Crim.R.

11(C)(2)(b), that any prison term could include consecutive sentences, and that any

prison term could be followed by three years of post-release control. The court also

informed Ervin that it could proceed to sentencing and judgment immediately, but that

sentencing would be deferred to allow the completion and consideration of a PSI. The

trial court, in strict compliance with Crim.R. 11(C)(2)(c), informed Ervin of the

constitutional rights she was relinquishing by entering a guilty plea. Ervin indicated that
                                                                                             -5-


she understood each discussed constitutional right, and that by entering a guilty plea this

right was being waived. In short, our review reveals that the trial court fully complied with

Crim.R. 11, and there is nothing in the record to suggest that Ervin did not understand the

plea or that her guilty plea was anything but knowing.

       {¶ 9} We also agree with counsel that any argument regarding Ervin’s sentence is

without arguable merit. With respect to the ten-month prison terms for each fifth degree

felony, the trial court had “full discretion” to impose any sentence that was within the

statutory range, and the court had no obligation to explain the sentence. State v. Poling,

2d Dist. Montgomery No. 27882, 2018-Ohio-4630, ¶ 6, quoting State v. King, 2013-Ohio-

2021, 993 N.E.2d 491, ¶ 45 (2d Dist.). An appellate court may vacate or modify a felony

sentence only if it determines by clear and convincing evidence that the sentence, under

the relevant statutory provisions, is not supported by the record, or that the sentence is

otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.2d 1231, ¶ 1; see also R.C. 2953.08. A “sentence is not contrary to law [if it falls]

within the statutory range [and the trial court expressly] state[s] that it * * * considered the

purposes and principles of sentencing [under] R.C. 2929.11 [and] R.C. 2929.12.”

(Citation omitted.) State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d Dist.).

Ervin’s ten-month sentences are within the allowed statutory range (6-12 months) for a

fifth degree felony, and the trial court engaged in a discussion concerning its conclusions

under R.C. 2929.11 and R.C. 2929.12. There is, given this, no potentially meritorious

appellate argument that it could be found by clear and convincing evidence that the ten-

month prison terms are not supported by the record or are contrary to law.

       {¶ 10} The final sentencing issue involves the trial court’s imposition of a
                                                                                        -6-


consecutive sentence. A trial court may impose a consecutive sentence if it makes the

findings required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporates these

findings into the sentencing entry. A trial court, however, has no obligation to articulate

its reasons for imposing consecutive sentences. State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 17. An appellate court’s review of a consecutive

sentence is conducted under the very deferential standard already discussed. The trial

court made the R.C. 2929.14(C)(4)(a) findings and they were incorporated into the

sentencing entry. Ervin committed the offenses at issue while on bond in another case.

Further, her criminal history was lengthy and included seven previous theft convictions

and a previous falsification conviction. Given these circumstances, any argument that

an appellate court could clearly and convincingly find that the consecutive sentencing

findings were not supported by the record would be wholly frivolous.

      {¶ 11} In addition, we have reviewed the entire record, including the PSI and the

plea and sentencing entries. This review has not revealed any potentially meritorious

appellate issues.



                                       Conclusion

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

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

Pleas Court is affirmed.

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



WELBAUM, P.J. and HALL, J., concur.
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Copies sent to:

Kevin Talebi
Sean Brinkman
Camille Yvette Ervin
Hon. Nick A. Selvaggio
