[Cite as State v. Finley, 2012-Ohio-2661.]




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

STATE OF OHIO                                       :
                                                    :     Appellate Case No. 24411
        Plaintiff-Appellee                          :
                                                    :     Trial Court Case No. 2010-CR-226
v.                                                  :
                                                    :
MARK FINLEY                                         :     (Criminal Appeal from
                                                    :     (Common Pleas Court)
        Defendant-Appellant                  :
                                                    :
                                                 ...........

                                                 OPINION

                                Rendered on the 15th day of June, 2012.

                                                 ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHARLES W. MORRISON, Atty. Reg. #0084368, Morrison & Morrison, LLC, 31 West
Franklin Street, Dayton, Ohio 45459
       Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1}     Mark Finley appeals from the trial court’s judgment and sentencing entry filed

September 1, 2010, indicating that the defendant violated the conditions of his community

control and ordering him to serve four years in prison for his conviction on one count of
                                                                                          2


tampering with evidence, a third-degree felony.

       {¶ 2}    On January 23, 2012, Finley’s appointed appellate counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

asserting the absence of any non-frivolous issues for our review. The only potential issues

counsel identified concerned the trial court’s decision to revoke community control and its

decision to impose a four-year prison term. Counsel determined, however, that a challenge to

the revocation decision or the sentence would be wholly frivolous.

       {¶ 3}    With this court’s permission, Finley filed a pro se brief. It reads:

               The defendant-appellant have big promble [sic] with the evidence that

       was used against him to make a case.

               The probation department has falsefility [sic] statement and there is no

       evidence to show the defendant-appellant assignment of error in the table of

       contents.

               The information was giving [sic] by the probation department to the

       court, not showing a[n] arrest warrant or complain[t] against the

       defendant-appellant.

               The defendant-appellant was put on no-brea[k] status that means any

       violation of supervision will result in revocation.

               The defendant-appellant is requesting in this brrief [sic] that the

       Montgomery County probation department show cause by showing the

       appellate court a[n] arrest warrant or complain[t] that the defendant-appellant

       violation [sic] any probation rule under the Ohio RC.
                                                                                                                                 3


                    The defendant-appellant is requesting the appellate court to correst [sic]

         the errors of this evidence that was used against him.

                    [Probation officer] Mr. Hayes make [sic] statement against the

         defendant ultimately arrested for an allege[d] assault that took place on July 27,

         2010[.] [T]here is no evidence or arrest warrant to back up Mr. Hayes’

         statement or the probation department or the State of Ohio.

                    So the defendant-appellant is requesting for the appellate court to

         “(GRAND)” this brief respectfully.

         {¶ 4}       The record reflects that Finley pled guilty to one count of evidence tampering

pursuant to a plea agreement. The trial court placed him on community control for five years

with “no breaks” supervision. It explained that any violation of his supervision conditions

would result in revocation.

         {¶ 5}       Four months later, the trial court held a revocation hearing. Probation Officer

Brandon Hayes testified that Finley violated the conditions of his community control

supervision by (1) failing to contact his probation officer about his alleged assault of his

girlfriend, (2) failing to provide verification of employment,1 (3) testing positive for cocaine

and admitting cocaine use, (4) failing to attend CADAS treatment, and (5) failing to perform

community service. Hayes’ testimony includes factual support for the foregoing allegations.

The only other witness was Finley. He denied most of Hayes’ claims. He maintained that


           1
           The Notice of Revocation, filed August 4, 2010, indicates that the defendant “failed to provide verification of employment.” The
 judgment entry of conviction, filed April 30, 2010, includes a community control sanction of “Obtain and maintain verifiable employment.”
 The defendant does not argue that those are different conditions. His revocation-hearing testimony does not demonstrate compliance with
 either.
                                                                                              4


Hayes was lying and that he had been doing what he was supposed to do. Finley did admit,

however, that he had tested positive for cocaine.

           {¶ 6}   The trial court found Hayes credible and Finley not credible. It declined to

consider the allegation about Finley assaulting his girlfriend but found violations based on

Finley testing positive for cocaine, failing to attend CADAS treatment, failing to verify

employment, and failing to perform community service. The trial court declared Finley no

longer amenable to community control and imposed a four-year prison sentence. When

imposing this sentence, the trial court noted that he had served three prior prison terms for

convictions that included offenses of violence. The trial court also described Finley as being

“very aggressive and very angry” in court. Finally, the trial court noted that it had considered

the principles and purposes of sentencing as well as the statutory seriousness and recidivism

factors.

           {¶ 7}   Having reviewed the record, we agree with appointed appellate counsel that a

challenge to the trial court’s revocation decision or to the sentence imposed would be wholly

frivolous. The revocation decision is supported by the evidence, and the imposition of a

four-year prison sentence was within the trial court’s discretion. Contrary to the assertion in

Finley’s pro se brief, we see no potential issue with regard to the evidence in this case. Nor are

we persuaded by his argument about the lack of a warrant or complaint advising him of the

alleged violations. The record contains a written notice to Finley advising him of the alleged

violations and of the revocation hearing. He appeared at the hearing with counsel and

contested the allegations. The trial court acted within its discretion in rejecting his testimony

and crediting the testimony of his probation officer.
                                                                                      5




       {¶ 8}    Finally, pursuant to our responsibility under Anders, we have conducted an

independent review of the record. We agree with the assessment of appointed appellate

counsel that there are no non-frivolous issues for our review.

       {¶ 9}    The judgment of the Montgomery County Common Pleas Court is affirmed.

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

GRADY, P.J., and DONOVAN, J., concur.




Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Charles Morrison
Mark Finley
Hon. Mary K. Huffman
