[Cite as State v. Martin, 2015-Ohio-5014.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   C.A. CASE NOS. 2014-CA-76 and
                                                   :   2014-CA-77
 v.                                                :
                                                   :   T.C. NO. 14CR126 and 14CR260
 DONTRAE MARTIN                                    :
                                                   :   (Criminal appeal from
         Defendant-Appellant                       :    Common Pleas Court)
                                                   :

                                              ...........

                                             OPINION

                Rendered on the ___4th___ day of ____December ___, 2015.

                                              ...........

RYAN A. SAUNDERS, Atty, Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

JENNIFER D. BRUMBY, Atty. Reg. No. 0076440, Fifth Third Center, 1 S. Main Street,
Suite 1800, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

DONTRAE MARTIN, Inmate #707061, Madison Correctional Institution, P. O. Box 740,
London, Ohio 43140
     Defendant-Appellant

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

DONOVAN, J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Dontrae Martin,

filed July 3, 2014, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
                                                                                          -2-


L.Ed.2d 493 (1976).

       {¶ 2} Martin was indicted, on February 18, 2014, in Case No. 2014 CR 126, on

one count of trafficking in heroin (less than one gram), in violation of R.C. 2925.03(A)(2);

two counts of possession of heroin (less than one gram), in violation of R.C. 2925.11(A);

and one count of illegal conveyance of weapons or prohibited items onto the grounds of

a specified governmental facility, in violation of R.C. 2921.36(A)(2). Counts one through

three contained a forfeiture specification that $3301.00 was seized from Martin’s person.

On March 5, 2014, Martin filed a motion to suppress in Case No. 2014 CR 126.

       {¶ 3} On April 14, 2014, in Case No. 2014 CR 260, Martin was indicted on one

count of trafficking in heroin (greater than or equal to ten grams but less than fifty grams,

in the vicinity of a school specification); one count of possession of heroin (greater than

or equal to ten grams but less than fifty grams); one count of aggravated trafficking in

drugs (greater than or equal to bulk amount but less than five times bulk amount, in the

vicinity of a school specification), in violation of R.C. 2925.03(A)(2); one count of

aggravated possession of drugs (greater than or equal to the bulk amount but less than

five times the bulk amount), in violation of R.C. 2925.11(A); one count of aggravated

trafficking in drugs (less than the bulk amount, in the vicinity of a school specification);

one count of aggravated possession of drugs (less than the bulk amount); one count of

trafficking in heroin (less than one gram); one count of possession of heroin (less than

one gram); and one count of tampering with evidence, in violation of R.C. 2921.12(A).

Counts one through nine contained a forfeiture specification that $3500.00 was seized

from 1303 Tibbetts Avenue on March 25, 2014.

       {¶ 4} On May 8, 2014, at a hearing scheduled for the motion to suppress in Case
                                                                                         -3-


No. 2014 CR 0126, counsel for Martin advised the court that he had just learned of the

second indictment and asked to “continue this hearing to a later date to see if we can

work out a package deal and give the State an opportunity to decide whether or not it’s

going to file additional motions.” The court continued the hearing.

       {¶ 5} On May 21, 22014, the State filed a motion to consolidate the two cases,

which the trial court granted. On June 10, 2014, as part of a negotiated plea agreement,

Martin withdrew his previous pleas of not guilty to all counts and pled guilty to one count

of possession of heroin in Case No. 2014 CR 0126, a felony of the fifth degree, and to

one count of possession of heroin in Case No. 2014 CR 0260, a felony of the second

degree.   The remaining counts were dismissed, Martin agreed to the forfeitures of

$3,301.00 and $3,500.00 in each case, he withdrew his motion to suppress, and the

prosecutor agreed to remain silent at sentencing. The court ordered a pre-sentence

investigation. On June 24, 2014, Martin was sentenced to twelve months for the fifth

degree felony, and to seven years for the second degree felony, and the court ordered

that the sentences be served consecutively.

       {¶ 6} Counsel for Martin asserts that she “reviewed the original court file, as well

as the transcript of proceedings prepared in this case, and can find no error by the trial

court prejudicial to the rights of Mr. Martin, which may be argued to this Court on appeal.”

This Court granted Martin ample time to file a pro se brief asserting any assignments of

error for our review, and none has been received.

       {¶ 7} In State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7-

8, this Court noted:

              We are charged by Anders to determine whether any issues
                                                                                        -4-


       involving potentially reversible error that are raised by appellate counsel or

       by a defendant in his pro se brief are “wholly frivolous.” [386 U.S. at 744,

       87 S.Ct. 1417, 18 L.Ed.2d 522.] If we find that any issue presented or which

       an independent analysis reveals is not wholly frivolous, we must appoint

       different appellate counsel to represent the defendant. State v. Pullen (Dec.

       6, 2002), Montgomery App. No. 19232 [2002-Ohio-6788].

              Anders equates a frivolous appeal with one that presents issues

       lacking in arguable merit. An issue does not lack arguable merit merely

       because the prosecution can be expected to present a strong argument in

       reply, or because it is uncertain whether a defendant will ultimately prevail

       on that issue on appeal. An issue lacks arguable merit if, on the facts and

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

       for reversal. Pullen, supra.

       {¶ 8} Counsel for Martin asserts three potential assignments of error. The first

potential assigned error is as follows:

              WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL

       RULE 11 IN ACCEPTING MR. MARTIN’S GUILTY PLEAS.

       {¶ 9} Crim.R. 11 provides in relevant part:

       (C) Pleas of guilty and no contest in felony cases

              ***

              (2) In felony cases the court may refuse to accept a plea of guilty or

       a plea of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the
                                                                                           -5-


       following:

              (a) Determining that the defendant is making the plea voluntarily, with

       understanding of the nature of the charges and of the maximum penalty

       involved, and if applicable, that the defendant is not eligible for probation or

       for the imposition of community control sanctions at the sentencing hearing.

              (b) Informing the defendant of and determining that the defendant

       understands the effect of the plea of guilty or no contest, and that the court,

       upon acceptance of the plea, may proceed with judgment and sentence.

              (c) Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to jury trial,

       to confront witnesses against him or her, to have compulsory process for

       obtaining witnesses in the defendant's favor, and to require the state to

       prove the defendant's guilt beyond a reasonable doubt at a trial at which the

       defendant cannot be compelled to testify against himself or herself.

       {¶ 10} Having thoroughly reviewed the transcript of Martin’s plea hearing, we

conclude, as counsel for Martin asserts, that the trial court complied with the requirements

of Crim.R. 11. After reviewing the negotiated plea agreement in detail as set forth above,

the court ascertained that Martin was satisfied with the advice and representation

provided by his attorney, and that he read and understood the plea forms he signed. The

court advised Martin of the maximum penalties for each offense, advised him that he was

subject to a mandatory sentence in Case No. 2014 CR 260, and advised him regarding

post-release control. The court advised Martin that a plea of guilty is an admission of guilt.

The court advised him of all of the rights he would waive by entering his pleas and
                                                                                           -6-


determined that Martin knowingly, voluntarily and intelligently waived his rights in entering

his pleas. For the foregoing reasons, we conclude that Martin’s first potential assignment

of error lacks arguable merit and is wholly frivolous.

       {¶ 11} Martin’s second potential assignment of error is as follows:

              WHETHER MR. MARTIN’S TRIAL COUNSEL WAS INEFFECTIVE

       IN WITHDRAWING HIS MOTION TO SUPPRESS?

       {¶ 12} As this court has previously noted:

              “We review the alleged instances of ineffective assistance of trial

       counsel under the two prong analysis set forth in Strickland v. Washington,

       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the

       Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538

       N.E.2d 373, * * *. Pursuant to those cases, trial counsel is entitled to a strong

       presumption that his or her conduct falls within the wide range of reasonable

       assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on

       ineffective assistance of counsel, it must be demonstrated that trial

       counsel's conduct fell below an objective standard of reasonableness and

       that his errors were serious enough to create a reasonable probability that,

       but for the errors, the result of the trial would have been different. Id.

       Hindsight is not permitted to distort the assessment of what was reasonable

       in light of counsel's perspective at the time, and a debatable decision

       concerning trial strategy cannot form the basis of a finding of ineffective

       assistance of counsel.” (Internal citation omitted). State v. Mitchell, 2d Dist.

       Montgomery No. 21957, 2008–Ohio–493, ¶ 31.
                                                                                       -7-

State v. Saini, 2d Dist. Greene No. 2013 CA 36, 2014-Ohio-5582, ¶ 47.

      {¶ 13} “A guilty plea waives the right to allege ineffective assistance of counsel,

except to the extent that the errors caused the plea to be less than knowing and

voluntary.” State v. Webb, 2d Dist. Montgomery No. 26198, 2015-Ohio-553, ¶ 15.

      {¶ 14} We initially note that Martin’s motion to suppress, in Case No. 2014 CR

126, was filed prior to the subsequent indictment containing an additional nine counts in

Case No. 2014 CR 260; pursuant to the plea agreement, three counts were dismissed in

Case No. 2014 CR 126, and eight counts were dismissed in Case No. 2014 CR 260.

Martin advised the Court that he was satisfied with his counsel’s representation, and as

we concluded above, Martin’s pleas were knowing and voluntary. Accordingly, Martin’s

second potential assigned error lacks arguable merit.

      {¶ 15} Martin’s third potential assignment of error is as follows:

             WHETHER        THE     TRIAL    COURT        ERRED    IN      IMPOSING

      CONSECUTIVE SENTENCES.

      {¶ 16} R.C. 2929.14(C) provides:

             ***

             (4)   If multiple prison terms are imposed on an offender for

      convictions of multiple offenses, the court may require the offender to serve

      the prison terms consecutively if the court finds that the consecutive service

      is necessary to protect the public from future crime or to punish the offender

      and that consecutive sentences are not disproportionate to the seriousness

      of the offender’s conduct and to the danger the offender poses to the public,

      and if the court also finds any of the following:
                                                                                    -8-


       (a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶ 17} As this Court has previously noted:

       We have addressed our role in reviewing sentencing orders by

recognizing that we would no longer use an abuse-of-discretion standard in

reviewing a felony sentence, but would apply “the standard of review set

forth in R.C. 2953.08(G)(2) .” State v. Rodeffer, 2013–Ohio–5759, 5 N.E.3d

1069, ¶ 29 (2d Dist.) “Under this statute, an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand

for resentencing, only if it ‘clearly and convincingly’ finds either (1) that the

record does not support certain specified findings or (2) that the sentence

imposed is contrary to law.” State v. Battle, 2d Dist Clark No. 2014CA5,

2014–Ohio–4502, ¶ 7. We have acknowledged that this is an “extremely
                                                                                        -9-

      deferential standard of review.” Rodeffer at ¶ 31. See also State v.

      Hammad, [2d Dist.] Montgomery No. 26110, 2015–Ohio–622, ¶ 29; State

      v. McGlothan, 2d Dist. Clark Nos. 2014–CA–120, 2014–CA–121, 2014–

      CA–122, 2015–Ohio–2713, ¶ 12. We also note that because R.C.

      2929.41(A) creates a presumption in favor of concurrent sentences for most

      felony sentences, our review of the record must determine whether the

      presumption was overcome by the trial court's findings set forth in R.C.

      2929.14(C)(4). State v. Hatfield, 5th Dist. Muskingum No. CT2014–CA–

      00052, 2015–Ohio–2846, ¶ 9.

State v. Kay, 2d Dist. Montgomery No. 26344, 2015-Ohio-4403, ¶ 15.

      {¶ 18} In sentencing Martin, the court noted as follows:

              In reviewing the information contained in the presentence report and

      the facts of the case as presented at the time of the plea, determining factors

      which are apparent under 2929.12 and .13 to meet the principles and

      sentencing guidelines of 2929.11 and 2929.13, the court has found the

      following:    The Defendant committed the offense, particularly the

      possession of the large amount of heroin, as part of an organized criminal

      activity.

              There is the factor of whether or not the Defendant caused or

      expected to cause physical harm to persons or property. I find it difficult to

      imagine somebody dealing with, being involved with this much heroin with

      the news that it’s everywhere in our society about the results of the use of

      heroin, including the increase in the number of deaths caused by overdose
                                                                                -10-


of this drug, which you can’t have some expectations of causing physical

harm to persons.

      Regarding both of the cases, the Defendant at the time he committed

the offense was on post-release control for an earlier offense.

      As to Case 14-CR-0260, the Defendant was out on bail awaiting trial

in Case 14-CR-0126 when he committed that offense.

      He does have a history of criminal convictions.             He has not

responded favorably to sanctions previously imposed; and based upon the

statements that the Defendant made in the presentence report, I find no

genuine remorse for the offenses.

      As to recidivism, the Defendant has not been adjudicated a

delinquent child in the past.   The Defendant does not have a military

service record to consider.     He scored very high on the Ohio Risk

Assessment survey.

      Case 14-CR-0126 is a felony of the fifth degree; however, the

mandatory community control under 2929.13 does not apply because of the

prior felony convictions. 14-CR-0260 is a felony of the second degree. It

does carry a mandatory sentence.

      As indicated in the Defendant’s criminal history, there are two prior

convictions for trafficking in drugs, three prior convictions for possession,

prior convictions for felonious assault.     In five of those cases, the

Defendant was given a prison sentence; and the Court does note that the

felonious assault and aggravated possession of drugs in 2004 happened at
                                                                                         -11-


       about the same time as was the possession of crack cocaine. Defendant

       having been placed on community control in 1999, the Court notes as to

       financial sanctions imposed in all of these cases, it appears the Defendant

       did not pay any of those financial sanctions, at least did not pay any of them

       in full.

       {¶ 19} After imposing sentence in each case, the court noted as follows:

                  It’s further the order of the Court that these sentences in Case 14-

       CR-0126 and 14-CR-0260 be served consecutively.               The Court finds

       consecutive service is necessary to protect the public from future crime and

       to punish the offender, and consecutive sentences are not disproportionate

       to the seriousness of the Defendant’s conduct and to the danger it poses to

       the public. The Court also finds the Defendant committed one or more

       offenses while awaiting trial for sentencing and was under post-release

       control for a prior offense. Further, the Defendant’s history of criminal

       conduct demonstrates consecutive sentences are necessary to protect the

       public from future crime by the Defendant.

       {¶ 20} Martin’s judgment entries of conviction in both cases further reflect that the

court made the necessary findings to impose consecutive sentences. Accordingly, we

conclude that Martin’s third potential assignment of error lacks merit.

       {¶ 21} Having reviewed the entire record pursuant to our obligation under Anders,

we conclude that Martin’s appeal is wholly frivolous. The judgment of the trial court is

affirmed.

                                          ..........
                                    -12-


FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Ryan A. Saunders
Jennifer D. Brumby
Dontrae Martin
Hon. Richard J. O’Neill
