[Cite as State v. Keller, 2012-Ohio-237.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      LAWRENCE COUNTY


STATE OF OHIO,                                   :
                                                 :
             Plaintiff-Appellee,                 :         Case No: 10CA39
                                                 :
             v.                                  :
                                                 :         DECISION AND
JAMES W. KELLER,                                 :         JUDGMENT ENTRY
                                                 :
             Defendant-Appellant.                :         Filed: January 12, 2012



                                            APPEARANCES:

Warren N. Morford, Jr., South Point, Ohio, for Appellant.

J.B. Collier, Jr., Lawrence County Prosecuting Attorney, Ironton, Ohio, for Appellee.


Kline, J.:

        {¶1}      James W. Keller (hereinafter “Keller”) appeals the judgment of the

Lawrence County Court of Common Pleas. After pleading guilty to five different crimes,

Keller was sentenced to a total combined prison term of six years. Keller’s appellate

counsel has advised this court that, after reviewing the record, he cannot find a

meritorious claim for appeal. As a result, Keller’s appellate counsel has moved to

withdraw under Anders v. California (1967), 386 U.S. 738. After independently

reviewing the record, we agree that Keller’s appeal is wholly frivolous. Accordingly, we

(1) grant counsel’s request to withdraw and (2) affirm the judgment of the trial court.

                                                 I.
Lawrence App. No. 10CA39                                                              2


       {¶2}   On September 1, 2010, a Lawrence County Grand Jury returned a five-

count indictment against Keller. After plea negotiations, Keller pled guilty to the

following crimes: (1) Burglary, a third-degree felony; (2) Theft of Drugs, a fourth-degree

felony; (3) Grand Theft, a fourth-degree felony; (4) Complicity to Grand Theft of a Motor

Vehicle, a fourth-degree felony; and (5) Illegal Use or Possession of Paraphernalia, a

fourth-degree misdemeanor.

       {¶3}   Keller received a total combined prison term of six years. The trial court

sentenced Keller to four years for Burglary, twelve months for Theft of Drugs, twelve

months for Grand Theft, six months for Complicity to Grand Theft of a Motor Vehicle,

and thirty days for Illegal Use or Possession of Paraphernalia. Keller was ordered to

serve the sentences for Burglary, Theft of Drugs, and Grand Theft consecutively to each

other -- a total of six years in prison. Keller’s will serve his remaining two sentences

concurrently to the six-year prison term.

                                             II.

       {¶4}   Although Keller has appealed his conviction, Keller’s appellate counsel

has filed both a motion to withdraw and an Anders brief. “In Anders, the United States

Supreme Court held that if counsel determines after a conscientious examination of the

record that the case is wholly frivolous, counsel should so advise the court and request

permission to withdraw. Id. at 744. Counsel must accompany the request with a brief

identifying anything in the record that could arguably support the appeal. Id. Counsel

also must furnish the client with a copy of the brief and request to withdraw and allow

the client sufficient time to raise any matters that the client chooses. Id. Once these

requirements have been satisfied, the appellate court must then fully examine the
Lawrence App. No. 10CA39                                                             3


proceedings below to determine if meritorious issues exist. Id. If the appellate court

determines that the appeal is frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements or may proceed to a

decision on the merits if state law so requires. Id. Alternatively, if the appellate court

concludes that any of the legal points are arguable on their merits, it must afford the

appellant the assistance of counsel to argue the appeal. Id.” State v. Wise, Lawrence

App. No. 08CA40, 2009-Ohio-5264, at ¶11. See, also, State v. Taylor, Montgomery

App. No. 23833, 2010-Ohio-4276, at ¶2 (stating that an appellant must be afforded

“time to file a pro se brief”).

       {¶5}    Upon receiving an Anders brief, we must “conduct ‘a full examination of all

the proceeding[s] to decide whether the case is wholly frivolous.’” Penson v. Ohio

(1988), 488 U.S. 75, 80, quoting Anders at 744. If we find only frivolous issues on

appeal, we may then proceed to address the case on its merits without affording

appellant the assistance of counsel. Penson at 80. However, if we conclude that there

are nonfrivolous issues for appeal, we must afford appellant the assistance of counsel

to address those issues. Anders at 744; Penson at 80; see, also, State v. Alexander

(Aug. 10, 1999), Lawrence App. No. 98CA29.

       {¶6}    Here, Keller’s counsel has satisfied the requirements of Anders. And

although Keller has not filed a pro se brief, Keller’s counsel has raised the following

potential assignment of error: “The appellant, James W. Keller, may assert as an

assignment of error, that the [trial court] abused its discretion upon sentencing the

appellant, James W. Keller[,] to consecutive and concurrent sentences rather than to

have the five (5) sentences run concurrently.” We will examine this potential
Lawrence App. No. 10CA39                                                                4


assignment of error -- and the entire record below -- to determine whether Keller’s

appeal lacks merit.

                                               III.

       {¶7}   Keller’s trial counsel asserts that the trial court might have erred by

ordering non-minimum, consecutive sentences. Instead, Keller’s trial counsel contends

that, perhaps, the trial court should have imposed a lesser prison term.

       {¶8}   “Appellate courts ‘apply a two-step approach [to review a sentence]. First,

[we] must examine the sentencing court’s compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall

be reviewed under an abuse-of-discretion standard.’” State v. Smith, Pickaway App.

No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, at ¶4 (alterations sic).

       {¶9}   Here, we find that Keller’s total combined six-year sentence is not clearly

and convincingly contrary to law. In analyzing whether Keller’s total combined sentence

is contrary to law, “[t]he only specific guideline is that the sentence must be within the

statutory range[.]” State v. Welch, Washington App. No. 08CA29, 2009-Ohio-2655, at

¶7 (internal quotation omitted).

       {¶10} Keller pled guilty to one third-degree felony and three fourth-degree

felonies. (Keller also pled guilty to a fourth-degree misdemeanor. However, because

Keller was ordered to serve his misdemeanor sentence concurrently to his felony

sentences, we need not consider Keller’s misdemeanor sentence in analyzing his

potential assignment of error.) “For a felony of the third degree, the prison term shall be
Lawrence App. No. 10CA39                                                             5


one, two, three, four, or five years.” R.C. 2929.14(A)(3). Furthermore, “[f]or a felony of

the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve,

thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.” R.C. 2929.14(A)(4).

Therefore, after being convicted of one third-degree felony and three fourth-degree

felonies, Keller could have received up to eight years in prison. Accordingly, Keller’s

six-year prison sentence falls within the statutory range.

       {¶11} Additionally, courts must consider the general guidance factors set forth in

R.C. 2929.11 and 2929.12. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at ¶42;

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶13. In imposing Keller’s sentence, the

trial court noted that it had “weighed the purposes and principles of sentencing in

O.R.C. 2929.11, the seriousness and recidivism factors in O.R.C. 2929.12, and

follow[ed] the guidance of O.R.C. 2929.13[.]” Judgment Entry at 2. Therefore, we find

that the trial court complied with all applicable rules and statutes in sentencing Keller.

And thus, we find that Keller’s sentence is not clearly and convincingly contrary to law.

       {¶12} Next, we address whether the trial court abused its discretion in imposing

Keller’s sentence. An abuse of discretion connotes more than a mere error of

judgment; it implies that the court’s attitude is arbitrary, unreasonable, or

unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. “In the sentencing

context, we review the trial court’s selection of the sentence within the permissible

statutory range.” Smith at ¶17, citing Kalish at ¶17.

       {¶13} Sentencing courts “have full discretion to impose a prison sentence within

the statutory range and are [not] required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences.” State v.
Lawrence App. No. 10CA39                                                            6


Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus; see, also,

Kalish at ¶11. Nevertheless, “courts must still consider the general guidance factors set

forth in R.C. 2929.11 and R.C. 2929.12.” State v. Voycik, Washington App. Nos.

08CA33 & 08CA34, 2009-Ohio-3669, at ¶14.

         {¶14} We find that the trial court did not abuse its discretion. Here, we have

found nothing in the record to support the notion that Keller’s sentence is unreasonably

harsh under the circumstances. Keller claims that his co-defendant received a lesser

sentence than he did. And for that reason, Keller argues that his own sentence is

unreasonable. However, the sentence imposed upon Keller’s co-defendant is not in the

record before us, and “our review is limited to the record transmitted on appeal.” State

v. Delong, Adams App. No. 05CA815, 2006-Ohio-2753, at ¶5.

         {¶15} Accordingly, we agree that Keller’s potential assignment of error is without

merit.

                                              IV.

         {¶16} In conclusion, we find no merit in Keller’s potential assignment of error.

Furthermore, after fully examining the proceedings below, we have found no other

potential issues for appeal. Because we agree that Keller’s appeal is wholly frivolous,

we (1) grant Keller’s counsel’s motion to withdraw and (2) affirm the judgment of the trial

court.

                                                                  JUDGMENT AFFIRMED.
Lawrence App. No. 10CA39                                                           7


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.


                                  For the Court


                                  BY: ____________________________
                                      Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
