[Cite as State v. Farris, 2019-Ohio-47.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2018-CA-55
                                                 :
 v.                                              :   Trial Court Case No. 2018-CR-13
                                                 :
 LUKE FARRIS                                     :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 11th day of January, 2019.

                                            ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio
45409
      Attorney for Defendant-Appellant

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




WELBAUM, P.J.
                                                                                         -2-




       {¶ 1} Defendant-appellant, Luke Farris, appeals from his conviction in the Clark

County Court of Common Pleas after he pled guilty to two counts of aggravated

possession of drugs. On July 31, 2018, Farris’s appointed appellate counsel filed a brief

under the authority of 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 appeal. On September 17,

2018, this court notified Farris that his counsel found no meritorious claim to present on

appeal and granted him 60 days to file a pro se brief assigning any errors. Farris,

however, did not file a pro se brief. After reviewing the entire record as prescribed by

Anders, we find no issues with arguable merit. Accordingly, the judgment of the trial

court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On January 8, 2018, the Clark County Grand Jury returned an indictment

charging Farris with two counts of aggravated possession of drugs in violation of R.C.

2925.11(A), both felonies of the fifth degree, and one count of illegally conveying drugs

onto the grounds of a detention facility in violation of R.C. 2921.36(A)(2), a felony of the

third degree. The charges arose after a police officer discovered methamphetamine in

Farris’s vehicle during a consensual search and thereafter on Farris’s person while he

was in jail.

       {¶ 3} On March 14, 2018, Farris pled guilty to the two counts of aggravated

possession of drugs as part of a negotiated plea agreement with the State. In exchange

for Farris’s guilty plea, the State agreed to dismiss the illegal conveyance charge. The
                                                                                         -3-


parties also agreed that a presentence investigation (“PSI”) would be conducted prior to

Farris’s sentencing hearing. During Farris’s plea hearing, the trial court conducted a plea

colloquy in compliance with Crim.R. 11(C) and accepted Farris’s guilty plea. Per the

parties’ agreement, the trial court also ordered a PSI.

       {¶ 4} On April 5, 2018, the trial court proceeded to sentencing. At the sentencing

hearing, the trial court found that pursuant to R.C. 2929.13(B)(1)(b)(xi), it had discretion

to impose a prison term for Farris’s two aggravated possession of drugs offenses.

Specifically, the trial court found that Farris committed one of the offenses while he was

out on bond in an unrelated case originating in Miami County. The trial court also noted

that it had reviewed the PSI, which indicated that Farris had several prior misdemeanor

convictions for traffic related offenses, disorderly conduct, menacing, receiving stolen

property, and possession of drugs.

       {¶ 5} The PSI also indicated that Farris had a history of substance abuse. Farris

reported to the PSI examiner that in 2016 he completed a three-month residential

rehabilitation program and a 90-day out-patient rehabilitation program.         Farris also

advised the trial court that he had been clean and sober for several months, but probably

needed further treatment.

       {¶ 6} At the time of his sentencing, Farris was serving two consecutive 180-day jail

terms for misdemeanor offenses committed in Miami County. After considering the PSI,

the statements made by counsel and Farris, the purposes and principles of sentencing in

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

sentenced Farris to serve nine months in prison for each offense. The trial court then

ordered those prison terms to be served concurrently to each other and concurrently to
                                                                                           -4-


the sentence Farris was serving in Miami County. The trial court also granted Farris “jail

credit” from the date of his sentencing, “April 5, 2018 until conveyance to the penitentiary.”

Judgment Entry of Conviction (Apr. 5, 2018), Clark C.P. No. 2018-CR-13, Docket No. 12,

p. 1.



                                    Law and Analysis

        {¶ 7} As previously noted, Farris’s appellate counsel filed a brief pursuant to

Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. According to Anders, this court

must conduct an independent review of the record to determine if the appeal at issue is

wholly frivolous. Id. at 744. “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.” State v.

Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n issue

lacks arguable merit if, on the facts and law involved, no responsible contention can be

made that it offers a basis for reversal.” Id., citing State v. Pullen, 2d Dist. Montgomery

No. 19232, 2002-Ohio-6788, ¶ 4.

        {¶ 8} If we determine the appeal is frivolous, we may grant counsel’s request to

withdraw and then dismiss the appeal without violating any constitutional requirements,

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,

2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.

However, “[i]f 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
                                                                                    -5-

defendant.” Marbury at ¶ 7, citing Pullen at ¶ 2.

       {¶ 9} In this case, Farris’s appellate counsel has not raised any potential

assignments of error for our review. After conducting an independent review of the

record pursuant to Anders, we agree with Farris’s appellate counsel that, based on the

facts and relevant law, there are no issues with arguable merit to present on appeal.

Accordingly, the judgment of the trial court is affirmed.

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



DONOVAN, J. and HALL, J., concur.



Copies sent to:

Andrew P. Pickering
Gary C. Schaengold
Luke Farris
Hon. Douglas M. Rastatter
