[Cite as State v. Allen, 2019-Ohio-1664.]




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

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2018-CA-21
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-266
                                                  :
 KATIE M. ALLEN                                   :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                               Rendered on the 3rd day of May, 2019.

                                             ...........

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 309 North Barron Street, Eaton,
Ohio 45320
      Attorney for Defendant-Appellant

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

DONOVAN, J.
                                                                                        -2-




       {¶ 1} This matter is before the court on Katie M. Allen’s September 11, 2018

notice of appeal. Allen’s appointed counsel filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no potentially

meritorious issues to present on appeal. We notified Allen of counsel’s filing of an

Anders brief and gave her an opportunity to file a pro se brief, but she has not done so.

      {¶ 2} Allen appeals her conviction, following her guilty pleas, of one count of

aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2)/(C)(1)(d) (Count One),

a felony of the second degree, and one count of trafficking in heroin, in violation of R.C.

2925.05(A)(2)/(C)(6)(a) (Count Two), a felony of the fifth degree.

      {¶ 3} On June 26, 2018, the trial court held a hearing at which the prosecutor

indicated that Allen consented to being prosecuted pursuant to a proposed bill of

information and to waiving prosecution by indictment. The bill of information charged

Allen with aggravated trafficking in methamphetamine (with forfeiture specifications) and

with trafficking in heroin, as described above. The prosecutor further advised the court

that, in exchange for Allen’s guilty plea, the State dismissed a second fifth-degree felony

trafficking charge and agreed to forego prosecution of additional trafficking charges which

were under investigation. The State also agreed “not to enhance the felony two to a

felony one, with a school zone [sic].” Finally, the prosecutor indicated that Allen had

agreed to the forfeitures. Allen then confirmed her understanding of the plea agreement

as recited by the prosecutor, and she acknowledged that there was no agreement

regarding her sentence.

      {¶ 4} The court advised Allen of her right to a grand jury proceeding and explained
                                                                                          -3-


the nature of a bill of information, and Allen signed a waiver of indictment form. The court

then placed Allen under oath. In response to questions from the court, Allen advised the

court that she was born in 1993, that she possessed a GED, and that she could read and

write the English language. She stated that she was not under the influence of any drugs

or alcohol, and that she had not been threatened or promised anything to induce her

pleas. She acknowledged having adequate time to discuss her pleas with her lawyer,

and that counsel answered all of her questions after going over all the charges and

specifications with her. Allen stated that she was satisfied with her counsel’s advice.

She indicated to the court that she understood the meaning and the nature of the charges

and specifications.

       {¶ 5} The court addressed Counts One and Two, concurrent and consecutive

sentencing, and the maximum sentences for each count. The court advised Allen that

the sentence for Count One was mandatory, and that it carried a mandatory fine. The

court advised Allen regarding post-release control. The court next advised Allen of all of

her constitutional rights prior to accepting her pleas, and Allen acknowledged her

understanding thereof. She acknowledged her signature on the plea forms, and she

indicated that she did not have any questions for counsel or the court. The court found

that Allen was “making a knowing, intelligent and voluntary decision to tender pleas of

guilty to Count One, including the two forfeiture specifications and to Count Two in the bill

of information.”   The court further found that Allen had been informed of all of her

constitutional rights, and that she understood the nature of the charges, the effects of

pleas of guilty, and the possible penalties which could be imposed. The court ordered a

presentence investigation report.
                                                                                            -4-


       {¶ 6} Allen was sentenced on August 13, 2018. Allen was sentenced to five years

in prison on Count One and to one year on Court Two, to be served concurrently.

Pursuant to forfeiture specifications on Count One, a 1998 Ford Taurus and $555 were

forfeited to the State. The court waived the mandatory fine due to Allen’s indigency.

       {¶ 7} Allen’s appellate counsel asserts that he “has conducted an examination of

the record and finds no merit to any claim of error” sufficient to overturn Allen’s conviction.

       {¶ 8} This court has previously discussed Anders, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493, as follows:

              Pursuant to Anders, we must determine, “after a full examination of

       all the proceedings,” whether the appeal is “wholly frivolous.” [Anders] at

       744; Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

       An issue is not frivolous merely because the prosecution can be expected

       to present a strong argument in reply. State v. Pullen, 2d Dist. Montgomery

       No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous appeal is one that

       presents issues lacking arguable merit, which means that, “on the facts and

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

       for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-

       3242, ¶ 8, citing Pullen at ¶ 4. If we find that any issue * * * is not wholly

       frivolous, we must appoint different appellate counsel to represent the

       defendant. Id. at ¶ 7.

State v. Ferguson, 2d Dist. Clark No. 2018-CA-71, 2019-Ohio-1143, ¶ 3.

       {¶ 9} Counsel for Allen asserts one potential assignment of error on appeal:

              THE TRIAL COURT ERRED BY ACCEPTING THE APPELLANT’S
                                                                                       -5-


      GUILTY PLEA ON THE BASIS THAT HER ADMISSIONS WHERE SUCH

      [sic] AN ADMISSION WAS NOT MADE KNOWINGLY, VOLUNTARILY,

      INTELLIGENTLY AND THEREBY VIOLATED HER RIGHTS AFFORDED

      HER UNDER THE CONSTITUTION OF THE UNITED STATES AND THE

      STATE OF OHIO.

      {¶ 10} Appellate counsel asserts that Allen was not placed under oath at her plea

hearing and that the trial court “failed to ask Ms. Allen if she was satisfied with the

representation and legal services rendered by counsel.”     Counsel also asserts that the

trial court “never specifically stated the appropriate code section under the Ohio Revised

Code” under which these charges were filed.

      {¶ 11} We have reviewed the entire record, including the plea and sentencing

transcripts and the presentence investigation report. This review has not revealed any

potentially meritorious appellate issues. Contrary to Allen’s assertions, she was placed

under oath after signing the waiver of indictment. Further, the court asked Allen if she

was satisfied with her counsel’s representation, and she responded affirmatively. Allen

further advised the court that she understood the nature and meaning of the charges

against her, and the court so found. Allen’s bill of information, which she indicated she

understood, included the relevant sections of the Revised Code for each offense, and the

trial court’s failure to recite those sections at the plea hearing does not present a

meritorious issue for appeal.

      {¶ 12} We have reviewed the entire record and conducted our independent

review, pursuant to Penson, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. We agree with
                                                                                        -6-


appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial

court's judgment will be affirmed.



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



HALL, J. and TUCKER, J., concur.



Copies sent to:

Janna L. Parker
Brian A. Muenchenbach
Katie M. Allen
Hon. Stacy M. Wall
