[Cite as State v. Strawsburg, 2018-Ohio-4764.]




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

 STATE OF OHIO                                        :
                                                      :
         Plaintiff-Appellee                           :   Appellate Case No. 2018-CA-14
                                                      :
 v.                                                   :   Trial Court Case No. 2017-CR-494
                                                      :
 NATHAN STRAWSBURG                                    :   (Criminal Appeal from
                                                      :    Common Pleas Court)
         Defendant-Appellant                          :
                                                      :

                                                 ...........

                                                 OPINION

                          Rendered on the 30th day of November, 2018.

                                                 ...........

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

TRAVIS KANE, Atty. Reg. No. 0088191, 130 W. Second Street, Suite 460, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1} Nathan Strawsburg appeals from his conviction and sentence following a

guilty plea to one count of aggravated drug possession, a fifth-degree felony.

        {¶ 2} Strawburg’s appointed appellate counsel has filed a brief pursuant to Anders
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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 review. We notified Strawsburg of the Anders filing and

gave him an opportunity to submit a pro se brief, but he did not do so.

       {¶ 3} The record reflects that police stopped Strawsburg for a traffic violation.

During the stop, he was found to have a suspended license. An inventory search of his

car resulted in the discovery of methamphetamine. (Plea Tr. at 3-4.) Strawsburg pled

guilty to the charge set forth above, and the State recommended community control

sanctions. After reviewing a PSI report, the trial court rejected the recommendation and

imposed a ten-month prison sentence.

       {¶ 4} In his Anders brief, appointed appellate counsel identifies three potential

issues for review but concludes that they lack arguable merit. First, counsel addresses

whether the trial court complied with Crim.R. 11 during the plea hearing. Second, counsel

questions whether the trial court considered the statutory principles and purposes of

sentencing and the seriousness and recidivism factors. Third, counsel analyzes whether

the trial court erred in rejecting community control.

       {¶ 5} Upon review, we agree with counsel’s assessment that raising the foregoing

issues would be frivolous. The trial court satisfied its responsibilities under Crim.R. 11

during the plea hearing. It fully complied with Crim.R. 11(C)(2)(c) with regard to

Strawsburg’s constitutional rights. As for Crim.R. 11(C)(2)(a) and (b), which involve non-

constitutional rights, the only possible issue we have found involves the trial court’s

obligation to tell Strawsburg that upon accepting his plea it could “proceed with judgment

and sentence.” See Crim.R. 11(C)(2)(b). We have not found this specific advisement in

the plea-hearing transcript. On this record, the omission was non-prejudicial, however,
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because the plea agreement provided for the preparation of a PSI report and the trial

court ordered a pre-sentence investigation, continued bond, and continued sentencing

for three weeks. (Plea Tr. at 8.) In addition, the plea form Strawsburg signed did advise

him that upon acceptance of his plea, the trial court could impose sentence immediately.

(Doc. # 10 at 3.) Because the trial court postponed sentencing and the plea form

contained the proper advisement, we see no possible prejudice stemming from the trial

court's failure to tell Strawsburg that it could proceed immediately with sentencing. We

find substantial compliance with Crim.R. 11(C)(2)(b). Any argument that the trial court’s

omission resulted in a prejudicially-defective plea is frivolous. Compare State v. Reed, 2d

Dist. Montgomery No. 27215, 2017-Ohio-7001, ¶ 8 (finding no non-frivolous issue for

appeal under similar circumstances).

       {¶ 6} We also see no non-frivolous issue with regard to the trial court’s

consideration of the sentencing factors in R.C. 2929.11 and R.C. 2929.12. Although the

trial court did not explicitly mention these factors, on a silent record it is presumed to have

considered them. State v. Atchison, 2d Dist. Clark No. 2017-CA-76, 2018-Ohio-2419,

¶ 23. In addition, the trial court’s judgment entry noted that it had considered “the

principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and

then balanced the seriousness and recidivism factors under Ohio Revised Code Section

2929.12.” (Doc. # 12 at 1.)

       {¶ 7} The trial court’s failure to impose community control sanctions also does not

present a non-frivolous issue. Although the State recommended community control as

part of the plea agreement, the trial court observed that Strawsburg had “a prior prison

term, two prior felony offenses, six prior OVI convictions, and on this particular case he
                                                                                            -4-


was operating a motor vehicle while under suspension with methamphetamine in the

vehicle.” (Sentencing Tr. at 4.) Under these circumstances, the trial court expressed

concern “about the safety of the community” and elected to impose a ten-month prison

sentence. (Id. at 4-5.) The trial court also noted in its judgment entry that it had discretion

to impose a prison sentence because Strawsburg had served a prior prison term. (Doc.

# 12 at 1.) The record fully supports the trial court’s sentencing decision, and it had the

authority to reject the State’s recommendation. State v. Barker, 2d Dist. Greene No.

09CA1, 2009-Ohio-5036, ¶ 1, 9-11 (finding no non-frivolous issue for appeal where the

trial court rejected the State’s recommendation of community control and imposed a

prison term).

       {¶ 8} In addition, our review of the Ohio Department of Rehabilitation and

Correction's website confirms that Strawsburg is no longer an inmate, nor is he subject to

post-release control. See State v. Erdman, 2d Dist. Montgomery No. 25814, 2014-Ohio-

2997, ¶ 3 (taking judicial notice appellant's name is not listed on the ODRC website).

Therefore, any issues related to the imposition of sentence or to the serving of his

sentence are moot and without arguable merit.

       {¶ 9} Finally, we have conducted an independent examination of the record as

required by Anders and have found no non-frivolous issues for review. Accordingly, we

affirm the judgment of the Clark County Common Pleas Court.

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



FROELICH, J. and TUCKER, J., concur.


Copies sent to:
                            -5-



Andrew P. Pickering
Travis Kane
Nathan Strawsburg
Hon. Douglas M. Rastatter
