[Cite as State v. Ali, 2019-Ohio-3192.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2018-CA-42
                                                 :
 v.                                              :   Trial Court Case No. 2018-CR-173
                                                 :
 SIDIQ NAJIM ALI                                 :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                           ...........

                                           OPINION

                              Rendered on the 9th day of August, 2019.

                                           ...........

KEVIN TALEBI, Atty. Reg. No. 0069198, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

RENEE D. BUSSE, Atty. Reg. No. 0092823, 10890 North Patterson Road, Piqua, Ohio
45356
      Attorney for Defendant-Appellant

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




DONOVAN, J.
                                                                                       -2-




      {¶ 1} Sidiq Najim Ali appeals from a judgment entry of conviction, entered following

his plea of guilty to one count of domestic violence. Appellate 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 were no meritorious issues for appeal. We have independently

reviewed the record, and we hereby affirm the judgment of the trial court.

      {¶ 2} After Ali’s case was bound over from the municipal court, Ali was indicted

on September 4, 2018, on one count of domestic violence, in violation of R.C.

2919.25(A)(D)(3), a felony of the fourth degree, and one count of criminal damaging or

endangering, in violation of R.C. 2909.06(A)(1)(B), a misdemeanor of the second degree.

Ali pled not guilty on September 6, 2018.

      {¶ 3} A plea agreement was reached, and a hearing was held on October 12,

2018. The prosecutor requested that the court accept Ali’s guilty plea to an amended

Count 1, domestic violence, with the following language deleted from the indictment: “And

the offender knew that the victim was pregnant at the time of the offense.”           The

prosecutor indicated that the State agreed to the dismissal of the remaining count. The

prosecutor made the following statement with respect to sentencing:

             State has agreed to recommend a pre-sentence investigation report.

      We will agree to review said report. If the Defendant has no further criminal

      history record than what is already known and disclosed in the Prosecutor’s

      discovery packet or by the Defendant’s discovery packet, the State agrees

      to recommend at sentencing community control. Along with the special

      conditions including alcohol and drug counseling, anger management
                                                                                         -3-


       counseling, and placement at West Central Community-Based correctional

       facility.

               If the pre-sentence investigation report or other source reveals an

       additional criminal record either not previously known to the State or not

       discussed prior to the entrance of the plea; or if the Defendant is charged

       with an additional criminal offense either while out on bond or from the date

       of entering the plea to the final date for which the Defendant is sentenced

       for this offense; or if the Defendant, after entry of the plea is found to have

       violated a condition of bond, the parties agree that the State is not bound to

       its recommendations noted above. * * *

       {¶ 4} Ali responded affirmatively when asked if he had “received enough

information to make decisions about this case and to enter his plea of guilt knowingly,

intelligently, and voluntarily. Ali indicated to the court that he believed he was released

from probation in July before his August offense. The court advised Ali that the maximum

sentence for his offense was 18 months, that the amendment to the indictment removed

the mandatory prison provision, and that the Court “then would have to analyze [Ali’s]

sentence as it would any other felony four domestic violence offense.” The court advised

Ali that it was free to accept the State’s sentencing recommendation but was not required

to do so. The court also advised Ali about post-release control. The court ascertained

that Ali understood the charge against him and the maximum penalty, and that a plea of

guilty was a complete admission of guilt. The court conducted a thorough Crim.R. 11

colloquy with Ali.

       {¶ 5} On October 29, 2018, the trial court sentenced Ali to 18 months in prison.
                                                                                           -4-


At the start of the hearing, the court noted that Ali was wearing a yellow jumpsuit, “which

is indicative of receiving some type of disciplinary sanction at the jail usually.” Ali stated

that it was due to “an argument,” and that another inmate “called me a n***** and he tried

to spit at me so I moved out of the way and I slapped him.” When asked what discipline

he received, Ali responded, “20 days in this jumpsuit and max.”

       {¶ 6} When asked to make a statement regarding sentencing, the prosecutor

responded as follows:

              Consistent with the plea agreement, the State is recommending that

       the Defendant receive community control with placement at West Central

       Community-Based        Correctional     Facility.      State     makes     that

       recommendation after having consulted with the victim, who is present here

       in the courtroom. And also having extensive conversation with Defense

       Counsel.

              Had the opportunity to review the pre-sentence investigation report.

       Would note the Defendant’s Ohio Risk Assessment Score was 26, which

       places him in the high category.       And despite both the arguments for

       community control that were made by both the victim and Defense Counsel,

       the State noted it was significant that the Defendant indicated that he was

       open to receive a prison sentence because he believed that would give him

       the best opportunity for, the State’s interpretation for that request, it would

       give him the best opportunity for programming to address his issues.

              His issues, which he primarily identifies as being due to alcohol. He

       blames all his criminal behavior to his substance abuse problems as it
                                                                                -5-


relates to alcohol. He indicates, in his opinion, that he would probably not

have changed - - or changed but for the intervention of the Court and the

victim actually calling for law enforcement.

       He does have a history of prior criminal convictions. Most notably,

a prior domestic violence conviction in 2011. Prior menacing in 2016 that

was reduced to menacing as a charge of domestic violence. There are other

criminal offenses in the Defendant’s criminal history. All of which seem to

be related to - - many of which are related to violent or turbulent behavior.

And many of which that have criminal convictions due to alcohol or

substance abuse.

       He self-reports alcohol and Ecstasy as being his prior drugs of abuse

that he has used. The alcohol abuse seems to be a regular incident. And

the facts of this particular case involve the Defendant coming home. He

was living with the victim. The victim was pregnant. I believe she was 13

weeks with their child. And they engaged in an argument surrounding the

Defendant’s alcohol use.

       The argument escalated. The Defendant told the victim to leave the

residence. And there are reports that he pushed the victim down inside the

residence, followed her outside, pushed her again as she was getting into

her friend’s vehicle where she struck her head. And then once outside the

vehicle he punched the window of the car shattering the glass. And the

glass cut the victim’s mouth.

       The victim was taken to the hospital and no significant injuries were
                                                                                       -6-


      reported.   She did have a minor injury on her mouth. The victim has

      indicated that she would like to address the Court at this time, Judge.

      Before I conclude my comments though, I would indicate it is a difficult case.

      It’s a difficult case because there are a lot of factors which do support a

      prison sentence. The State felt that community control was appropriate,

      but only at the residential setting. And only because this Defendant, in the

      State’s opinion, is not going to be able to succeed without significant

      intervention at the residential setting.

             The Defendant has no housing set up. The Defendant seems to

      have a history of mental health issues and will need some counseling. The

      Defendant has substance abuse problems that cannot be addressed, in the

      State’s opinion, successfully on an outpatient basis. At least not initially.

      He will need something more intensive than outpatient community control.

      And the state views this as this is Defendant’s last chance before he gets

      something much more significant in the way of a prison sentence.

             So the State is recommending that the Court impose residential

      sanctions at West Central. * * *

      {¶ 7} After the victim made a statement, counsel for Ali advised the court that she

spoke to Ali’s probation officer, John Gibbs, on October 26, 2018, and that Ali had

completed an anger management counseling program before the instant offense and was

on non-reporting probation. Counsel for Ali stated that he had never been to prison and

wanted to get help for his alcohol problem, and she asked the Court “to adopt the joint

recommendation in this case.”
                                                                                      -7-


      {¶ 8} The court went over the presentence investigation report with Ali in detail.

Ali’s judgment entry of conviction states that the court considered R.C. 2929.11 and R.C.

2929.12, as follows:

                           Seriousness Factors

      More Serious

      ***

      ● This is the sixth time, including the case at bar, that the Defendant has

      been reported to have committed acts of violence against a woman while

      intoxicated.

      ● Of those six, the Defendant has been convicted of four acts of violence

      toward a woman, including the case at bar.

      ● The Defendant committed this offense of Domestic Violence “a couple of

      months” after successfully completing anger management counseling for

      an offense involving a different woman.

      ● The Defendant committed this offense of Domestic Violence against a

      victim who was thirteen weeks pregnant with his child.

      ● The Defendant knows that alcohol consumption fuels his violence toward

      his domestic partners, but does not seek treatment for that alcoholism.

      ● The Defendant’s relationship facilitated the offense. R.C. 2921.12(B)(6).

      Less Serious

      ***

      ● None

      Conclusion
                                                                               -8-


 The Court concludes that the factors establishing Defendant’s conduct is

more serious outweigh the factors establishing that Defendant’s conduct is

less serious.

                           Recidivism Factors

More Likely to Commit Future Crimes

***

● The Defendant has a history of criminal convictions. R.C. 2929.12(D)(2)

● The Defendant has not responded favorably to sanctions previously

imposed for criminal convictions. R.C. 2929.12(D)(3)

● The Defendant has demonstrated a pattern of drug or alcohol abuse that

is related to the offense, and the Defendant refuses to acknowledge that the

Defendant has demonstrated that pattern, or the Defendant refuses

treatment for the drug or alcohol abuse. R.C. 2929.12(D)(4)

●The Defendant committed the offense of Domestic Violence “a couple of

months” after successfully completing anger management counseling for

an offense involving a different woman.

● The Defendant knows that alcohol consumption fuels his violence toward

his domestic partners, but does not seek treatment for that alcoholism.

● The Defendant’s ORAS score is “High”.

Less Likely to Commit Future Crimes

***

● Prior to committing the offense, the Defendant had not been adjudicated

a delinquent child. R.C. 2929.12(E)(1)
                                                                                           -9-

         ● The Defendant shows genuine remorse for the offense.                   R.C.

         2929.12(E)(5)

                ○ to wit: Defendant recognizes the path that his alcohol consumption

         has led him to becoming a person he states he does not want to be.

         Conclusion

         The Court concludes that the factors establishing Defendant’s recidivism is

         more likely outweigh the factors establishing that Defendant’s recidivism is

         less likely.

         {¶ 9} Ali’s appellate counsel states in her brief that, after “an extensive review of

the appellate record, she does not believe Ali’s pending appeal “has any arguably

meritorious issues to present to this court by way of appellate review.”

         {¶ 10} On April 17, 2019, this Court notified Ali of counsel’s Anders brief and gave

him 60 days to file a pro se brief assigning any errors for our review. No brief has been

filed.

         {¶ 11} As this Court has previously noted:

                An appellate court, upon the filing of an Anders brief, has a duty to

         determine, “after a full examination of the proceedings,” whether the appeal

         is, in fact, “wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18

         L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d

         300 (1988). An issue is not frivolous based upon a conclusion that the

         State has a strong responsive argument.          State v. Pullen, 2d Dist.

         Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead,

         is one about which, “on the facts and law involved, no responsible
                                                                                        -10-

      contention can be made that offers a basis for reversal.” State v. Marbury,

      2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find that any

      issue is not wholly frivolous, we must reject the Anders brief and appoint

      new counsel to represent the defendant.

State v. Allen, 2d Dist. Clark No. 2018-CA-60, 2019-Ohio-1253, ¶ 5.

      {¶ 12} Counsel for Ali asserts the following potential assignment of error:

             WHETHER THE TRIAL COURT’S ACCEPTANCE OF THE

      APPELLANT’S        GUILTY      PLEA      AND     SUBSEQUENT          FELONY

      SENTENCING FAILED TO COMPLY WITH OHIO LAW.

      {¶ 13} Regarding acceptance of a plea, Crim.R. 11(C)(2)(a) provides:

             (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

      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,
                                                                                          -11-


       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.

              ***

       {¶ 14} As this Court has noted:

              Crim.R. 11(C)(2) contains both constitutional and nonconstitutional

       rights to insure that a plea is voluntary and made with an understanding of

       its consequences. * * * The Supreme Court of Ohio has expressed its

       preference for literal compliance with Crim.R. 11, Clark at ¶ 29. However,

       substantial compliance is sufficient in the nonconstitutional context. There,

       “a slight deviation from the text of the rule is permissible; so long as the

       totality of the circumstances indicates ‘the defendant subjectively

       understands the implications of his plea * * *.’ ” Clark at ¶ 31, quoting State

       v. Nero (1990), 56 Ohio St.3d 106, at 108. We review potential errors under

       Crim.R. 11 on a de novo basis.

State v. Ellis, 2d Dist. Montgomery No. 22864, 2009-Ohio-3639, ¶ 13.

       {¶ 15} Ali indicated that he received enough information about his case to make a

knowing, intelligent and voluntary plea, and the record reflects that the trial court complied

with Crim.R. 11 in accepting his plea.
                                                                                  -12-


{¶ 16} Regarding his sentence, as this Court has noted:

       When reviewing felony sentences, appellate courts apply the

standard of review found in R.C. 2953.08(G)(2), not an abuse of discretion

standard.   State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), 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.

       “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum * * * sentences.” State

v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, a trial

court must consider the statutory criteria that apply to every felony offense,

including those set out in R.C. R.C. 2929.11 and R.C. 2929.12. State v.

Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11(2d

Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d

1, ¶ 38. * * * R.C. 2929.12(B) sets forth nine factors indicating that an

offender's conduct is more serious than conduct normally constituting the

offense, whereas R.C. 2929.12(C) sets forth four factors indicating that an

offender's conduct is less serious than conduct normally constituting the

offense. Similarly, R.C. 2929.12(D) and (E) each lists five factors that trial

courts are to consider regarding an offender being more or less likely to
                                                                                         -13-


       commit future crimes.

              Although statutory maximum sentences do not require any of the

       findings specified in R.C. 2953.08(G)(2), the Ohio Supreme Court has found

       it appropriate “for appellate courts to review those sentences that are

       imposed solely after consideration of the factors in R.C. 2929.11 and

       2929.12 under a standard that is equally deferential to the sentencing court.

       That is, an appellate court may vacate or modify any sentence that is not

       clearly and convincingly contrary to law only if the appellate court finds by

       clear and convincing evidence that the record does not support the

       sentence.” Marcum at ¶ 23.

State v. Roberts, 2d Dist. Montgomery No. 2018-CA-27, 2019-Ohio-49, ¶ 6-8.

       {¶ 17} Ali’s felony sentence is not contrary to law. R.C. 2929.14(A)(4). The court

indicated to Ali at the sentencing hearing and it is reflected in the judgment entry that it

considered the R.C. 2929.11 and R.C. 292912 factors. Further, Ali’s felony sentence is

not clearly and convincingly unsupported by the record. His presentence investigation

report, which the court thoroughly considered, reflects a criminal history of violent

offenses involving alcohol. Ali indicated to the court that he had recently completed

anger management counseling before the instant offense, and the victim herein was

pregnant at the time of the offense.

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

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

potentially meritorious appellate issues. Having fulfilled our duty pursuant to Anders,

Ali’s conviction is affirmed.
                                               -14-




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



WELBAUM, P.J. and TUCKER, J., concur.




Copies sent to:

Kevin Talebi
Renee D. Busse
Sidiq Najim Ali
Hon. Nick A. Selvaggio
