[Cite as State v. Howard, 2015-Ohio-4510.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2014-CA-128
                                                   :
 v.                                                :   Trial Court Case No. 11-CR-820
                                                   :
 DERON HOWARD                                      :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 30th day of October, 2015.

                                              ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West 2nd Street, Suite 2103,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1} Deron Howard appeals from the revocation of his community-control
                                                                                             -2-


supervision and his sentence to prison for burglary. Howard’s assigned counsel filed a

brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

indicating that “[c]ounsel has conducted an examination of the record and finds no merit

to any claim of error.” (Brief of Appellant, 1). By order filed on June 29, 2015, we informed

Howard that the Anders brief had been filed and advised him of his right to file his own

brief and the time limit for doing so. Howard did not file anything, and the time for filing

has expired.

                               The course of proceedings

       {¶ 2} On March 7, 2012, after Howard’s indictment and some preliminary

proceedings, his case was “assigned to the docket of Judge Richard P. Carey, sitting by

assignment to the General Division of this Court.” (Dkt. #14). The assignment entry is

signed by Judge Richard J. O’Neill, the presiding judge of Clark County Common Pleas

Court. 1 Thereafter, Howard pleaded guilty to burglary before Judge Carey, and by

judgment entry of conviction, filed on May 22, 2012, he was sentenced by Judge Carey

to four years of community-control supervision. The judge also imposed a prison sentence

of two years that Howard would serve if he violated the terms of supervision.

       {¶ 3} On October 3, 2014, Probation Officer Daniel Evans filed an affidavit stating

that Howard had violated the terms of supervision by pleading guilty, in Springfield

Municipal Court, to OVI on August 26, 2014, and to theft on September 15, 2014. On

October 17, 2014, the matter came before Judge Carey for a community-control

revocation hearing. Opening court, the bailiff said, “Clark County Probate Court is now in



1
  The entry does not include the term “presiding,” but we take judicial notice of the fact
that Judge O’Neill is the presiding judge.
                                                                                             -3-


session.” (Probation Violation Tr. 5). The judge then introduced the case by saying, “This

is by assignment in the matter of State of Ohio versus Deron Howard, Case 11-CR-0820.”

(Id.).

         {¶ 4} Probation Officer Evans testified that Rule #1 of the written rules of probation,

which Howard signed, states that Howard would “obey Federal, State and local laws.” (Id.

at 8). Evans then provided certified copies of Springfield Municipal Court records showing

Howard’s convictions for OVI and theft. Howard testified that he did not have counsel for

either of the municipal-court pleas. With regard to the OVI plea Howard was asked, “Okay.

All right. But you, but you did waive counsel and enter a guilty plea to the OVI back in

August of this year. Is that right?” (Id. at 18). Howard responded, “Yeah.” (Id.). With regard

to both charges, Howard said that he was not informed that his pleas could result in

revocation of community control. If he had known that, said Howard, he would not have

pleaded guilty. Howard did not deny committing either offense.

         {¶ 5} The trial court found that Howard had violated the terms of community

control, so the court revoked his supervision. The court reduced the originally imposed

two year prison sentence to eighteen months and gave Howard credit for the time that he

had served in jail in the case. Howard appealed.

                               Potential assignments of error

         {¶ 6} Although counsel found no merit to the appeal, he identifies, in his brief, two

possible assignments of error for our consideration. He notes that one could question

whether the probate court had jurisdiction over Howard, and he asserts that the trial court

abused its discretion by finding a violation based solely on Howard’s uncounseled guilty

pleas, which Howard asserted he would not have made if he had known that they could
                                                                                         -4-


cause a revocation of his supervision. We determine that neither contention has arguable

merit.

         {¶ 7} The presiding judge of a court of common pleas can temporarily assign a

judge from one division to another division of the same court, as required by the business

of the court. Sup.R. 3.01(B); Knoop v. Knoop, 2d Dist. Montgomery No. 22037, 2007-

Ohio-5178. Judge Carey was assigned to Howard’s case. The fact that the bailiff opened

the court as the probate court has absolutely no bearing on the judge’s authority to act in

this assigned case. On this record, an argument to the contrary is frivolous.

         {¶ 8} Likewise, an argument that Howard’s uncounseled convictions are not

adequate to find a violation of community control is frivolous. Uncounseled pleas cannot

be used to enhance the penalty of a pending case unless the state can prove that the

right to counsel was properly waived. State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-

314, 903 N.E.2d 618, ¶ 6. Initially we note that Howard admitted that he waived counsel

with respect to one of his pleas and that plea alone would have been sufficient to revoke

his supervision. In addition, the case here is not a penalty-enhancement case, where a

subsequent offense of the same nature results in a more serious penalty than the first

charge. This case is a revocation-of-supervision case, where the penalty, and its

consequences, had already been imposed and where the uncounseled plea argument

has never been applied. For over 30 years the law in Ohio has been that uncounseled

convictions alone can support a finding of a violation of the terms of supervision. State v.

Delaney, 11 Ohio St.3d 231, 465 N.E.2d 72 (1984). Although Delaney was decided by

interpretation of the applicable criminal rules, rather than on a constitutional basis,

Delaney has subsequently been cited with approval in cases that have rejected
                                                                                       -5-


constitutional challenges and have approved use of uncounseled pleas to support

revocation of supervision. See State v. Isles, 5th Dist. Stark No. 2006CA00050, 2006-

Ohio-6567, ¶ 15; State v. Van Johnson, 7th Dist. Mahoning No. 89 CA 138, 1992 WL

150188 (June 24, 1992). The second possible assignment of error has no arguable merit.

                                    Anders Review

      We also performed our duty under Anders to conduct an independent review of

the record. We thoroughly reviewed the docket, the various filings, the written transcript

of the revocation hearing, and the sentencing disposition. We found no non-frivolous

issues for review. Accordingly, the judgment of the Clark County Common Pleas Court is

affirmed.

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



FROELICH, P.J., and DONOVAN, J., concur.


Copies mailed to:

Ryan A. Saunders
Michael T. Columbus
Deron Howard
Hon. Richard P. Carey
