[Cite as State v. Martin, 2017-Ohio-763.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2015-CA-107
                                                  :
 v.                                               :   Trial Court Case No. 2015-TRC-530
                                                  :
 STEPHANIE MARTIN                                 :   (Criminal Appeal from
                                                  :   Municipal Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 3rd day of March, 2017.

                                             ...........

MARC ROSS, Atty. Reg. No. 0070446, Chief Prosecuting Attorney, City of Springfield,
50 East Columbia Street, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

SAMANTHA BERKHOFER, Atty. Reg. No. 0087370, P.O. Box 2693, Springfield, Ohio
45501
      Attorney for Defendant-Appellant

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




WELBAUM, J.
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       {¶ 1} Defendant-appellant, Stephanie Martin, appeals from her conviction and

sentence in the Clark County Municipal Court after pleading guilty to one count of

operating a vehicle while intoxicated (“OVI”). In proceeding with the appeal, Martin’s

appointed 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), indicating that there are no issues with arguable

merit to present on appeal. After conducting a review as prescribed by Anders, we also

find no issues with arguable merit. Accordingly, the judgment of the trial court will be

affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On January 15, 2015, Martin was charged with an OVI in violation of R.C.

4511.19(A)(1)(a) and for failing to control her vehicle in violation of Section 331.34(a) of

the Codified Ordinances of the City of Springfield, Ohio. The charges arose after Martin

drove her vehicle into several parked cars while intoxicated. Because Martin’s four-

month-old child was with her in the vehicle, Martin was also charged with endangering

children in separate Case No. 2015-CRB-271.

       {¶ 3} Martin initially pled not guilty to the charges and was appointed a public

defender. A jury trial was scheduled for May 27, 2015; however, at the final pretrial

conference, Martin entered a plea agreement wherein she agreed to plead guilty to the

OVI charge in exchange for the State dismissing the charges for failure to control and

endangering children.

       {¶ 4} Prior to accepting Martin’s guilty plea, the trial court made all the required
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advisements under Crim.R. 11(E).1 The court then advised Martin that her OVI offense

carried a mandatory three-day jail term and possibility up to six months in jail, but that the

mandatory three days in jail could be suspended if she completed a three-day drivers’

intervention program. See R.C. 4511.19(G)(1)(a)(i) (providing “the court may suspend

the execution of the three-day jail term under this division if the court, in lieu of that

suspended term, places the offender under a community control sanction pursuant to

section 2929.25 of the Revised Code and requires the offender to attend, for three

consecutive days, a drivers’ intervention program certified under section 5119.38 of the

Revised Code”). Since this was Martin’s first OVI offense, the trial court ordered Martin

to complete the three-day drivers’ intervention program prior to her sentencing hearing.

       {¶ 5} Sixth months later, on October 20, 2015, Martin appeared at court for

sentencing without having completed the three-day drivers’ intervention program. In

light of this failure, the trial court imposed a $375 fine and a one-year driver’s license

suspension. The trial court also sentenced Martin to three days in jail. However, after

Martin requested her jail term be stayed for two weeks in order to get her affairs in order,

the trial court modified Martin’s sentence to fifteen days in jail, with twelve of those days

to be suspended upon Martin reporting to jail on November 3, 2015.                 Therefore,

assuming Martin reported to jail on November 3rd, she was only required to serve three

days in jail as initially ordered by the court. In addition, Martin’s jail sentence was ordered

to run consecutively with a seven-day jail sentence that she received for an unrelated

offense in Case No. 2014-CRB-4345.


1 A first-degree misdemeanor OVI is considered a “petty offense” for which Crim.R. 11(E)
applies. State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 13;
State v. Rush, 2d Dist. Greene No. 2015-CA-54, 2016-Ohio-4895, ¶ 3.
                                                                                           -4-


       {¶ 6} On November 18, 2015, Martin filed a notice of appeal from her conviction

and sentence and requested appointment of appellate counsel.                  Following the

appointment of counsel, and multiple motions for an extension of time to file an appellate

brief, on October 17, 2016, Martin’s appellate counsel filed an Anders brief indicating that

there were no issues with arguable merit to present on appeal. On October 25, 2016,

we notified Martin that her counsel found no meritorious claim for review and granted her

60 days to file a pro se brief assigning any errors. Martin did not file a pro se brief.



                                    Law and Analysis

       {¶ 7} Our task in this case is to conduct an independent review of the record as

prescribed by Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. In Anders cases,

the appellate court must conduct a thorough examination of the proceedings to determine

whether the appeal is frivolous, and if it is, the court may “grant counsel’s request to

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

or the court 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. “If we find that any issue presented [f]or which an independent analysis reveals is

not wholly frivolous, we must appoint different appellate counsel to represent the

defendant.”   (Citation omitted.)   State v. Marbury, 2d Dist. Montgomery No. 19226,

2003-Ohio-3242, ¶ 7.

       {¶ 8} “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
                                                                                          -5-

a defendant will ultimately prevail on that issue on appeal.” Id. at ¶ 8, citing State v.

Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. 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.

       {¶ 9} In conducting our independent review, Martin’s appellate counsel has

requested that we consider two potential assignments of error. Under the first potential

assignment of error, Martin’s appellate counsel claims that there was a change in public

defenders during Martin’s case, which caused her to enter an uniformed guilty plea.

According to counsel, Attorney Greg Cox from the Public Defender’s Office was originally

appointed as Martin’s trial attorney, but he passed away during the course of her case

and was replaced by another public defender, Attorney Rebekah Sinnott. As a result of

this change, Martin’s appellate counsel suggests that Martin may have received unclear

legal advice, which caused her guilty plea to be less than knowing, intelligent, and

voluntary.

       {¶ 10} Counsel, however, does not indicate what legal advice was unclear at the

time Martin entered her guilty plea. In addition, the record indicates that Attorney Cox

was present at the time Martin entered her guilty plea and that he was the attorney who

assisted her in negotiating the plea agreement.         Accordingly, Martin did not have

different attorneys before entering her guilty plea, as Attorney Sinnott did not begin to

represent Martin until the sentencing phase of the proceedings.

       {¶ 11} Furthermore, for a “petty offense” misdemeanor, such as Martin’s OVI

offense, the trial court was required only to inform Martin of the effect of her guilty plea,

i.e., that her guilty plea was a complete admission of guilt. State v. Jones, 116 Ohio
                                                                                          -6-

St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 14, ¶ 25; Crim.R. 11(E). Accord State v.

Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 14. Here, the record

indicates that, before accepting Martin’s guilty plea, the trial court advised Martin that by

pleading guilty she was admitting to committing the OVI offense on January 15, 2015.

Thereafter, Martin indicated that she understood said effect and proceeded to enter her

guilty plea in a knowing and voluntary fashion.

       {¶ 12} For the foregoing reasons, Martin’s first potential assignment of error lacks

arguable merit.

       {¶ 13} The second potential assignment of error raised by Martin’s appellate

counsel does not actually raise an error for our review, but instead suggests that Martin’s

appeal is moot given that Martin voluntarily satisfied her jail sentence in this case.

According to counsel, Martin reported to jail on November 3, 2015, completed her jail

sentence on November 13, 2015, and then filed the instant appeal five days later on

November 18, 2015.

       {¶ 14} “ ‘Under Ohio law, an appeal from a misdemeanor conviction after the

judgment has been voluntarily satisfied is moot unless the defendant shows that he or

she will suffer some collateral legal disability or loss of civil rights stemming from that

conviction. Unless a defendant files a motion to stay execution of his sentence, the

defendant is deemed to have voluntarily served his sentence.’ ” State v. Caudill, 2d Dist.

Montgomery No. 24881, 2012-Ohio-2230, ¶ 9, quoting Lammers v. Caltrider, 2d Dist.

Montgomery No. 21565, 2007-Ohio-1745, ¶ 5.

       {¶ 15} “A collateral disability is an adverse legal consequence of a conviction or

judgment that survives despite the court’s sentence having been satisfied or served.” In
                                                                                             -7-

re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10, citing Pollard v.

United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). “For example, a person

may be subject to further penalties or disabilities under state or federal law even after a

judgment has been satisfied.” Id., citing St. Pierre v. United States, 319 U.S. 41, 43, 63

S.Ct. 910, 87 L.Ed. 1199 (1943). “[A] collateral disability need not have an immediate

impact or impairment but may be something that occurs in the future.” Id. at ¶ 14, citing

Evitts v. Lucey, 469 U.S. 387, 391, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), fn. 4.

       {¶ 16} Pursuant to R.C. 4510.036(C)(7), and as noted by the trial court, Martin’s

OVI offense resulted in 6 points being assessed against her driving record.                The

Supreme Court of Ohio held in In re S.K.J. that “[t]he imposition of points on a traffic

offender’s driving record is a statutorily imposed penalty sufficient to create a collateral

disability as a result of the judgment and preserves the justiciability of an appeal even if

the offender has voluntarily satisfied the judgment.” Id. at syllabus. Therefore, although

Martin has voluntarily served her jail sentence, she is subject to a collateral legal disability

as a result of six points being assessed against her driving record as required by R.C.

4510.036(C)(7). Accordingly, Martin’s appeal is not moot as suggested by appellate

counsel.

       {¶ 17} In conducting our independent review, we also note that the trial court did

not comply with the mandates of R.C. 4511.19(G)(1)(a)(i) when it ordered Martin to attend

the three-day drivers’ intervention program without first placing her on community control

sanctions, but instead delaying her sentencing until after she attended the program.

R.C. 4511.19(G)(1)(a)(i) provides, in relevant part, that:

       The court may suspend the execution of the three-day jail term under this
                                                                                          -8-

       division if the court, in lieu of that suspended term, places the offender under

       a community control sanction pursuant to section 2929.25 of the Revised

       Code and requires the offender to attend, for three consecutive days, a

       drivers’ intervention program certified under section 5119.38 of the Revised

       Code.

(Emphasis added.)

       {¶ 18} Nevertheless, the trial court’s failure to comply with the specifics of this

provision is a frivolous issue, as it amounts to harmless error since Martin failed to attend

the drivers’ intervention program as ordered, and the trial court ultimately imposed a

sentence that fell within the range established by R.C. 4511.19(G)(1)(a)(i)-(iv), i.e., three

days in jail, a $375 fine, and a one-year driver’s license suspension.

       {¶ 19} Having conducted an independent review of the record as required by

Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we agree with Martin’s appellate

counsel that there are no non-frivolous issues with arguable merit to present on appeal.

Accordingly, the judgment of the trial court is affirmed.



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



HALL, P.J. and FROELICH, J., concur.
                        -9-



Copies mailed to:

Marc Ross
Samantha Berkhofer
Stephanie Martin
Hon. Thomas E. Trempe
