[Cite as State v. Kostic, 2014-Ohio-4862.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-13-056

        Appellee                                 Trial Court No. 12 CR 659

v.

Johnn Kostic                                     DECISION AND JUDGMENT

        Appellant                                Decided: October 31, 2014

                                             *****

        Tim A. Dugan, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Johnn Kostic, appellant, appeals an August 7, 2013 judgment of conviction

and sentence of the Wood County Court of Common Pleas for the offense of possession

of cocaine, a violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree.

Kostic pled guilty to the offense. In the judgment, the trial court ordered appellant placed

on community control under the general supervision of the Adult Probation Department

for a period of three years.
       {¶ 2} This is an Anders case. Pursuant to procedures announced in Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for appellant

states that he is unable to find meritorious grounds for this appeal. Following Anders

procedure, counsel filed an appellate brief, asserting potential assignments of error.

Appellate counsel also filed a motion to withdraw as counsel for appellant.

       {¶ 3} Counsel mailed copies of the appellate brief and motion to withdraw as

counsel, to appellant. By letter, counsel notified appellant of his right to file his own

assignments of error and appellate brief within 45 days of receipt of the Anders brief.

       {¶ 4} Two potential assignments of error are asserted in the Anders brief:

              1. The trial court erred by ordering terms and conditions of

       community control that were unreasonable and not related to appellant’s

       crime or rehabilitating appellant.

              2. Appellant received ineffective assistance of counsel.

       {¶ 5} The first potential assignment of error contends that the terms and conditions

of community control imposed in appellant’s sentence are unreasonable. Appellant

objects to terms and conditions requiring: (1) successful completion of the Intensive

Supervision Probation Program; (2) continued treatment with Century Health for a

chemical dependence/substance abuse treatment and successful completion any and all

recommendations for services; (3) contacting Century Health for a mental health

assessment and successfully completing any and all recommendations for services;(4)

attending Alcoholics Anonymous or any 12-Step support meetings as required by the



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Adult Probation Department and submit verification of attendance at said meetings (5)

obtaining and maintaining employment at a lawful occupation approved by the Adult

Probation Department; (6) completing 300 hours of community service work at a rate of

not less than 100 hours per year; and (7) payment a $1,000 fine at a monthly rate as

directed by the Adult Probation Department. Appellant also objects to the trial court

ordering that a violation of any of the community control sanctions may result in a more

restrictive sanction, a longer period of community control, or a prison term of 12 months.

       {¶ 6} Community control conditions must be reasonably related to the statutory

ends of community control and must not be overbroad. State v. Talty, 103 Ohio St.3d

177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 12-16, citing State v. Jones, 49 Ohio St.3d 51,

52-53, 550 N.E.2d 469 (1990); State v. Schwartz, 6th Dist. Wood No. WD-12-060, 2013-

Ohio-3958, ¶ 10. In determining whether a condition reasonably relates to the statutory

ends of community control, the Ohio Supreme Court directs:

       {¶ 7} [C]ourts must “consider whether the condition (1) is reasonably

related to rehabilitating the offender, (2) has some relationship to the crime of

which the offender was convicted, and (3) relates to conduct which is criminal or

reasonably related to future criminality and serves the statutory ends of probation.”

(Footnote omitted.) Talty at ¶ 12, quoting Jones at 53.

       {¶ 8} In Talty, the Ohio Supreme Court recognized that “[b]ecause community

control is the functional equivalent of probation, this proposition applies with equal force

to community-control sanctions.” Talty at ¶ 16.



3.
       {¶ 9} Appellant was convicted of possession of cocaine and was on probation at

the time of the offense. At the time of sentencing, appellant was in treatment at Century

Health for substance abuse. The presentence investigative report details longstanding

substance abuse problems, including use of cocaine. Appellant tested positive for opiates

at the time of his presentence interview.

       {¶ 10} Counsel for appellant recommended at sentencing that the court consider

requiring appellant to secure mental health treatment. Appellant stated at the presentence

interview that he was receiving mental health counseling at Century Health. Records

provided by the agency indicated a diagnosis of polysubstance dependence and

generalized anxiety disorder.

       {¶ 11} We view the terms and conditions of community control requiring

participation in the Intensive Probation Program, continued substance abuse treatment,

submitting to a mental health assessment and following any recommendations for mental

health treatment, as well as attending 12 step support meetings are reasonably related to

rehabilitating appellant, relates to appellant’s conviction for drug possession, and relates

to criminal drug activity. We conclude that these conditions of community control are

reasonably related to the statutory ends of community control and are not overbroad.

       {¶ 12} The community control condition requiring 300 hours of community

service is authorized as a condition of community control by R.C. 2929.17(C). The

statute authorizes up to 500 hours of required community service. Id. A potential prison

term of twelve months upon violation of the terms and conditions of community control



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on a conviction for a fifth degree felony is also within the range of sentences authorized

by statute. R.C. 2929.15(B)(2); R.C. 2929.14(A)(5). R.C. 2929.17(J) specifically

authorizes imposition of a condition of community control that the offender obtains

employment.

       {¶ 13} We find potential assignment of error No. 1 not well-taken.

       {¶ 14} Under potential assignment of error No. 2, appellant contends that he

received ineffective assistance of counsel.

       {¶ 15} To prevail on a claim of ineffective assistance of counsel, a defendant must

prove two elements: “First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Proof of prejudice requires a showing “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three

of the syllabus. A defendant must establish both prongs of the standard to demonstrate

ineffective assistance of counsel. Strickland at 687.

       {¶ 16} Appellant was unable to identify any issue on which representation by trial

counsel was deficient and but for the trial counsel’s errors the outcome of the case would




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have been different. Accordingly, we find potential assignment of error No. 2 not well-

taken.

         {¶ 17} This court, as required under Anders, has undertaken its own independent

examination of the record to determine whether any issue of arguable merit is presented

for appeal. We have found none. Accordingly, we find this appeal is without merit. We

grant the motion of appellant’s counsel to withdraw as counsel and affirm the judgment

of the Wood County Court of Common Pleas. We order appellant to pay the costs of this

appeal pursuant to App.R. 24.

         {¶ 18} The clerk is ordered to serve all parties, including the defendant if he has

filed a brief, with notice of this decision.

                                                                         Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                          _______________________________
                                                              JUDGE
Arlene Singer, J.
                                                  _______________________________
Stephen A. Yarbrough, P.J.                                    JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE


              This decision is subject to further editing by the Supreme Court of
         Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
              version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.sconet.state.oh.us/rod/newpdf/?source=6.


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