[Cite as State v. Mann, 2013-Ohio-2133.]


                                      COURT OF APPEALS
                                  COSHOCTON COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



STATE OF OHIO                              :       JUDGES:
                                           :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                 :       Hon. Sheila G. Farmer, J.
                                           :       Hon. John W. Wise, J.
-vs-                                       :
                                           :
LANCE W. MANN                              :       Case No. 2012CA0018
                                           :
        Defendant-Appellant                :       OPINION




CHARACTER OF PROCEEDING:                           Appeal from The Court of Common
                                                   Pleas, Case No. 11-CR-0091



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  May 22, 2013




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellee

NO APPEARANCE                                      FREDERICK A. SEALOVER
                                                   45 N. Fourth Street
                                                   P. O. Box 2910
                                                   Zanesville, OH 43702-2910
Coshocton County, Case No. 2012CA0018                                                     2

Farmer, J.

       {¶1}   Appellant, Lance W. Mann, appeals his conviction and sentence from the

Coshocton County Court of Common Pleas. Appellant was convicted of five counts of

breaking and entering, in violation of R.C. 2911.13(A) and one count of breaking and

entering in violation of R.C. 2911.13(B). All counts were felonies of the fifth degree.

       {¶2}   Appellant entered guilty pleas to these counts as part of a plea agreement

wherein other counts from his indictment were dismissed. Further, as part of the plea

agreement, the State agreed to recommend a sentence of ten months with all

sentences to be served concurrently.        The trial court honored the agreement and

sentenced Appellant to an aggregate term of ten months. At the time of sentencing, the

trial court advised Appellant he should appeal his sentence because Appellant was not

granted community control. The trial court indicated it believed the law was unsettled as

to whether someone in Appellant’s position could receive a prison sentence for a felony

of the fifth degree. A timely notice of appeal was filed.

       {¶3}   In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines
Coshocton County, Case No. 2012CA0018                                                                        3


that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

         {¶4}    Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth one proposed

assignment of error.          Appellant has not filed a pro se brief raising any additional

assignments of error. For the reasons which follow, we affirm the judgment of the trial

court:

                                                      I.

         {¶5}    In his only potential assignment of error, Appellant argues the trial court

erred in failing to impose a community control sanction for a felony of the fifth degree as

required by R.C. 2929.13(B)(1)(a).

         {¶6}    R.C. 2929.131 governs sentencing guidelines for various specific offenses

and degrees of offenses and provides in relevant part,



                 (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if

         an offender is convicted of or pleads guilty to a felony of the fourth or fifth

         degree that is not an offense of violence, the court shall sentence the

         offender to a community control sanction of at least one year's duration if

         all of the following apply:


1
 We look to the version of R.C. 2929.13 which was in effect at the time of Appellant’s sentencing. We note R.C.
2929.13 was amended effective March 22, 2013. Under either version, Appellant would not be entitled to a
presumption of community control due to his prior felony convictions. The result in this case would be the same
under either version of the statute.
Coshocton County, Case No. 2012CA0018                                                 4


              (i) The offender previously has not been convicted of or pleaded

       guilty to a felony offense or to an offense of violence that is a

       misdemeanor and that the offender committed within two years prior to the

       offense for which sentence is being imposed.

              (ii) The most serious charge against the offender at the time of

       sentencing is a felony of the fourth or fifth degree.

              (iii) If the court made a request of the department of rehabilitation

       and correction pursuant to division (B)(1)(c) of this section, the

       department, within the forty-five-day period specified in that division,

       provided the court with the names of, contact information for, and program

       details of one or more community control sanctions of at least one year's

       duration that are available for persons sentenced by the court.



       {¶7}   The record reflects that Appellant admitted at the sentencing hearing that

he has past felony convictions. Accordingly, the presumption in favor of community

control sanctions does not apply to Appellant. R.C. 2929.13(B)(1)(a)(i).

       {¶8}   It appears the trial court believed an argument existed as to whether the

prior felony conviction had to include a prior prison sentence in order to negate the

community control presumption. The statute does not require a prior prison sentence to

avoid the presumption of community control. Rather, the statute requires only a prior

felony conviction.

       {¶9}   Appellant’s proposed assignment of error is overruled.
Coshocton County, Case No. 2012CA0018                                               5


      {¶10} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that no arguably meritorious claims exist upon which to base

an appeal.   Hence, we find the appeal to be wholly frivolous under Anders, grant

counsel's request to withdraw, and affirm the judgment of the Coshocton County Court

of Common Pleas.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                          _s/ Sheila G. Farmer______________



                                          s/ William B. Hoffman_____________



                                          s/ John W. Wise_________________

                                                        JUDGES




SGF/as 506
[Cite as State v. Mann, 2013-Ohio-2133.]


                IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :
                                              :
        Plaintiff - Appellee                  :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
LANCE W. MANN                                 :
                                              :
        Defendant - Appellant                 :        CASE NO. 2012CA0018




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed. Costs

to appellant.




                                              _s/ Sheila G. Farmer______________



                                              s/ William B. Hoffman_____________



                                              s/ John W. Wise_________________

                                                          JUDGES
