[Cite as State v. Landgraf, 2018-Ohio-195.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :  C.A. CASE NO.: 2017-CA-25
                                                    :
 v.                                                 :  T.C. NO. 2016-CR-619
                                                    :
 ANTHONY E. LANDGRAF                                :  (Criminal Appeal from
                                                    :  Common Pleas Court)
         Defendant-Appellant                        :
                                                    :
                                               ...........
                                                OPINION

                           Rendered on the 19th day of January, 2018.

                                               ...........

NATHANIEL LUKEN, Atty. Reg. No. 87864, Greene Co. Prosecutor’s Office, 61 Greene
Street, Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee


SAMANTHA BERKHOFER, Atty. Reg. No. 87370, 202 N. Limestone St., Ste. 250,
Springfield, Ohio 45502
      Attorney for Defendant-Appellant

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

DONOVAN, J.

        {¶ 1} This matter is before the Court on the April 26, 2017 Notice of Appeal of

Anthony E. Landgraf, filed by appointed counsel for Landgraf pursuant to Anders v.
                                                                                           -2-

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On October 3, 2017,

the State filed a “Notice of Intent not to File Response to Anders Brief.” Having found no

potential assignments of error having arguable merit, the judgment of the trial court is

affirmed.

       {¶ 2} Landgraf pled guilty on March 1, 2017 to one count of complicity to tampering

with coin machines, in violation of R.C. 2911.32(A) and 2923.03(A)(2), a felony of the fifth

degree, and he was sentenced to 11 months for the offense. In exchange for his plea,

a second count of possession of criminal tools was dismissed.

       {¶ 3} In his brief, counsel for Landgraf asserts that, after a review of the record, he

could ascertain no arguably meritorious issues to present on appeal. This Court, on

October 12, 2017, so advised Landgraf and granted him 60 days to file a pro se brief

assigning any errors for our review. No pro se brief has been received.

       {¶ 4} As potential assignments of error, counsel for Landgraf asserts the following:

       1. Whether the Guilty plea was made [k]nowingly, voluntarily and with the advice

       of his counsel?

       2. Whether the sentence imposed was disproportionate to the crime or that the

       Court had any duty to follow the sentencing recommendation of the State.

       {¶ 5} As this Court has previously noted:

              In State v. Marbury, Montgomery App. No. 19226, 2003-Ohio-3242,

       ¶ 7 and 8, we observed:

              “We are charged by Anders to determine whether any issues

       involving potentially reversible error that are raised by appellate counsel or

       by a defendant in his pro se brief are ‘wholly frivolous.’ [386 U.S. at 744, 87
                                                                                            -3-


          S.Ct. 1417, 18 L.Ed.2d 522.] If we find that any issue presented or which an

          independent analysis reveals is not wholly frivolous, we must appoint

          different appellate counsel to represent the defendant. State v. Pullen (Dec.

          6, 2002), Montgomery App. No. 19232 [2002-Ohio-6788].

                 “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 a defendant will ultimately prevail

          on that issue on appeal. An issue lacks arguable merit if, on the facts and

          law involved, no responsible contention can be made that it offers a basis

          for reversal. Pullen, supra.”

State v. Chessman, 161 Ohio App.3d 140, 2005-Ohio-2511, 829 N.E.2d 748, ¶ 15-17 (2d

Dist.).

          {¶ 6} “In general, a guilty plea waives all claims of error preceding the plea except

claims of ineffective assistance of counsel sufficient to cause the defendant's

guilty plea to be less than knowing and voluntary. State v. Kidd, 2d Dist. Clark No.

03CA43, 2004–Ohio–6784, ¶ 16.” State v. Guerry, 2d Dist. Clark No. 2015-CA-30, 2016-

Ohio-962, ¶ 6.

          {¶ 7} Having performed our duty, under Anders v. California, of independent

review of the record, we have found nothing to suggest that Landgraf’s guilty plea was

less than knowing and voluntary. At the hearing, Landgraf indicated to the court that he

takes several medications that can occasionally affect his ability to think clearly. He

further indicated that he did not take his medications on the morning of the hearing
                                                                                          -4-


because he was in a hurry to get to court. Landgraf advised the court that he did not feel

under the influence of his medications at the hearing. Counsel for Landgraf stated that

he and his client “had extensive conversations out in the hallway before we came into the

courtroom, and Mr. Landgraf certainly understood what was going on today, and I believe

that there’s no problem with his cognition.” When asked by the court if he was clear of

mind and capable of understanding the proceedings, Landgraf responded affirmatively.

Landgraf further indicated that his counsel answered all of his questions and that he was

satisfied with his representation. Landgraf indicated that his plea was being entered

voluntarily without improper influence, and that he understood that his plea was an

admission of guilt. The record further reflects a thorough Crim. R. 11 plea colloquy, and

that Landgraf indicated that he understood the rights he waived by pleading guilty, and

that he was subject to a sentence of up to one year.

       {¶ 8} The court indicated to Landgraf that “the State’s going to recommend

Community Control, and they’re going to stand behind that and not change that.” The

court further indicated that it was “not bound like a prosecutor is. I can either follow that

recommendation or not follow that recommendation,” and the Court ascertained

Landgraf’s understanding. The court ordered a pre-sentence investigation. The court

concluded that Landgraf’s plea was “voluntary, intelligent and knowingly made.” Based

upon our thorough review of the record, we conclude that Counsel for Landgraf’s first

potential assignment of error is wholly frivolous.

       {¶ 9} Regarding Landgraf’s sentence, as this Court recently noted:

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

       authorized statutory range, and the court is not required to make any
                                                                                      -5-


      findings or give its reasons for imposing maximum or more than

      minimum sentences.” State v. King, 2013–Ohio–2021, 992 N.E.2d 491, ¶

      45 (2d Dist.). However, in exercising its discretion, a trial court must

      consider the statutory criteria that apply to every felony offense, including

      those set out in 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.

             ***

             The standard set forth in R.C. 2953.08(G)(2) applies to all challenges

      involving sentencing. Under that standard, we may vacate or modify a

      sentence only if we find, by clear and convincing evidence, that the

      sentence is contrary to law or that the record does not support the trial

      court’s findings under certain statutes * * *.

State v. Terry, 2d Dist. Clark No. 2016-CA-65, 2017-Ohio-7266, ¶ 11, 16.

      {¶ 10} At sentencing, the court indicated in part as follows:

             The Court’s considered the statements [of] the parties, the pre-

      sentence report, the purposes and principles of sentencing and balance[d]

      the serious and recidivism factors pursuant to 2929.12.

             Because this is offense is [sic] a fifth degree felony, the Court’s

      required to consider the (B)(1)(a) and (B)(1)(b) factors of 2929.13.

             I find under (B)(1)(a), that you have a prior conviction for felony

      offenses, and, therefore, the Court retains discretion to impose a sentence

      in this case.
                                                                                         -6-


              In addition, under (B)(1)(b), I find that you have previously served a

       term of imprisonment; therefore, the Court finds that a prison term is

       consistent with the purposes and principles of sentencing, that you’re not

       amenable to available Community Control

              The Court further finds that a combination of Community Control

       sanctions would demean the seriousness of your conduct, and its impact,

       and this sentence is commensurate to the seriousness of your conduct, and

       a prison sentence does not place an unnecessary burden on state

       government resources.

              I will say that your Counsel did give me some thought about the fact

       that you took responsibility and plead guilty, and, therefore, the Court’s

       going to impose an 11-month sentence for the offense of Complicity of

       Tampering with Coins [sic], a felony of the fifth degree, and order you to be

       sentenced to the Department of Rehabilitation Correction, Correctional

       Reception Center.

       {¶ 11} R.C. 2929.14(A)(5) provides that for a felony of the fifth degree, the “prison

term shall be six, seven, eight, nine, ten, eleven, or twelve months.” Landgraf’s sentence

is not contrary to law, and we conclude that Landgraf’s second potential assignment of

error lacks arguable merit.

       {¶ 12} Having found no arguable issues for review, Landgraf’s appeal is wholly

frivolous, and the judgment of the trial court is affirmed.

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

HALL, J. and TUCKER, J. concur.
                         -7-




Copies mailed to:

Nathaniel Luken
Samantha L. Berkhofer
Anthony E. Landgraf
Hon. Steven A. Wolaver
