[Cite as State v. Peltier, 2019-Ohio-569.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-21
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-187
                                                   :
 LARRY E. PELTIER, JR.                             :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 15th day of February, 2019.

                                              ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek,
Ohio 45432
      Attorney for Defendant-Appellant

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




WELBAUM, P.J.
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       {¶ 1} Defendant-appellant, Larry E. Peltier, Jr., appeals from his conviction in the

Champaign County Court of Common Pleas after he pled guilty to aggravated possession

of drugs, possession of drug abuse instruments, and illegal use or possession of drug

paraphernalia. On October 18, 2018, Peltier’s appellate 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),

asserting the absence of any non-frivolous issues for appeal. On October 31, 2018, this

court notified Peltier that his counsel found no meritorious claims to present on appeal

and granted him 60 days to file a pro se brief assigning any errors. Peltier, however, did

not file a pro se brief. After reviewing the entire record as prescribed by Anders, we find

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

affirmed.



                          Facts and Course of Proceedings

       {¶ 2} On September 7, 2017, the Champaign County Grand Jury returned a three-

count indictment charging Peltier with aggravated possession of drugs (fentanyl) in

violation of R.C. 2925.11(A), a felony of the fifth degree; possession of drug abuse

instruments in violation of R.C. 2925.12(A), a misdemeanor of the first degree; and illegal

use or possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a

misdemeanor of the fourth degree.         The indictment also included two forfeiture

specifications.

       {¶ 3} The aforementioned charges and specifications arose after Peltier’s mother

called the police and reported that her son had overdosed on what Peltier later admitted
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was fentanyl. While Peltier was receiving medical treatment, Peltier’s mother advised

the officers that she had removed a syringe from Peltier’s arm just prior to their arrival.

Upon searching Peltier’s bedroom, the officers found the syringe, as well as a cellophane

wrapper, several cut straws, cotton swabs, a syringe cap, and a capsule containing light

brown powder. Peltier was thereafter transported to the hospital where he provided a

urine sample that tested positive for fentanyl.

       {¶ 4} On October 18, 2017, Peltier appeared before the trial court and pled guilty

to all the indicted charges and specifications. After accepting Peltier’s guilty plea, the

trial court ordered a presentence investigation (“PSI”) and scheduled the matter for

sentencing on November 15, 2017. At sentencing, the trial court made findings under

R.C. 2929.13(B)(1)(b)(x) and (xi) that gave it discretion to impose a prison term for

Peltier’s fifth-degree-felony offense of aggravated possession of drugs.          However,

instead of sentencing Peltier to prison, the trial court ordered Peltier to pay court costs

and imposed three years of community control.           As part of the conditions of his

community control, Peltier was required to obey the law and not associate with individuals

who have a criminal background without permission from his probation officer.

       {¶ 5} On January 8, 2018, Peltier’s probation officer filed a Notice of Supervision

Violation with the trial court alleging that Peltier had violated multiple conditions of his

community control. Specifically, the notice alleged that on December 29, 2017, Peltier,

who did not have a valid driver’s license, operated a motor vehicle under the influence of

alcohol while his 13-year-old daughter and a female with a criminal background were

riding as passengers. The notice also alleged that Peltier did not request permission to

have contact with that female.
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       {¶ 6} On January 19, 2018, the trial court held a hearing on the merits of Peltier’s

alleged community control violations. At the outset of the hearing, Peltier indicated that

he intended to admit to all the alleged violations. Before Peltier’s admission, the trial

court informed Peltier that as a result of the violations, it could either return him to

community control or send him to prison. The trial court explained that if it returned him

to community control, the court could extend his supervision for a period not to exceed

five years or impose more restrictive sanctions. The trial court also explained that if it

decided to revoke community control, the court would impose 12 months in prison for the

aggravated possession of drugs charge, 3 months in jail for the possession of drug abuse

instruments charge, and 15 days in jail for the possession of drug paraphernalia charge,

and would order all the sentences to be served concurrently for a total term of 12 months

in prison.

       {¶ 7} After performing a thorough colloquy that ensured Peltier understood the

possible consequences of his admission, Peltier admitted to all the alleged community

control violations. Following his admission, the trial court found Peltier guilty of violating

community control and immediately proceeded to sentencing.

       {¶ 8} During the sentencing portion of the hearing, the trial court returned Peltier

to community control under the same conditions previously imposed, but with the added

condition that he complete the West Central Community Based Correctional Facility

Residential Treatment Program (“West Central Program”). The trial court also ordered

Peltier to pay the court costs previously imposed and the court costs and legal fees

associated with the community control violation proceedings.

       {¶ 9} In addition, the trial court advised Peltier at the sentencing hearing and in the
                                                                                          -5-


sentencing entry that if he violated community control again, the court could extend his

period of community control for a period not to exceed five years, impose a more

restrictive sanction, or sentence him to prison. The trial court also advised Peltier that if

it revoked community control and sentenced him to prison, the court would impose the

previously discussed 12-month prison term.

       {¶ 10} On April 19, 2018, the trial court received another Notice of Supervision

Violation from Peltier’s probation officer alleging that Peltier had violated a condition of

his community control. Specifically, the notice alleged that on April 18, 2018, Peltier

terminated his participation in the West Central Program.

       {¶ 11} On May 4, 2018, the trial court held a hearing on the merits of the alleged

community control violation. As he had done previously, Peltier initially advised the trial

court that he intended to admit to the alleged violation. The trial court then performed a

thorough colloquy to ensure that Peltier understood the possible consequences of

admitting to the violation. In doing so, the trial court referenced the same consequences

and 12-month prison term that it had discussed with Peltier during his first violation

hearing. After the trial court ensured that Peltier understood the possible consequences

of his admission, Peltier admitted to terminating his participation in the West Central

Program.    The trial court then found him guilty of violating community control and

immediately proceeded to sentencing.

       {¶ 12} During the sentencing portion of the hearing, the trial court indicated that it

had considered the community control violation report prepared by the Adult Parole

Authority and the statements of counsel and Peltier. The trial court also considered the

purposes and principles of sentencing in R.C. 2929.11 and the seriousness and
                                                                                          -6-


recidivism factors in R.C. 2929.12. In light of these considerations, the trial court revoked

Peltier’s community control and imposed a 12-month prison term with 85 days of jail time

credit. The trial court also ordered Peltier to pay the court costs and legal fees previously

ordered to be paid, as well as the court costs incurred as a result of Peltier’s second

community control violation.

       {¶ 13} With leave of this court, on August 13, 2018, Peltier filed a delayed appeal

from the trial court’s decision revoking his community control and sentencing him to 12

months in prison. Peltier was then appointed an appellate counsel who, as noted above,

filed a brief pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.



                                    Law and Analysis

       {¶ 14} According to Anders, this court must conduct an independent review of the

record to determine if the appeal at issue is wholly frivolous.       Id. at 744.   “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.” State v. Marbury, 2d Dist. Montgomery No.

19226, 2003-Ohio-3242, ¶ 8. 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., citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4.

       {¶ 15} If we determine the appeal is frivolous, we may grant counsel’s request to

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

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,
                                                                                          -7-

2d Dist. Champaign No. 2010 CA 13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.

However, “[i]f 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.” Marbury at ¶ 7, citing Pullen at ¶ 2.

       {¶ 16} In this case, Peltier’s appellate counsel has raised one potential assignment

of error for this court’s review. Specifically, counsel suggests that Peltier’s trial counsel

was ineffective in failing to avoid the aggravated possession of drugs charge by asserting

immunity under R.C. 2925.11(B)(2)(b). That statute provides, in relevant part, that a

“qualified individual” shall not be arrested, charged, prosecuted, convicted, or penalized

for a minor drug possession offense if the evidence on which the possession offense is

based is obtained as the result of the “qualified individual” experiencing an overdose and

needing medical assistance.           R.C. 2925.11(B)(2)(b).   Although the drug evidence

against Peltier was obtained as the result of him overdosing on fentanyl, counsel

nevertheless concedes that Peltier is not a “qualified individual” as defined by the statute

because, at the time of his overdose, Peltier was on community control sanctions for a

domestic    relations     case   in    the   Champaign    Municipal   Court.     See    R.C.

2929.11(B)(2)(a)(viii).

       {¶ 17} Regardless of counsel’s concession, we note that this court does not have

jurisdiction to consider the issue raised in counsel’s potential assignment of error. It is

well established that this court may only consider the order appealed from, which in this

case is the May 4, 2018 order revoking Peltier’s community control and sentencing him

to 12 months in prison. Peltier cannot collaterally attack his un-appealed conviction for

aggravated possession of drugs through an appeal of the trial court’s revocation of
                                                                                          -8-

community control. See State v. Ryan, 2d Dist. Greene No. 2008-CA-99, 2010-Ohio-

216, ¶ 4 (where the appellant “has appealed from the revocation of his community control

* * * [t]his is the only matter before us; we have no jurisdiction to consider any other

issues”); State v. Kelly, 2d Dist. Champaign No. 2004 CA 6, 2005-Ohio-3178, ¶ 20-21

(appellant’s claim that his trial counsel was ineffective in failing to object to certain

conditions of community control was untimely and not properly raised on appeal given

that the appeal was from the trial court’s order revoking community control); State v.

Grimes, 2d Dist. Montgomery No. 20746, 2005-Ohio-4510, ¶ 11. Therefore, counsel’s

potential assignment of error lacks merit.

      {¶ 18} That said, in conducting an independent review of the record, this court

found that when sentencing Peltier to prison, the trial court recommended that Peltier be

placed in intensive program prison (“IPP”). R.C. 2929.19(D) provides that “[i]f the court

recommends or disapproves placement [in IPP], it shall make a finding that gives its

reasons for its recommendation or disapproval.” This court has previously held that a

general statement indicating that the trial court based its decision to approve or

disapprove IPP after reviewing certain parts of the record (such as criminal history, PSI,

and facts and circumstances of the offense) does not satisfy the finding requirement in

R.C. 2929.19(D). See, e.g., State v. Allender, 2d Dist. Montgomery No. 24864, 2012-

Ohio-2963, ¶ 13-14, 23, 26; State v. Matthews, 2d Dist. Montgomery No. 26405, 2015-

Ohio-3388, ¶ 4-5, 14.

      {¶ 19} In this case, the trial court indicated that it decided to recommend Peltier for

IPP after reviewing “the nature of the community control violations.” Journal Entry of

Community Control Merits and Disposition (May 4, 2018), Champaign C.P. No. 2017-CR-
                                                                                        -9-


187, Docket No. 77, p. 5. Although the trial court discussed the nature of Peltier’s

community control violations during the sentencing hearing, we find that it could

nevertheless be argued that the trial court did not satisfy the finding requirement in R.C.

2929.19(D). However, even if the trial court did err in failing to comply R.C. 2929.19(D),

Peltier was not subject to any resulting prejudice because, as noted above, the trial court

recommended that Peltier be placed in IPP.

      {¶ 20} IPP “ ‘refers to several ninety-day programs, for which certain inmates are

eligible, that are characterized by concentrated and rigorous specialized treatment

services. An inmate who successfully completes an IPP will have his/her sentence

reduced to the amount of time already served and will be released on post-release

supervision for an appropriate time period.’ ” State v. Howard, 190 Ohio App.3d 734,

2010-Ohio-5283, 944 N.E.2d 258, ¶ 12 (2d Dist.), quoting the Ohio Department of

Correction and Rehabilitation website. Given that IPP benefits Peltier, no responsible

contention can be made that the trial court’s failure to make the required findings before

recommending IPP offers a basis for reversal. Simply stated, the trial court’s failure

amounts to, at worst, harmless error.

      {¶ 21} This court could not otherwise find any error of arguable merit that resulted

in prejudice to Peltier. Therefore, we agree with Peltier’s appellate counsel that, based

on the facts and relevant law, there are no issues with arguable merit to present on

appeal.



                                        Conclusion

      {¶ 22} The judgment of the trial court is affirmed.
                                                 -10-




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



FROELICH, J. and HALL, J., concur.



Copies sent to:

Jane A. Napier
Chris Beck
Larry E. Peltier, Jr.
Hon. Nick A. Selvaggio
