[Cite as State v. Gibbs, 2013-Ohio-4252.]


                                 IN THE COURT OF APPEALS OF OHIO
                                    FOURTH APPELLATE DISTRICT
                                       WASHINGTON COUNTY

STATE OF OHIO,                                                 :

         Plaintiff-Appellee,                                   :
                                                                                  Case No. 13CA11
         vs.                                                   :
                                                                                  DECISION AND
                             1
JUSTIN T. GIBBS, JR.,                                          :                  JUDGMENT ENTRY

         Defendant-Appellant.                                  :                  RELEASED 09/25/2013


                                               APPEARANCES:2

Steven H. Eckstein, Washington Court House, Ohio, for Appellant.


Hoover, J.


         {¶ 1} Justin T. Gibbs (hereinafter “Gibbs”) appeals from the sentencing entry of the

Washington County Common Pleas Court. After pleading guilty to one count of theft, Gibbs

was sentenced to 11 months in prison. Gibbs’ appellate counsel has advised us that he has

reviewed the record and can discern no meritorious claims on appeal. Appellate counsel has thus

moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967). After independently reviewing the record, we agree a meritorious claim does not exist

for appeal. Accordingly, we find this appeal wholly frivolous, grant the request to withdraw, and

affirm the judgment of the trial court.

         {¶ 2} A Washington County grand jury indicted Gibbs on one count of theft, a fifth

degree felony in violation of R.C. 2913.02(A)(1), and one count of misuse of credit cards, a first
1
  On March 29, 2013, the trial court filed an amended sentencing entry for the sole purpose of correcting appellant’s
name. On April 3, 2013, appellant filed an amended notice of appeal noting that the original sentencing entry
erroneously included a “Jr.” after his name. However, it is this Court’s practice to use the same case caption as used
by the trial court in the entry being appealed, even if it is erroneous.
2
  The State of Ohio has not entered an appearance or otherwise participated in this appeal.
Washington App. No. 13CA11                                                                          2


degree misdemeanor in violation of R.C. 2913.21(B)(2). Gibbs initially entered a plea of not

guilty to both counts. Gibbs subsequently entered into a plea agreement with the State of Ohio,

wherein he agreed to change his plea to guilty as to the theft charge. In exchange for the guilty

plea, the State agreed to dismiss the misuse of credit cards charge and to recommend a sentence

of community control. The trial court dismissed the remaining charge, but Gibbs was sentenced

to 11 months in prison on the theft charge. Gibbs was subsequently released on bond.

       {¶ 3} Although Gibbs has appealed his conviction and sentence, his appellate counsel

has filed both a motion to withdraw and an Anders brief.

       In Anders, the United States Supreme Court held that if counsel determines after a

       conscientious examination of the record that the case is wholly frivolous, counsel

       should so advise the court and request permission to withdraw. Counsel must

       accompany the request with a brief identifying anything in the record that could

       arguably support the appeal. [Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d

       493]. The client should be furnished with a copy of the brief and given time to

       raise any matters the client chooses. Id. Once these requirements are met, we

       must fully examine the proceedings below to determine if an arguably meritorious

       issue exists. Id. If so, we must appoint new counsel and decide the merits of the

       appeal. Id. If we find the appeal frivolous, we may grant the request to withdraw

       and dismiss the appeal without violating federal constitutional requirements or

       may proceed to a decision on the merits if state law so requires. Id.

State v. Lester, 4th Dist. Vinton No. 12CA689, 2013-Ohio-2485, ¶ 3.
Washington App. No. 13CA11                                                                            3


       {¶ 4} In the case sub judice, Gibbs’ counsel has satisfied the requirements of Anders.

While Gibbs has not filed a pro se brief, his appellate counsel has identified the following

potential assignment of error:

       THE RECORD FAILS TO SUPPORT THE IMPOSITION OF AN ELEVEN
       MONTH SENTENCE FOR THE FELONY OF THE FIFTH DEGREE.
Thus, we will examine appellate counsel’s potential assignment of error and the entire record to

determine if an arguably meritorious issue exists or if this appeal is wholly frivolous.


       {¶ 5}    Appellate counsel asserts that the trial court possibly erred when it sentenced

Gibbs to 11 months in prison on the fifth degree felony charge of theft. Instead, Gibbs’ appellate

counsel contends that, perhaps, the trial court should have imposed a lesser sentence.

       {¶ 6}    The Supreme Court of Ohio has set forth the standard of review on a trial court’s

imposition of a felony sentence:

       [A]ppellate courts must apply a two-step approach when reviewing felony

       sentences. First, they must examine the sentencing court’s compliance with all

       applicable rules and statutes in imposing the sentence to determine whether the

       sentence is clearly and convincingly contrary to law. If this first prong is

       satisfied, the trial court’s decision in imposing the term of imprisonment is

       reviewed under the abuse-of-discretion standard. State v. Kalish, 120 Ohio St.3d

       23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 26.

       {¶ 7} If the trial court’s sentence is outside the permissible statutory range, the sentence

is clearly and convincingly contrary to law. Kalish at ¶ 15. In addition, the trial court must

consider R.C. 2929.11 and R.C. 2929.12 before imposing a sentence. Id. at ¶ 13. Furthermore,

the trial court must be guided by the statutes that are specific to the case itself, and must “be

mindful of imposing the correct term of postrelease control.” Id.
Washington App. No. 13CA11                                                                           4


       {¶ 8} Here, the trial court convicted Gibbs of theft under R.C. 2913.02(A)(1), a fifth

degree felony, and sentenced him to 11 months in prison. Under R.C. 2929.14(A)(5), the range

of statutory prison terms for a fifth degree felony is six to twelve months. Thus, the trial court

imposed a sentence within the permissible statutory range. Furthermore, at the sentencing

hearing and in its sentencing entry, the trial court specifically noted that it considered the

principles and purposes of sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors set forth in R.C. 2929.12. In addition, the trial court properly notified Gibbs at

his sentencing hearing, and in its sentencing entry, that he is subject to a period of postrelease

control for up to three years following his release from imprisonment if the parole board

determines that postrelease control is necessary.

       {¶ 9} Appellate counsel cites no failure of the trial court to comply with any other

applicable rules and statutes; and we have found none from our review of the record. Therefore,

the claim that Gibbs’ prison sentence is clearly and convincingly contrary to law has no merit.

       {¶ 10} Next, we address whether the trial court abused its discretion in imposing Gibbs’

sentence. The term “abuse of discretion” implies that the court’s attitude is arbitrary,

unreasonable, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980). As we have previously explained in State v. Davis, 4th Dist. Highland No. 06CA21,

2007-Ohio-3944, ¶ 42, quoting State v. Elswick, 11th Dist. Lake No. 2006-L-075, 2006-Ohio-

7011, ¶ 49:

       An “abuse of discretion” has * * * been found where a sentence is greatly

       excessive under traditional concepts of justice or is manifestly disproportionate to

       the crime or the defendant. * * * Where the severity of the sentence shocks the

       judicial conscience or greatly exceeds penalties usually exacted for similar
Washington App. No. 13CA11                                                                            5


       offenses or defendants, and the record fails to justify and the trial court fails to

       explain the imposition of the sentence, the appellate court’s [sic] can reverse the

       sentence. This by no means is an exhaustive or exclusive list of the circumstances

       under which an appellate court may find that the trial court abused its discretion in

       the imposition of [a] sentence in a particular case.

       {¶ 11} We find that the trial court did not abuse its discretion. Here, we have found

nothing in the record to support the notion that Gibbs’ sentence is “greatly excessive under

traditional concepts of justice or is manifestly disproportionate” under the circumstances. Rather

the trial court went to great lengths to explain the sentence, and gave careful and substantial

deliberation to the relevant statutory considerations. For instance, the trial court noted that the

crime was more serious because Gibbs had a relationship with the victim that facilitated the

offense. The court also noted that Gibbs was more likely to recidivate given his extensive

criminal history and his demonstrated pattern of drug and alcohol abuse related to the offense.

The trial court also noted that Gibbs’ violated the conditions of his bond by not following the

judgments and orders of the trial court. Finally, the trial court concluded that Gibbs was not

amenable to any available community control sanctions. Simply put, the record supports that the

trial court’s decision was not unreasonable, arbitrary, nor unconscionable.

       {¶ 12} In conclusion, we find no merit in the potential assignment of error identified by

Gibbs’ appellate counsel. Furthermore, after reviewing the proceedings below, we have found

no other potential issues for appeal. Because we agree that Gibbs’ appeal is wholly frivolous, we

grant appellate counsel’s motion to withdraw and affirm the judgment of the trial court.

                                                                          JUDGMENT AFFIRMED.
Washington App. No. 13CA11                                                                        6


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Washington
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.

                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
