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Date: 04-27-2022

Case Style:


Case Number: 2018-CA-14

Judge: Michael T. Hall



Criminal Appeal from Common Pleas Court

Plaintiff's Attorney: ANDREW P. PICKERING

Defendant's Attorney:

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Dayton, Ohio - Criminal Defense lawyer represented defendant with appealing from his conviction and sentence.

The record reflects that police stopped Strawsburg for a traffic violation.
During the stop, he was found to have a suspended license. An inventory search of his
car resulted in the discovery of methamphetamine. (Plea Tr. at 3-4.) Strawsburg pled
guilty to the charge set forth above, and the State recommended community control
sanctions. After reviewing a PSI report, the trial court rejected the recommendation and
imposed a ten-month prison sentence.
{¶ 4} In his Anders brief, appointed appellate counsel identifies three potential
issues for review but concludes that they lack arguable merit. First, counsel addresses
whether the trial court complied with Crim.R. 11 during the plea hearing. Second, counsel
questions whether the trial court considered the statutory principles and purposes of
sentencing and the seriousness and recidivism factors. Third, counsel analyzes whether
the trial court erred in rejecting community control.
{¶ 5} Upon review, we agree with counsel’s assessment that raising the foregoing
issues would be frivolous. The trial court satisfied its responsibilities under Crim.R. 11
during the plea hearing. It fully complied with Crim.R. 11(C)(2)(c) with regard to
Strawsburg’s constitutional rights. As for Crim.R. 11(C)(2)(a) and (b), which involve nonconstitutional rights, the only possible issue we have found involves the trial court’s
obligation to tell Strawsburg that upon accepting his plea it could “proceed with judgment
and sentence.” See Crim.R. 11(C)(2)(b). We have not found this specific advisement in
the plea-hearing transcript. On this record, the omission was non-prejudicial, however,
because the plea agreement provided for the preparation of a PSI report and the trial
court ordered a pre-sentence investigation, continued bond, and continued sentencing
for three weeks. (Plea Tr. at 8.) In addition, the plea form Strawsburg signed did advise
him that upon acceptance of his plea, the trial court could impose sentence immediately.
(Doc. # 10 at 3.) Because the trial court postponed sentencing and the plea form
contained the proper advisement, we see no possible prejudice stemming from the trial
court's failure to tell Strawsburg that it could proceed immediately with sentencing. We
find substantial compliance with Crim.R. 11(C)(2)(b). Any argument that the trial court’s
omission resulted in a prejudicially-defective plea is frivolous. Compare State v. Reed, 2d
Dist. Montgomery No. 27215, 2017-Ohio-7001, ¶ 8 (finding no non-frivolous issue for
appeal under similar circumstances).
{¶ 6} We also see no non-frivolous issue with regard to the trial court’s
consideration of the sentencing factors in R.C. 2929.11 and R.C. 2929.12. Although the
trial court did not explicitly mention these factors, on a silent record it is presumed to have
considered them. State v. Atchison, 2d Dist. Clark No. 2017-CA-76, 2018-Ohio-2419,
¶ 23. In addition, the trial court’s judgment entry noted that it had considered “the
principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and
then balanced the seriousness and recidivism factors under Ohio Revised Code Section
2929.12.” (Doc. # 12 at 1.)
{¶ 7} The trial court’s failure to impose community control sanctions also does not
present a non-frivolous issue. Although the State recommended community control as
part of the plea agreement, the trial court observed that Strawsburg had “a prior prison
term, two prior felony offenses, six prior OVI convictions, and on this particular case he
was operating a motor vehicle while under suspension with methamphetamine in the
vehicle.” (Sentencing Tr. at 4.) Under these circumstances, the trial court expressed
concern “about the safety of the community” and elected to impose a ten-month prison
sentence. (Id. at 4-5.) The trial court also noted in its judgment entry that it had discretion
to impose a prison sentence because Strawsburg had served a prior prison term. (Doc.
# 12 at 1.) The record fully supports the trial court’s sentencing decision, and it had the
authority to reject the State’s recommendation. State v. Barker, 2d Dist. Greene No.
09CA1, 2009-Ohio-5036, ¶ 1, 9-11 (finding no non-frivolous issue for appeal where the
trial court rejected the State’s recommendation of community control and imposed a
prison term).
{¶ 8} In addition, our review of the Ohio Department of Rehabilitation and
Correction's website confirms that Strawsburg is no longer an inmate, nor is he subject to
post-release control. See State v. Erdman, 2d Dist. Montgomery No. 25814, 2014-Ohio2997, ¶ 3 (taking judicial notice appellant's name is not listed on the ODRC website).
Therefore, any issues related to the imposition of sentence or to the serving of his
sentence are moot and without arguable merit.

Outcome: Finally, we have conducted an independent examination of the record as
required by Anders and have found no non-frivolous issues for review. Accordingly, we affirm the judgment of the Clark County Common Pleas Court.

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