[Cite as State v. Stewart, 2011-Ohio-181.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 09CA33 

 : 

 vs. : Released: January 13, 2011

 : 

BRANDON T. STEWART, : DECISION AND JUDGMENT 

: ENTRY

Defendant-Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Warren N. Morford, Jr., South Point, Ohio, for Appellant. 

J.B. Collier, Jr., Lawrence County Prosecutor, and Jeffrey M. Smith, 

Lawrence County Assistant Prosecutor, Ironton, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, P.J.: 

{¶1} Defendant-Appellant, Brandon T. Stewart, appeals the decision 

of the Lawrence County Court of Common Pleas that found him guilty of 

violating the terms of his previously-imposed community control sanctions 

and that sentenced appellant to a three-year prison term to be served 

consecutively to a prison sentence appellant received in a different case. 

Appellant’s counsel, after reviewing the record, states he can find no 
Lawrence App. No. 09CA33 2

meritorious claim for appeal and, pursuant to Anders v. California, requests 

permission to withdraw from the case. However, counsel presented one 

potential assignment of error for us to consider. Counsel suggests that the 

trial court erred by sentencing appellant to consecutive prison terms. 

Because we find this potential assignment of error to be wholly frivolous, we 

grant counsel’s request to withdraw and affirm the decision of the trial court. 

I. 

FACTS 

{¶2} On October 1, 2008, the trial court convicted appellant of 

burglary, in violation of R.C. 2911.02(A)(3), and of theft of a dangerous 

drug, in violation of R.C. 2913.02(A)(1). The court sentenced appellant to 

concurrent prison terms of four years for the robbery offense and of 

seventeen months for the theft of dangerous drug offense. On February 9, 

2009, the court granted appellant judicial release. 

{¶3} On September 20, 2009, appellant committed new criminal 

offenses. At a November 4, 2009 hearing, appellant waived presentment of 

the charges to a grand jury and agreed to proceed under a bill of 

information.1

 

 

1

 The burglary and resisting arrest charges were assigned a new case number, 09CR289. The trial court 

appears to have combined the plea and sentencing hearing for that case number with the case number that 

gives rise to the instant appeal, 08CR285. We further note that appellant filed a notice of appeal under 

case number 09CR289, but it apparently was dismissed for failure to prosecute. 
Lawrence App. No. 09CA33 3

{¶4} On November 18, 2009, the court held a hearing regarding the 

alleged community control violations that apparently occurred as a result of 

appellant’s new criminal offenses and also held a plea and sentencing 

hearing regarding the new charges. The state recited that the parties had 

reached a plea agreement that provided appellant would serve three years in 

prison for the community control violation to be served consecutively to a 

three-year sentence on the new burglary charge, to be served concurrently to 

a sixty-day jail term on the new resisting arrest charge. Appellant’s counsel 

indicated that the prosecutor accurately recited the plea agreement. The 

court then sentenced appellant in accordance with the plea agreement. The 

court further informed appellant that it would entertain a motion for judicial 

release after appellant serves four years. 

II. 

Anders Brief 

{¶5} Appellant’s counsel has filed an Anders brief in this action. 

Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 

493, counsel may ask permission to withdraw from a case when counsel has 

conscientiously examined the record, can discern no meritorious claims for 

appeal, and has determined the case to be wholly frivolous. Id. at 744; State 

v. Adkins, Gallia App. No. 03CA27, 2004-Ohio-3627, at ¶8. Counsel’s 
Lawrence App. No. 09CA33 4

request to withdraw must be accompanied with a brief identifying anything 

in the record that could arguably support the client’s appeal. Anders, 386 

U.S. at 744; Adkins at ¶8. Further, counsel must provide the defendant with 

a copy of the brief and allow sufficient time for the defendant to raise any 

other issues, if the defendant chooses to do so. Id. Once counsel has 

satisfied these requirements, the appellate court must conduct a full 

examination of the trial court proceedings to determine if meritorious issues 

exist. If the appellate court determines that the appeal is frivolous, it may 

grant counsel’s request to withdraw and address the merits of the case 

without affording the appellant the assistance of counsel. Id. If, however, 

the court finds the existence of meritorious issues, it must afford the 

appellant assistance of counsel before deciding the merits of the case. 

Anders, 386 U.S. at 744; State v. Duran, Ross App. No. 06CA2919, 2007-

Ohio-2743, at ¶7. 

{¶6} In the current action, Appellant’s counsel concludes the appeal is 

wholly frivolous and has asked permission to withdraw. Pursuant to Anders,

counsel has filed a brief raising one potential assignment of error for this 

court to consider. 

III. 

Potential Assignment of Error 
Lawrence App. No. 09CA33 5

“The defendant/appellant, Brandon T. Stewart, may assert as an 

assignment of error, that, according to State v. Foster, 2006-

Ohio-856, the trial court failed to conduct the requisite judicial 

fact finding prior to imposing sentences beyond the minimum, 

concurrent sentences dictated or mandated by the Ohio 

statutory sentencing scheme and a jury verdict alone, or as in 

this case, an admission to violation of community control 

sanctions and guilty pleas to a two (2) count Bill of 

Information. Stewart would assert that the Foster Court 

invalidated R.C. 2929.14(B)(2), (C) and (E)(4) as violative of 

the Federal Sixth Amendment Rights. These constitutionally 

infirm Code sections required impermissible judicial factfinding in order to impose sentences beyond the minimum, 

concurrent sentences authorized by the jury verdict alone.” 

IV. 

ANALYSIS 

 {¶7} We agree with appellant’s counsel that an appeal based upon the 

trial court’s imposition of consecutive sentences would be wholly frivolous. 

Appellant’s potential assignment of error asserts that the trial court failed to 

comply with R.C.2929.14 prior to imposing consecutive sentences. 

Appellant contends that the statute requires the trial court to enter certain 

findings before imposing a consecutive sentence. However, the Ohio 

Supreme Court has flatly rejected this argument. See State v. Foster, 109 

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the 

syllabus. Sentencing courts are “no longer required to make findings or give 

their reasons for imposing maximum, consecutive, or more than the 

minimum sentences.” Id. “Foster’s result was to sever the portions of the 
Lawrence App. No. 09CA33 6

statute that required judicial fact-finding to warrant a sentence beyond the 

minimum term * * *.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 

896 N.E.2d 124, at ¶11. Thus, a court need not “provide any reasons in 

imposing its sentence.” Id. at ¶12. As the Kalish court explained: 

“[W]hen imposing consecutive sentences prior to Foster,

the trial court had to find that the sentence was necessary to 

protect the public and was not disproportionate to the 

seriousness of the offense and the danger the defendant posed to 

the public. R.C. 2929.14(E)(4). After Foster, a trial court can 

simply impose consecutive sentences, and no reason need be 

stated. Thus, a record after Foster may be silent as to the 

judicial findings that appellate courts were originally meant to 

review under R.C. 2953.08(G)(2).” 

Id. 

 {¶8} Our independent review of the record reveals no meritorious 

issues for appeal.2

 Accordingly, we hereby grant counsel’s motion to 

withdraw and affirm the trial court’s judgment. 

JUDGMENT AFFIRMED. 

 

2

 We observe at the sentencing hearing the trial court advised appellant that it would entertain a motion for 

judicial release after appellant serves four years. However, it does not appear that appellant would be 

eligible to file a motion for judicial release until he serves at least five years. The trial court sentenced 

appellant to two, three-year prison terms to be served consecutively, for a total of six years. Six years is his 

“stated prison term.” See R.C. 2929.01(FF). R.C. 2929.20(C)(3) does not permit an offender with a sixyear stated prison term to file a motion for judicial release until the offender serves at least five years. 

Because the trial court’s statement regarding judicial release appears gratuitous and did not induce 

appellant to plead guilty (as it occurred during sentencing and after appellant had entered his guilty pleas), 

we have determined that the court’s apparent misstatement would not provide a meritorious ground for 

appeal.
Lawrence App. No. 09CA33 7

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellant 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 Lawrence 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 proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier 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 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. 

Exceptions. 

Harsha, J. and Abele, J.: Concur in Judgment and Opinion. 

 For the Court, 

 

BY: _________________________ 

 Matthew W. McFarland 

 Presiding Judge 
Lawrence App. No. 09CA33 8

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.