[Cite as State v. Allen, 2019-Ohio-1253.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

CLAYTON ALLEN 

Defendant-Appellant 

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Appellate Case No. 2018-CA-60 

Trial Court Case No. 2017-CR-557 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 5th day of April, 2019. 

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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark 

County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502

 Attorney for Plaintiff-Appellee 

 

BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 West Fourth Street, Suite 250, Dayton, 

Ohio 45402 

 Attorney for Defendant-Appellant 

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TUCKER, J. 

{¶ 1} Clayton Allen appeals from his conviction, on his guilty pleas, of aggravated 

trafficking, having weapons while under disability, and illegal conveyance. Counsel has 

filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 

L.Ed.2d 493 (1967). This filing triggered our independent review to determine whether 

non-frivolous appellate issues exist. This review has not revealed any non-frivolous 

issues. Accordingly, the trial court’s judgment will be affirmed. 

Facts and Procedural History 

{¶ 2} Appellant, Clayton Allen, was indicted on five counts as follows: aggravated 

trafficking in drugs in violation of R.C. 2925.03(A)(2); aggravated possession of drugs in 

violation of R.C. 2925.11(A); aggravated possession of drugs in violation of R.C. 

2925.11(A); having weapons while under disability in violation of R.C. 2923.13(A)(3); and 

illegal conveyance of drugs of abuse onto the grounds of a correctional facility in violation 

of R.C. 2921.36(A)(2). The indictment also included a forfeiture specification. Allen 

ultimately pleaded guilty to Count 1 (aggravated trafficking), Count 4 (weapons under 

disability), and Count 5 (illegal conveyance), all third degree felonies. Allen additionally 

agreed to forfeit the property set forth in the forfeiture specification. The possession 

counts were dismissed. The trial court ordered the completion of a presentence 

investigation report (PSI), and a sentencing hearing was scheduled. 

{¶ 3} The trial court sentenced Allen to 24 months of imprisonment on each count. 

The trial court further ordered that Counts 1 and 5 be served concurrently but that Count 
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4 be served consecutively, resulting in a 48 month prison term. The trial court, consistent 

with the parties’ agreement, ordered the forfeiture of the property included in the forfeiture 

specification. This appeal follows. Appellate counsel was appointed to represent Allen. 

{¶ 4} Counsel filed an Anders brief indicating he could find no non-frivolous issues 

for appellate review. By separate motion, counsel has requested leave to withdraw as 

Allen’s counsel. We informed Allen of the filing of the Anders brief and advised him of 

his right to file a pro se brief within 60 days of the Anders notice. Allen has not filed a 

brief. 

Anders Standard 

{¶ 5} An appellate court, upon the filing of an Anders brief, has a duty to determine, 

“after a full examination of the proceedings,” whether the appeal is, in fact, “wholly 

frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 

U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based 

upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d 

Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one 

about which, “on the facts and law involved, no responsible contention can be made that 

offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-

Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders 

brief and appoint new counsel to represent the defendant. 

Anders Review

{¶ 6} Counsel, consistent with his duties under Anders, suggests as possible 
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assignments of error that the trial court’s imposition of a consecutive sentence was 

contrary to law and that trial counsel rendered ineffective assistance. Counsel 

concluded, however, that an argument concerning either issue would be wholly frivolous. 

Based upon our independent review, we agree. 

{¶ 7} Although there is a presumption favoring concurrent sentences, a trial court 

may impose consecutive service if it makes the findings required by R.C. 2929.14(C)(4) 

at the sentencing hearing and incorporates these findings into the sentencing entry. A 

trial court, however, has no obligation to articulate its reasoning regarding the consecutive 

findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. 

Counsel points out that the trial court’s consecutive findings were not as precise as they 

might have been. Nonetheless, all the required findings were made. The trial court, as 

required by R.C. 2929.14(C)(4), made the necessary initial findings that consecutive 

service was necessary to protect the public from future crime or to punish the offender 

and that consecutive service was not disproportionate to the seriousness of Allen’s 

conduct and the danger he posed to the public. The trial court, as mandated by R.C. 

2929.14(C)(4)(c), made the required additional finding that, based upon Allen’s criminal 

history, consecutive service was necessary to protect the public from future crime. 

These findings were sufficient for the imposition of a consecutive sentence. The trial 

court also found, under R.C. 2929.14(C)(4)(a), that Allen committed multiple offenses 

while awaiting trial or sentencing, but, as pointed out by counsel, this finding was not 

supported by the record. However, exclusion of this finding was not fatal to the 

imposition of consecutive service because, as noted, the required R.C. 2929.14(C)(4) 

preliminary findings were made and the trial court, as mandated by R.C. 2929.14(C)(4)(c), 
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determined that Allen’s criminal history made the imposition of consecutive sentences 

necessary to protect the public. Additionally, the court’s findings on this issue were 

incorporated into the sentencing entry. Thus, we agree with counsel that any argument 

that the R.C. 2929.14(C)(4) consecutive service findings were not adequately made 

would be frivolous. 

{¶ 8} Also, though not directly raised by counsel, any argument that we could find 

by clear and convincing evidence that the record does not support the consecutive service 

findings would be without arguable merit. State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 1; see also R.C. 2953.08(G). The record reflects that 

Allen admitted to the use of and trafficking in methamphetamine. Further, during the 

search of Allen’s home, a number of firearms were discovered. These facts supported 

the trial court’s public protection, punishment, proportionality, and seriousness findings. 

Allen’s criminal record spanned over 20 years; in addition to the present offenses, he 

committed previous felony drug possession offenses and numerous misdemeanor 

convictions, which included the violent offenses of assault and menacing. This history 

supports the trial court’s criminal history conclusion. 

{¶ 9} Counsel also suggested ineffective assistance of counsel as a possible 

meritorious appellate argument. The basis for this suggestion was trial counsel’s failure 

to file a motion seeking to suppress the drugs and firearms supporting the indicted 

charges. 

{¶ 10} A defendant’s guilty plea acts as a waiver of all error, including a claim of 

ineffective assistance of counsel, “except to the extent that [any error] precluded the 

defendant from knowingly, intelligently, and voluntarily entering his * * * guilty plea.” 
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State v. Rozell, 2018-Ohio-1722, 111 N.E. 3d 861, ¶ 40 (2d Dist.), quoting State v. 

Leonard, 2d Dist. Montgomery No. 27411, 2017-Ohio-8421, ¶ 13. Therefore, a 

defendant, in order to establish ineffective assistance of counsel within the context of a 

guilty plea, must establish that counsel’s advice regarding the guilty plea was outside the 

“range of competence demanded of attorneys in criminal cases[,]” and that there was a 

reasonable probability “that if he had been adequately advised he would not have pleaded 

guilty * * * .” Id. at ¶ 40, quoting State v. Huddleston, 2d Dist. Montgomery No. 20653, 

2005-Ohio-4029, ¶ 9. On this record, under this standard, counsel’s suggested claim of 

ineffective assistance of counsel would be frivolous. 

{¶ 11} In addition, we have reviewed the entire record including the plea and 

sentencing transcripts, the plea and sentencing entries, and the PSI. This review has 

not revealed any potentially meritorious appellate issues. 

Conclusion 

{¶ 12} We have found no non-frivolous issues for appellate review. Counsel’s 

motion to withdraw is granted, and the judgment of the Clark County Common Pleas 

Court is affirmed. 

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WELBAUM, P.J. and FROELICH, J., concur. 

Copies sent to: 

Andrew P. Pickering 

Brent E. Rambo 

Clayton Allen 

Hon. Richard J. O’Neill 
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