[Cite as State v. Smith, 2024-Ohio-430.]

COURT OF APPEALS

MORGAN COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsBRADLEY SMITH

Defendant-Appellant

JUDGES:

: Hon. W. Scott Gwin, P.J.

: Hon. William B. Hoffman, J.

: Hon. Andrew J. King, J.

:

:

: Case No. 23AP0004

:

:

: OPINION

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of 

Common Pleas, Case Nos. 18CR0065, 

19CR0024 & 22CR0038

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 7, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK HOWDYSHELL BRIAN W. BENBOW

Assistant Prosecuting Attorney 265 Sunrise Center Drive

109 East Main Street Zanesville, OH 43701

McConnelsville, OH 43756
[Cite as State v. Smith, 2024-Ohio-430.]

Gwin, P.J.

{¶1} This matter comes before the Court upon the Motion to Withdraw and 

Anders brief filed by counsel for Defendant-appellant Bradley T. Smith [Smith] after his 

convictions and sentences following negotiated guilty pleas in the Morgan County Court 

of Common Pleas.

Facts and Procedural History

{¶2} This case begins on January 4, 2019 with Smith’s written plea of guilty to 

one count of Receiving Stolen Property a felony of the fourth degree in violation of R.C. 

2913.51(A) / (C) and one count of Escape, a felony of the third degree in violation of R.C. 

2921.34 (A)(1)(C)(2)(b) in Morgan County Court of Common Pleas Case Number 18 CR 

0065. By Judgment Entry filed January 9, 2019, the trial court accepted Smith’s plea, 

found him guilty and deferred sentencing. 

{¶3} Smith failed to appear for sentencing and a capias was issued for his arrest. 

By Judgement Entry filed February 21, 2019, the trial judge sentenced Smith to eighteen 

months on the receiving stolen property conviction and thirty-six months on the escape 

conviction, with the sentences to run concurrently. Smith was further advised he would 

serve three years community control supervision upon his release from prison. The trial 

judge advised Smith of the consequences should he violate the terms of his post release 

control.

{¶4} On April 4, 2019, in Morgan County Court of Common Pleas, Case No. 19 

CR 0024, Smith was Indicted for one count of Failure to Appear in Case No. 18 CR 0065, 

a felony of the fourth degree in violation of R.C. 2937.99 (A) / (B).
Morgan County, Case No. 23AP0004 3

{¶5} By Journal Entry filed January 6, 2020, the trial court granted Smith’s 

application for Judicial Release in Case Number 18 CR 0065. The judge sentenced Smith 

to five years Community Control, retroactive to the date of the original sentencing on 

February 19, 2019; restitution in the amount of $1,500.00 and court costs.

{¶6} On May 28, 2020 in Case Number 19 CR 0024, Smith filed a written guilty 

plea to one count of Failure to Appear. The trial judge accepted Smith’s plea, found him 

guilty and sentenced Smith to five years of community control supervision. Smith was 

advised of the consequences should he be found to have violated the terms of community 

control supervision. 

{¶7} On April 13, 2021, the state filed a Motion to Revoke Smith’s Community 

Control Supervision in Case Number 18 CR 0065. By Judgment Entry filed September 

22, 2021, Smith waived a final hearing on his community control violation and admitted 

to the violation. The trial judge accepted the admission, found Smith guilty and modified 

his community control supervision to include a requirement that Smith enter and complete 

the STAR program, and thereafter attend and participate in substance abuse counseling 

with Cedar Ridge.

{¶8} A motion to revoke community control supervision in Case No. 18 CR 0065 

was filed on March 15, 2022. On March 15, 2022, a motion to revoke community control 

supervision in Case No. 19 CR 0024 was filed.

{¶9} On April 24, 2022 in Morgan County Court of Common Pleas Case Number 

22 CR 0038, Smith was Indicted on one count of Failure to Comply with the Order of a 

Police Officer, and, in doing so, causing a substantial risk of harm to persons or property, 

a felony of the third degree in violation of R.C. 2921.331 (B) / (C) (5)(a) (ii). On October 
Morgan County, Case No. 23AP0004 4

13, 2022, Smith filed a written plea of guilty. The trial judge accepted the plea and found 

Smith guilty by Judgment Entry filed October 14, 2022. The trial judge granted Smith’s 

request for a recognizance bond, deferred sentencing and order the preparation of a presentence investigation report. T. Plea Hearing, Oct. 12, 2022 at 20-21.

{¶10} Also, on October 12, 2022, Smith admitted the violations of community 

control supervision in Case Numbers 18 CR 0065 and 19 CR 0024. T. Plea Hearing, Oct. 

12, 2022 at 6-7. The trial court found Smith guilty and deferred sentencing. Community 

Control Hearing Entry, filed October 17, 2022.

{¶11} The trial judge held a sentencing hearing in Case Numbers 18 CR 0065, 19 

CR 0024 and 22 CR 0038 on February 28, 2023. In addition, the trial judge conducted an 

arraignment regarding new charges that are not part of this appeal.1

{¶12} The state asked the judge to impose maximum consecutive sentences. 

Smith objected arguing that the plea agreement did not include his consent to maximum 

consecutive sentences. T. Arraignment and Sentencing, February 28, 2023 at 9-10. Smith 

argued that the parties had agreed to an eighteen-month sentence "give or take a few 

days." Id. at 11-12. Smith’s attorney requested a continuance to deal with the surprise 

regarding the state's position. Id. at 11. The trial judge orally denied the oral motion to 

continue. 

{¶13} In Case Number 22 CR 0038, for failure to comply in violation of R.C. 

2921.331, a felony of the third degree, the trial judge sentenced Smith to 36 months in 

prison. T. Arraignment and Sentencing, February 28, 2023 at 16. The judge gave Smith 

zero days of jail time credit toward this sentence. Id. 

1 Morgan County Court of Common Pleas, Case Number 23 CR 0009.
Morgan County, Case No. 23AP0004 5

{¶14} In Case Number 19-CR-0024, for failure to appear in violation of R.C. 

2937.99, a felony of the fourth degree, the trial judge sentenced Smith to 18 months in 

prison. T. Arraignment and Sentencing, February 28, 2023 at 15-16. The trial judge gave 

Smith 309 days of jail time credit toward this sentence. Id. at 15.

{¶15} In Case Number 18 CR 0065, for escape, in violation of R.C. 2921.34, a 

felony of the third degree, the trial judge sentenced Smith to 36 months in prison. For 

receiving stolen property, in violation of R.C. 2913.51, a felony of the fourth degree, the 

trial judge sentenced Smith to 18 months in prison. These sentences were ordered to be 

served concurrently to each other but consecutive to the sentences in Case No. 19 CR 

0024 and 22 CR 0058. T. Arraignment and Sentencing, February 28, 2023 at 15-16. The 

trial judge gave Smith 823 days of jail time credit toward his sentence in Case Number 

18 CR 0065. Id. at 15.

{¶16} The trial judge ordered the sentences in all three cases were to run 

consecutive. Id. at 16. 

Proposed Assignment of Error

{¶17} Smith’s attorney has set forth four Proposed Assignments of Error,

{¶18} “I. THE COURT ERRED IN IMPOSING A SENTENCE THAT WAS 

GROSSLY DISPROPORTIONATE TO APPELLANT'S CONDUCT AND NOT IN 

ACCORDANCE WITH STATUTES GOVERNING FELONY SENTENCING AND WHICH 

SENTENCE DEMONSTRATES AN UNNECESSARY BURDEN ON STATE 

RESOURCES.

{¶19} “II. THE TRIAL COURT FURTHER ERRED BY IMPOSING MAXIMUM 

CONSECUTIVE SENTENCES, WHICH SENTENCE WAS GREATER THAN 
Morgan County, Case No. 23AP0004 6

PREVIOUSLY AGREED UPON BY THE PARTIES IN BREACH OF THE PRIOR PLEA 

AGREEMENT.

{¶20} “III. THE TRIAL COURT ERRED BY NOT CONTINUING THE 

SENTENCING HEARING WHEN THE STATE OF OHIO ASKED THE COURT FOR A 

MAXIMUM CONSECUTIVE SENTENCE IN VIOLATION OF THE PRIOR PLEA 

AGREEMENT.

{¶21} “IV. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND V. 

WASHINGTON (1984), 466 U.S. 668, 80 L.ED.2D 674, 104 S.CT. 2052.”

{¶22} Smith’s appellate counsel has filed a brief pursuant to Anders v. California, 

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We informed Smith by Judgment 

Entry filed August 30, 2023 that his attorney had filed an Anders brief on his behalf and 

granted him sixty days from that date, i.e. October 30, 2023, to file a pro se brief. 

Judgment Entry, filed October 16, 2023. Smith has not filed a pro se brief.

Standard of Review - Anders v. California

{¶23} In Anders, the United States Supreme Court held if, after a conscientious 

examination of the record, a defendant's counsel concludes the case is wholly frivolous, 

then he should so advise the court and request permission to withdraw. 386 U.S. at 744. 

Counsel must accompany his request with a brief identifying anything in the record that 

could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with 

a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise 

any matters that the client chooses. Id. Once the defendant's counsel satisfies these 

requirements, the appellate court must fully examine the proceedings below to determine 
Morgan County, Case No. 23AP0004 7

if any arguably meritorious issues exist. If the appellate court also determines that the 

appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the 

appeal without violating constitutional requirements, or may proceed to a decision on the 

merits if state law so requires. Id.

{¶24} “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 prevail on the issue on appeal. “An issue lacks arguable merit if, on the 

facts and law involved, no responsible contention can be made that it offers a basis for 

reversal.” State v. Pullen, 2nd Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4; State 

v. Marbury, 2nd Dist. Montgomery App. No. 19226, 2003-Ohio-3242, ¶ 7-8; State v. 

Chessman, 161 Ohio App.3d 140, 829 N.E.2d 748, 2005-Ohio-2511 (2nd Dist.), ¶ 16-17 

(quoting the same).” State v. Moore, 2nd Dist. Greene App. No. 07-CA-97, 2009-Ohio1416, ¶4. 

I.

{¶25} In the First Proposed Assignment of Error, counsel posits that Smith’s 

sentence may be disproportionate to his crimes and a squandering of state resources.

{¶26} This Court, as well as others, have rejected Smith’s argument. See, State 

v. Leasure, 5

th Dist. Ashland No. 2011-COA-031, 2012-Ohio-318, ¶29 (collecting cases). 

We find that Smith was given numerous opportunities to avoid prison and by his actions 

rejected all the alternatives. We further find Smith’s sentence is not disproportionate to 

his conduct or an unnecessary burden on state resources.
Morgan County, Case No. 23AP0004 8

{¶27} Upon our own independent review, we find nothing in the record to support 

an argument that appellant’s sentence is disproportionate to his conduct, not in 

accordance with relevant sentencing statutes, or an unnecessary burden on state 

resources.

II.

{¶28} In his Second Proposed Assignment of Error, counsel suggests that the 

sentence imposed was not the sentence agreed upon by the state and Smith during plea 

negotiations.

Plea Agreement

{¶29} A trial court does not err by imposing a sentence greater than "that forming 

the inducement for the defendant to plead guilty when the trial court forewarns the 

defendant of the applicable penalties, including the possibility of imposing a greater 

sentence than that recommended by the prosecutor." State v. Pettiford, 12th Dist. Fayette 

No. CA2001-08-014, 2002-Ohio-1914, ¶ 3, citing State v. Darmour, 38 Ohio App.3d 160, 

529 N.E.2d 208 (1987). In fact, Crim.R. 11 "does not contemplate that punishment will be 

a subject of plea bargaining, this being a matter either determined expressly by statute or 

lying with the sound discretion of the trial court." State v. Mathews, 8 Ohio App.3d 145, 

146, 456 N.E.2d 539(10th Dist. 1982). Accord State v. Batram, 5th Dist. Fairfield No. 

05CA106, 2006-Ohio-3505, ¶8.

{¶30} In the case at bar, the trial judge informed Smith prior to accepting his guilty 

plea that he was “not obligated to follow that recommendation.” T. Plea Hearing, Oct. 12, 

2022 at 12-13. Smith told the judge that he understood that the judge was not obligated 

to follow the agreement. Id.
Morgan County, Case No. 23AP0004 9

{¶31} In any event, the failure of Smith to appear at the sentencing hearing is 

generally held to be a breach of the plea agreement. Neither the agreement nor the court 

must inform the defendant that failure to appear at sentencing constitutes a breach of the 

agreement. Payton v. Clipper, N.D. Ohio E.D. No. 3:12CV476, 2014 WL 6750686 (Dec. 

1, 2014), ¶11-12; State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.2d 

729 (4th Dist.), ¶8-9; State v. Anderson, 4

th Dist. Scioto No. 19 CA 3871, 2020-Ohio-6912, 

¶10; State v. Allison, 6

th Dist. Huron No. H-23-001, 2023-Ohio-4573, ¶17-18; State v. 

Doyle, 5

th Dist. Muskingum No. 00 CA 15, 2001 WL 361013 (Apr. 5, 2001); State v. Snell, 

7

th Dist. Wood No. WD-18-004, 2019-Ohio-1033, ¶13. Accordingly, Smith’s failure to 

appear for the sentencing hearing breached the plea agreement and relieved the state of 

any obligation under the agreement. 

Maximum and consecutive sentences

{¶32} In accordance with R.C. 2953.08(A)(1), Smith is entitled to appeal as of right 

the maximum sentence imposed on his conviction. A court reviewing a criminal sentence 

is required by R.C. 2953.08(F) to review the entire trial court record, including any oral or 

written statements and presentence-investigation reports. R.C. 2953.08(F)(1) through (4). 

We review felony sentences using the standard of review set forth in R.C. 2953.08. State 

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22; State v. Howell, 

5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 2953.08(G)(2) provides we 

may either increase, reduce, modify, or vacate a sentence and remand for resentencing 

where we clearly and convincingly find that either the record does not support the 

sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 
Morgan County, Case No. 23AP0004 10

2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.

Issue for Appellate Review: Whether Smith’s sentence was imposed based on 

impermissible considerations—i.e., considerations that fall outside those that are 

contained in R.C. 2929.11 and 2929.12

R.C. 2929.11, R.C. 2929.12 and Maximum Sentences

{¶33} A trial court’s imposition of a maximum prison term for a felony conviction is 

not contrary to law as long as the sentence is within the statutory range for the offense, 

and the court considers both the purposes and principles of felony sentencing set forth in 

R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. State 

v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 10, 16; State 

v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶16. “[N]either R.C. 2929.11 

nor 2929.12 requires [the] court to make any specific factual findings on the record.” State 

v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 20, citing State v. 

Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State v. Arnett, 

88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). In State v. Bryant, the Court clarified,

The narrow holding in Jones [163 Ohio St.3d 242, 2020-Ohio-6729, 

169 N.E.3d 649] is that R.C. 2953.08(G)(2) does not allow an appellate 

court to modify or vacate a sentence based on its view that the sentence is 

not supported by the record under R.C. 2929.11 and 2929.12. See Jones

at ¶ 31, 39. Nothing about that holding should be construed as prohibiting 

appellate review of a sentence when the claim is that the sentence was 

improperly imposed based on impermissible considerations—i.e., 
Morgan County, Case No. 23AP0004 11

considerations that fall outside those that are contained in R.C. 2929.11 and 

2929.12. Indeed, in Jones, this court made clear that R.C. 2953.08(G)(2)(b) 

permits appellate courts to reverse or modify sentencing decisions that are 

“‘otherwise contrary to law.’” Jones at ¶ 32, quoting R.C. 2953.08(G)(2)(b). 

This court also recognized that “otherwise contrary to law” means “‘in 

violation of statute or legal regulations at a given time.’” Id. at ¶ 34 quoting 

Black’s Law Dictionary 328 (6th Ed. 1990). Accordingly, when a trial court 

imposes a sentence based on factors or considerations that are extraneous 

to those that are permitted by R.C. 2929.11 and 2929.12, that sentence is 

contrary to law. Claims that raise these types of issues are therefore 

reviewable.

168 Ohio St.3d 250, 2022-Ohio-1878, 198 N.E.3d 68, ¶22.

{¶34} In the case at bar, Smith was arraigned on a new charge in Morgan County 

Court of Common Pleas, Case No. 23-CR-0009, prior to his sentencing in the three cases 

herein under consideration on appeal. T. Arraignment and Sentencing, Feb. 28, 2023 at 

3-4. The trial judge considered the purposes and principles of sentencing. Id. at 13;14. 

The judge found that none of the offenses merged. Id. 14-15. The trial judge noted that 

the state rejected the plea agreement because Smith failed to appear and was charged 

with new criminal cases. The trial judge noted the number of criminal charges and the 

number of times Smith failed to appear.

{¶35} Further, in this case the record also does support a conclusion that the trial 

court made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed 

consecutive sentences. T. Arraignment and Sentencing, Feb. 28, 2023 at 16-17.
Morgan County, Case No. 23AP0004 12

{¶36} Upon review, we find that the trial court’s sentencing on the charges 

complies with applicable rules and sentencing statutes. The sentence was within the 

statutory sentencing range. The record does not demonstrate that the trial judge imposed 

the sentence based on impermissible considerations—i.e., considerations that fall outside 

those that are contained in R.C. 2929.11 and 2929.12. Further, the record contains 

evidence supporting the trial court’s findings under R.C. 2929.14(C)(4).

{¶37} Thus, after independently reviewing the record we find no arguably 

meritorious issues exist with respect to whether Smith’s sentence was contrary to law.

III.

{¶38} In his Third Proposed Assignment of Error, counsel for Smith suggests that 

the trial judge erred by not granting Smith a continuance based upon the state’s rescission 

of the plea agreement.

{¶39} The Ohio Supreme Court has stated pre-sentence motions to withdraw a 

guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521 at 584, 

584 N.E.2d 715. That does not mean, however, a defendant has an absolute right to 

withdraw a guilty plea prior to sentencing. Id. at paragraph one of the syllabus. There 

must be “a reasonable and legitimate basis for withdrawal of the plea.” Id. The decision 

to grant or deny a pre-sentence plea withdrawal motion is within the trial court’s sound 

discretion. Id.

{¶40} Smith breached the plea agreement when he failed to appear for sentencing 

as discussed in our disposition of Smith’s Second Proposed Assignment of Error. Thus, 

it was Smith’s own actions, not those of the state or the trial judge, that resulted in the 
Morgan County, Case No. 23AP0004 13

rescission of the plea agreement. Further, Smith did not move on the record to withdraw 

his previously entered pleas. 

{¶41} Thus, the trial judge did not err when he overruled Smith’s motion for a 

continuance to discuss whether he should withdraw his previously entered guilty plea 

because Smith was not able to establish “a reasonable and legitimate basis for withdrawal 

of the plea.” State v. Xie, 62 Ohio St.3d 521 at 584, 584 N.E.2d 715. Nor could he 

establish that he perhaps was not guilty or has a complete defense to the charges. State 

v. Cuthbertson, 139 Ohio App.3d 895, 899, 746 N.E.2d 197 (7th Dist. 2000).

{¶42} Upon our own independent review, we find nothing in the record to support 

an argument that the trial judge abused his discretion by denying Smith’s request for a 

continuance of the sentencing hearing.

IV.

{¶43} In his Fourth Proposed Assignment of Error, counsel for Smith suggests 

that Smith received ineffective assistance from trial counsel.

Standard of Appellate Review.

{¶44} To obtain a reversal of a conviction on the basis of ineffective assistance of 

counsel, the defendant must prove (1) that counsel’s performance fell below an objective 

standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the 

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. 

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 

693(1984). A defendant’s failure to satisfy one prong of the Strickland test negates a 

court’s need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
Morgan County, Case No. 23AP0004 14

{¶45} Nothing in the record before this Court suggests that Smith was prejudiced 

by trial counsel’s representation. Accordingly, Smith cannot meet his burden to 

demonstrate that as a result of counsel’s failures the result of the proceeding would have 

been different.

{¶46} Upon our own independent review, we find nothing in the record to support 

an argument that Smith was prejudiced by trial counsel’s representation.

Conclusion

{¶47} After independently reviewing the record, we agree with appellate counsel’s 

conclusion that no arguably meritorious claims exist upon which to base an appeal. We 

therefore find the appeal to be wholly frivolous under Anders.

{¶48} Attorney Brian W. Benbow’s motion to withdraw as counsel for Smith is 

hereby granted.
Morgan County, Case No. 23AP0004 15

{¶49} The judgment of the Morgan County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

King, J., concur