[Cite as State v. Keller, 2012-Ohio-237.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No: 10CA39 

 : 

 v. : 

 : DECISION AND

JAMES W. KELLER, : JUDGMENT ENTRY

 : 

 Defendant-Appellant. : Filed: January 12, 2012 

APPEARANCES:

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

J.B. Collier, Jr., Lawrence County Prosecuting Attorney, Ironton, Ohio, for Appellee. 

Kline, J.: 

{¶1} James W. Keller (hereinafter “Keller”) appeals the judgment of the 

Lawrence County Court of Common Pleas. After pleading guilty to five different crimes, 

Keller was sentenced to a total combined prison term of six years. Keller’s appellate 

counsel has advised this court that, after reviewing the record, he cannot find a 

meritorious claim for appeal. As a result, Keller’s appellate counsel has moved to 

withdraw under Anders v. California (1967), 386 U.S. 738. After independently 

reviewing the record, we agree that Keller’s appeal is wholly frivolous. Accordingly, we 

(1) grant counsel’s request to withdraw and (2) affirm the judgment of the trial court. 

I. 
Lawrence App. No. 10CA39 2 

{¶2} On September 1, 2010, a Lawrence County Grand Jury returned a fivecount indictment against Keller. After plea negotiations, Keller pled guilty to the 

following crimes: (1) Burglary, a third-degree felony; (2) Theft of Drugs, a fourth-degree 

felony; (3) Grand Theft, a fourth-degree felony; (4) Complicity to Grand Theft of a Motor 

Vehicle, a fourth-degree felony; and (5) Illegal Use or Possession of Paraphernalia, a 

fourth-degree misdemeanor. 

{¶3} Keller received a total combined prison term of six years. The trial court 

sentenced Keller to four years for Burglary, twelve months for Theft of Drugs, twelve 

months for Grand Theft, six months for Complicity to Grand Theft of a Motor Vehicle, 

and thirty days for Illegal Use or Possession of Paraphernalia. Keller was ordered to 

serve the sentences for Burglary, Theft of Drugs, and Grand Theft consecutively to each 

other -- a total of six years in prison. Keller’s will serve his remaining two sentences 

concurrently to the six-year prison term. 

II. 

{¶4} Although Keller has appealed his conviction, Keller’s 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. Id. at 744. Counsel must accompany the request with a brief 

identifying anything in the record that could arguably support the appeal. Id. Counsel 

also must furnish the client with a copy of the brief and request to withdraw and allow 

the client sufficient time to raise any matters that the client chooses. Id. Once these 

requirements have been satisfied, the appellate court must then fully examine the 
Lawrence App. No. 10CA39 3 

proceedings below to determine if meritorious issues exist. Id. If the appellate court 

determines that the appeal is 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. Alternatively, if the appellate court 

concludes that any of the legal points are arguable on their merits, it must afford the 

appellant the assistance of counsel to argue the appeal. Id.” State v. Wise, Lawrence 

App. No. 08CA40, 2009-Ohio-5264, at ¶11. See, also, State v. Taylor, Montgomery 

App. No. 23833, 2010-Ohio-4276, at ¶2 (stating that an appellant must be afforded 

“time to file a pro se brief”). 

{¶5} Upon receiving an Anders brief, we must “conduct ‘a full examination of all 

the proceeding[s] to decide whether the case is wholly frivolous.’” Penson v. Ohio

(1988), 488 U.S. 75, 80, quoting Anders at 744. If we find only frivolous issues on 

appeal, we may then proceed to address the case on its merits without affording 

appellant the assistance of counsel. Penson at 80. However, if we conclude that there 

are nonfrivolous issues for appeal, we must afford appellant the assistance of counsel 

to address those issues. Anders at 744; Penson at 80; see, also, State v. Alexander

(Aug. 10, 1999), Lawrence App. No. 98CA29. 

{¶6} Here, Keller’s counsel has satisfied the requirements of Anders. And 

although Keller has not filed a pro se brief, Keller’s counsel has raised the following 

potential assignment of error: “The appellant, James W. Keller, may assert as an 

assignment of error, that the [trial court] abused its discretion upon sentencing the 

appellant, James W. Keller[,] to consecutive and concurrent sentences rather than to 

have the five (5) sentences run concurrently.” We will examine this potential 
Lawrence App. No. 10CA39 4 

assignment of error -- and the entire record below -- to determine whether Keller’s 

appeal lacks merit. 

III. 

{¶7} Keller’s trial counsel asserts that the trial court might have erred by 

ordering non-minimum, consecutive sentences. Instead, Keller’s trial counsel contends 

that, perhaps, the trial court should have imposed a lesser prison term. 

{¶8} “Appellate courts ‘apply a two-step approach [to review a sentence]. First, 

[we] 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 shall 

be reviewed under an abuse-of-discretion standard.’” State v. Smith, Pickaway App. 

No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, at ¶4 (alterations sic). 

{¶9} Here, we find that Keller’s total combined six-year sentence is not clearly 

and convincingly contrary to law. In analyzing whether Keller’s total combined sentence 

is contrary to law, “[t]he only specific guideline is that the sentence must be within the 

statutory range[.]” State v. Welch, Washington App. No. 08CA29, 2009-Ohio-2655, at 

¶7 (internal quotation omitted). 

{¶10} Keller pled guilty to one third-degree felony and three fourth-degree 

felonies. (Keller also pled guilty to a fourth-degree misdemeanor. However, because 

Keller was ordered to serve his misdemeanor sentence concurrently to his felony 

sentences, we need not consider Keller’s misdemeanor sentence in analyzing his 

potential assignment of error.) “For a felony of the third degree, the prison term shall be 
Lawrence App. No. 10CA39 5 

one, two, three, four, or five years.” R.C. 2929.14(A)(3). Furthermore, “[f]or a felony of 

the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve, 

thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.” R.C. 2929.14(A)(4). 

Therefore, after being convicted of one third-degree felony and three fourth-degree 

felonies, Keller could have received up to eight years in prison. Accordingly, Keller’s 

six-year prison sentence falls within the statutory range. 

{¶11} Additionally, courts must consider the general guidance factors set forth in 

R.C. 2929.11 and 2929.12. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at ¶42; 

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶13. In imposing Keller’s sentence, the 

trial court noted that it had “weighed the purposes and principles of sentencing in 

O.R.C. 2929.11, the seriousness and recidivism factors in O.R.C. 2929.12, and 

follow[ed] the guidance of O.R.C. 2929.13[.]” Judgment Entry at 2. Therefore, we find 

that the trial court complied with all applicable rules and statutes in sentencing Keller. 

And thus, we find that Keller’s sentence is not clearly and convincingly contrary to law. 

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

Keller’s sentence. An abuse of discretion connotes more than a mere error of 

judgment; it implies that the court’s attitude is arbitrary, unreasonable, or 

unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. “In the sentencing 

context, we review the trial court’s selection of the sentence within the permissible 

statutory range.” Smith at ¶17, citing Kalish at ¶17. 

{¶13} Sentencing courts “have full discretion to impose a prison sentence within 

the statutory range and are [not] required to make findings or give their reasons for 

imposing maximum, consecutive, or more than the minimum sentences.” State v. 
Lawrence App. No. 10CA39 6 

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus; see, also, 

Kalish at ¶11. Nevertheless, “courts must still consider the general guidance factors set 

forth in R.C. 2929.11 and R.C. 2929.12.” State v. Voycik, Washington App. Nos. 

08CA33 & 08CA34, 2009-Ohio-3669, at ¶14. 

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

found nothing in the record to support the notion that Keller’s sentence is unreasonably 

harsh under the circumstances. Keller claims that his co-defendant received a lesser 

sentence than he did. And for that reason, Keller argues that his own sentence is 

unreasonable. However, the sentence imposed upon Keller’s co-defendant is not in the 

record before us, and “our review is limited to the record transmitted on appeal.” State 

v. Delong, Adams App. No. 05CA815, 2006-Ohio-2753, at ¶5. 

{¶15} Accordingly, we agree that Keller’s potential assignment of error is without 

merit. 

IV. 

{¶16} In conclusion, we find no merit in Keller’s potential assignment of error. 

Furthermore, after fully examining the proceedings below, we have found no other 

potential issues for appeal. Because we agree that Keller’s appeal is wholly frivolous, 

we (1) grant Keller’s counsel’s motion to withdraw and (2) affirm the judgment of the trial 

court. 

JUDGMENT AFFIRMED. 
Lawrence App. No. 10CA39 7 

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE 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 

Lawrence County Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. Exceptions. 

Harsha, J.: Concurs in Judgment and Opinion. 

McFarland, J.: Concurs in Judgment Only. 

For the Court 

 

 

 BY: ____________________________ 

 Roger L. Kline, 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.