[Cite as State v. Wolfe , 2021-Ohio-1672.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. ERIC WOLFE Defendant-Appellant : : : : : : : : : : Appellate Case No. 28925

Trial Court Case No. 2020-CR-1494 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 14th day of May, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantow n, Ohio 45327 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant-Appellant, Eric Wolfe, appeals from an order revoking his community control sanctions and imposing sentence. On February 9, 2021, Wolfe’s assigned counsel filed a brief under the authority of Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating there are no i ssues with arguable merit to present on appeal. Counsel raised one potential assignment of error concerning the fact that the sentence was contrary to law, but found no arguab le merit in that claim. {¶ 2} On February 11, 2021, we notified Wolfe that his counsel found no meritorious claims for review, and we granted him 60 days to fi le a pro se brief assigning any errors. However, Wolfe did not file a pro se brief. {¶ 3} Also on February 11, 2021, the State filed a response to the Anders brief and said it would not respond to Wolfe’s brief because no arguable issues were raised. The State did ask for time to respond if we decided that appealable issues existed and appointed new counsel for Wolfe. {¶ 4} After reviewing the entire record, including the presentence in vestigation (“PSI”) report, and conducting our independent Anders review, we find no issues with arguable merit for Wolfe to advance on appeal. Accordingly, th e judgment of the trial

court will be affirmed.

II. Facts and Course of Proceedings {¶ 5} On May 29, 2020, an indictment was filed in the trial court cha rging Wolfe with having committed domestic violence against Teri S. Becaus e Wolfe had two prior domestic violence convictions (in July 2002 and in August 2019) , the offense was elevated to a third-degree felony. Wolfe pled not guilty to th e charge, counsel was-3- appointed, and bond was set at $15,000 (surety bond). On June 19, 2020, Wolfe’s initial counsel was granted leave to withdraw due to the Covid pandemic and counsel’s inability to visit with Wolfe in jail. New counsel was appointed for Wol fe the same day. {¶ 6} On June 25, 2020, Wolfe filed a motion for a bond reduction, bu t the court continued the bond as previously set. Subsequently, on July 9, 2020, Wolfe appeared in court and pled guilty, based on the State’s agreement to red uce the charge to the lesser included offense of domestic violence with one prior conviction , a felony of the fourth degree. During the plea hearing, the court advised Wolfe of hi s constitutional rights and also fully complied with the requirements of Crim.R.11(C)(2) fo r accepting pleas. After accepting Wolfe’s guilty plea, the court found him guilty of th e offense as charged and ordered that a PSI be conducted. Transcript of Proceedings (“T r.”), Plea Hearing, p. 3- 10. An entry of waiver and plea was then filed on July 13, 202 0. {¶ 7} The sentencing hearing was held on July 23, 2020, at which time the court sentenced Wolfe to up to five years of community control sancti ons (CCS), conditioned on Wolfe’s compliance with several conditions. Tr., Sentencing Hearing, at p. 14-15. These conditions included that Wolfe would: (1) comply with the court’s general conditions for probationers; (2) undergo intensive supervision with a dome stic violence specialist for a period not to exceed five years; (3) complete treatment at No va House and comply with the agency’s further recommendations; (4) obtain and maintain v erifiable employment or provide verification of inability to work; (5) have no contact with the victim, Teri S., or come within 1,000 feet of her person, residence, or place of employm ent; (6) attend and complete the Stop the Violence program; (7) attend and complete domestic violence counseling as the probation officer deemed appropriate; (8) abs tain from the use of illegal-4- drugs of abuse and alcohol; and (9) not be in places where he h ad reasonable cause to know that illegal drugs, stolen property, or firearms were pres ent. Id. The court also warned Wolfe that if he violated any sanction or left the state without permission, the court could impose a longer time under the same sanction, impose more restrictive sanctions, impose 12 months in jail or the MonDay Program, or impose a pri son term of 18 months.

Id . at p. 16. {¶ 8} The judgment entry, which included the community control sancti ons and potential prison sentence, was filed on July 24, 2020. Wolfe d id not appeal from the judgment. {¶ 9} On July 27, 2020 (or only four days after the sentencing hearin g), the court filed an order suspending the probationary period for community control and ordering a capias for Wolfe. In the order, the court noted that Wolfe’s p robation officer had represented that Wolfe’s whereabouts had been unknown since Jul y 23, 2020. The police then arrested Wolfe on July 30, 2020, and filed a return of warrant the following day. {¶ 10} On August 9, 2020, a Notice of CCS Revocation Hearing and Order was filed, and Wolfe was ordered to appear on August 13, 2020. The notice alleged that upon being released from jail, Wolfe went to Teri S.’s residenc e and damaged her property, a violation of Sanction #6. The notice further alleg ed that Wolfe had failed to report to the probation department as ordered and was declared an absconder on July 27, 2020. The trial court then held hearings on August 13, 202 0 and September 3, 2020. During the first hearing, Wolfe acknowledged receipt of the rev ocation notice, waived the formal reading of the notice, waived the probable cause hearing , and entered a general-5- denial. Tr. at p. 17. {¶ 11} On September 3, 2020, Wolfe acknowledged receipt of the revocat ion notice, waived the formal reading of the notice, waived the pro bable cause hearing, and admitted that he had violated Rules #5 and #6, with the underst anding that he would be receiving a sanction of attending the MonDay Program. Tr. at p . 29. At that time, Wolfe had been accepted into the program. Id . After finding that Wolfe had knowingly, intelligently, and voluntarily admitted to the violations, the court held that a violation had occurred and added the MonDay Correctional Institution as a san ction. Id. at p. 21. The court then filed an order on September 8, 2020, modifying the c ommunity control sanctions to require that Wolfe attend the MonDay program. {¶ 12} Shortly thereafter, on September 21, 2020, the court filed anot her Notice of CCS Revocation Hearing and Order. This time, the notice allege d that Wolfe had violated Sanction #10 by failing to complete the MonDay program . Specifically, Wolfe self-terminated from the program on September 16, 2020. Id . at p. 1. The court again held a hearing, during which Wolfe acknowledged receipt of the revocation notice, waived the probable cause hearing, and entered an admission that he ha d violated Sanction #10. Tr. at p. 22. During the hearing, Wolfe expressed agreement wi th serving a 12-month prison sentence, with jail credit of 121 days. Id . Wolfe further agreed that his admission to the violation was being made knowingly, voluntarily, and int elligently. Id

. {¶ 13} The trial court then found, by a preponderance of the evidence, that Wolfe had violated the terms and conditions of community control. Id . at p. 23. The court therefore revoked community control, sentenced Wolfe to 12 mont hs in prison, and gave Wolfe 121 days of jail credit for time served. Id . at p. 23-24. The court then filed a-6- termination entry on September 27, 2020, revoking Wolfe’s commu nity control and sentencing him to 12 months in prison, with jail credit of 121 days. Wolfe timely appealed from the judgment on September 30, 2020.

II. Discussion and Conclusion {¶ 14} In an Anders review, we are required to decide “after a full examination of all the proceedings,” whether an appeal is “wholly frivolous.” Anders , 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. See also Penson v. Ohio , 488 U.S. 75, 84-85, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Issues are not frivolous simply b ecause the State “can be expected to present a strong argument in reply.” State v. Pullen , 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Instead, an issue will lack ar guable merit “if on the facts and law involved, no responsible contention can be made t hat it offers a basis for

reversal.” Id

. {¶ 15} After conducting an independent review of the record pursuant t o Anders , we agree with Wolfe’s appellate counsel that, based on the fact s and relevant law, there are no issues with arguable merit to present on appeal. Specif ically, Wolfe stipulated to both violations of community control and was sentenced to a pri son term that he had been warned of after he refused to comply with community control san ctions. Wolfe’s defiance of the sanctions was obvious, and it occurred in both cases alm ost immediately after the sanctions were imposed. {¶ 16} As indicated, Wolfe’s counsel raised a potential assignment of error concerning whether the sentence was contrary to law, but found no merit in this claim. Again, we agree.-7- {¶ 17} “A sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the pur poses and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.”

State v. Brown , 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.), citing State v. Pawlak , 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. Accord State v. Derrick , 2d Dist. Montgomery No. 28878, 2021-Ohio-1330, ¶ 22. {¶ 18} Here, the 12-month sentence was within the statutory range of s ix to 18 months for a fourth-degree felony and was below the maximum pen alty. R.C. 2929.14(A)(4). The trial court also complied with the requirem ent of considering the purposes and principles of felony sentencing in R.C. 2929.11 an d the sentencing factors

in R.C. 2929.12. See Sentencing Tr. at p. 23. While the court did not specifically make findings or give reasons for imposing more than a minimum sente nce, there was no requirement to do so. E.g., State v. King , 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). . {¶ 19} Furthermore, the PSI report revealed that Wolfe had a very long history of criminal offenses dating back to the early 1980s. These crimes involved 16 alcohol and drug-related misdemeanor convictions as well as a 2017 felony c onviction for aggravated possession of drugs. Wolfe’s criminal history also included co nvictions for domestic violence, menacing, and trespassing, among others. Many of the convictions resulted in suspension of most of Wolfe’s jail time, which obviously did no t work to prevent future crime. In fact, in November 2019, Wolfe was convicted of menac ing (reduced from aggravated menacing) in a case involving the victim here, Teri S. Any prior sanctions clearly did not deter Wolfe from committing domestic violence a gainst Teri S. several-8- months later in 2020, nor did the sanctions imposed in this cas e deter Wolfe from returning to Teri S.’s residence the same day that he was relea sed from jail. There is no doubt that community control sanctions did not prevent Wolfe fr om committing crimes. {¶ 20} Based on the preceding discussion, the judgment of the trial co urt is

affirmed.

. . . . . . . . . . . . .

HALL, J. and EPLEY, J., concur.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Kirsten Knight Eric Wolfe Hon. Gerald Parker