[Cite as State v. Stotts , 2024

- Ohio

- 747.]

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. Patricia A. Delaney, P.J.

Plaintiff

- Appellee : Hon. W. Scott Gwin, J.

: Hon. William B. Hoffman, J.

- vs

- :

: Case No. CT2023

- 0039

:

WILLIAM M. STOTTS :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Muskingum County

Court of Common Pleas, Case No.

CR2022

- 0212

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: February 29, 2024

For Plaintiff

- Appellee: For Defendant

- Appellant:

RONALD L. WELCH CHRIS BRIGDON

MUSKINGUM COUNTY PROSECUTOR 8138 Somerset Road

27 North Fifth St. Thornville, OH 43076

P.O. Box 189

Zanesville, OH 43702[Cite as State v. Stotts , 2024

- Ohio

- 747.]

Delaney, P.J.

{¶1} Defendant

- Appellant William M. Stotts appeals from the May 15, 2023

Sentencing Judgment Entry issued by the Muskingum County Court of Common Pleas

pursuant to our remand in State v. Stotts

, 5th Dist. Muskingum No. CT2022

- 0064, 2023

-

Ohio

- 1411. Plaintiff

- Appellee is the State of Ohio and did not appear in the instant appeal.

{¶2} Appellate counsel filed a brief pursuant to Anders v. California

, 386 U.S.

738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), asserting he found no potential assignments

of error having arguable merit. We have performed our duty under Anders to review the

record independently, and we also find no potential assignments of error having arguable

merit. See, State v. Adair

, 5th Dist. Muskingum No. CT2022

- 0016, 2023

- Ohio

- 1191, ¶ 20.

FACTS AND PROCEDURAL HISTORY

{¶3} The facts and procedural history come in part from our previous decision in

State v. Stotts , 5th Dist. Muskingum No. CT2022

- 0064, 2023

- Ohio

- 1411 (“ Stotts I ”).

{¶4} Stotts was released from prison on post release control on December 24,

2021. On April 30, 2022, at approximately 3:00 a.m., Stotts was stopped by the

Muskingum County Sheriff's office for a traffic violation. The officer noticed that Stotts was

wearing a handgun holster and asked whether he had a firearm in the vehicle. Stotts

admitted that he had a loaded gun, and when asked if there was anything illegal in the

vehicle, he admitted possessing methamphetamine. After searching the vehicle, the

deputy found a nine

- millimeter handgun in a plastic bag with a substance that was later

determined to be methamphetamine. Stotts also had $564.00 on his person. He admitted

possession of the methamphetamine and the handgun and confessed that he sold drugs

to his friends and that he used methamphetamine daily.[Cite as State v. Stotts , 2024

- Ohio

- 747.]

{¶5} Stotts was charged with seven offenses arising from his arrest. After plea

negotiations, the State agreed to dismiss four of the counts in exchange for a plea of

guilty to (1) Trafficking in Drugs, a third

- degree felony in violation of R.C. 2925.03(A)(2);

(2) Improper Handling of a Firearm in a Motor Vehicle, in fourth

- degree felony in violation

of R.C. 2923.16(B); and (3) Having a Weapon under a Disability, a third

- degree felony in

violation of R.C. 2923.13(A)(3). The State and Stotts also agreed to a joint

recommendation of 36 months in prison.

{¶6} Stotts appeared before the court on August 22, 2022 for sentencing. After

reviewing the facts, the trial court rejected the joint recommendation and imposed an

aggregate sentence of 72 months, a fine of $5000, and ordered forfeiture of the firearm

and the vehicle that Stotts was driving at the time of the offense. The sentencing entry

was filed on August 24, 2022.

{¶7} Stotts appealed the trial court’s imposition of sentence to this Court in Stotts

I. He raised two Assignments of Error:

I. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT

WITH THE PRINCIPLES SET FORTH O.R.C. § 2929.11 AND FACTORS

TO BE CONSIDRED(sic) IN O.R.C. § 2929.12.”

II. SHOULD THIS HONORABLE COURT SHOULD (sic) VACATE THE

TRIAL COURT'S DECISION TO IMPOSE CONSECUTIVE SENTENCES

ON COUNTS 2

- 3 AND 5 BECAUSE THE CONSECUTIVE SENTENCES

ARE IN CONTRAVENTION OF THE SENTENCING STATUTES.

Id

. at ¶ 6

- 7.[Cite as State v. Stotts , 2024

- Ohio

- 747.]

{¶8} We denied Stotts’ first Assignment of Error. In his second Assignment of

Error, however, we agreed with Stotts that the trial court improperly imposed consecutive

sentences pursuant to R.C. 2929.14(C)(4). Our review of the sentencing transcript and

the sentencing entry showed that neither contained language that could be reasonably

be interpreted as language that would satisfy the requirements of R.C. 2929.14(C)(4).

Stotts I

, at ¶ 24.

{¶9} Because trial court did not make the necessary findings during the

sentencing hearing and incorporate them into its sentencing entry, we found the

imposition of consecutive sentences was in error. The trial court's sentencing order as to

consecutive sentences was reversed, and the matter remanded for resentencing. Id

. at ¶

25

- 27.

{¶10} The matter came on for resentencing pursuant to remand on May 15, 2023.

The trial court stated at the sentencing hearing:

The Court finds consecutive sentences are necessary to protect the public

and punish this offender and consecutive sentences are not

disproportionate to the seriousness of the conduct and the danger posed to

the public. Additionally, your history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crimes.

(T. 11). The trial court imposed the same sentence as it did on August 24, 2022. On Count

2, Trafficking in Drugs, Stotts was ordered to serve a 36

- month prison term to be served

concurrently with a 12

- month prison term on Count 3, Improper Handling of a Firearm in

a Motor Vehicle. On Count 5, Having a Weapon While Under Disability, the trial court[Cite as State v. Stotts , 2024

- Ohio

- 747.]

imposed a 36

- month prison term to be served consecutively with Counts 2 and 3, for an

aggregate prison term of 72 months. The sentencing entry filed on May 15, 2023 included

language pertaining to R.C. 2919.14(C)(4) and the imposition of consecutive sentences.

{¶11} It is from this May 15, 2023 sentencing entry that Stotts files his Anders

appeal.

ASSIGNMENTS OF ERROR

{¶12} In his Anders brief, Stotts’ appellate counsel argues only one potential

Assignment of Error may exist. He contends that because the trial court originally imposed

consecutive sentences but failed to state the requisite R.C. 2929.14(C) findings, imposing

consecutive sentences at resentencing could be construed as a harsher sentence.

ANALYSIS

Consecutive Sentences

{¶13} In Stotts I

, this Court found that the trial court did not comply with R.C.

2929.14(C)(4) where in order to impose a consecutive sentence, the trial court is required

to make findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into the sentencing entry. Stotts I

, ¶ 23 citing State v. Bonnell

, 140

Ohio St.3d 209, 2014

- Ohio

- 3177, 16 N.E.3d 659, syllabus. The matter was remanded to

the trial court for resentencing. The trial court conducted the resentencing hearing and

imposed consecutive sentences.

{¶14} Before a trial court imposes consecutive sentences, it must make specific

findings which are delineated in R.C. 2929.14(C)(4). Specifically, the trial court must find

that “the consecutive service is necessary to protect the public from future crime or to

punish the offender.” Id

. It must also find that “consecutive sentences are not[Cite as State v. Stotts , 2024

- Ohio

- 747.]

disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public.” Id

. Finally, the court must find at least one of the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post

- release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

{¶15} R.C. 2953.08(G)(2) does not allow an appellate court to reverse or modify

a defendant's consecutive sentences using the principles and purposes of felony

sentencing as set forth in R.C. 2929.11(A) and (B) and the seriousness and recidivism

factors in R.C. 2929.12. State v. Gwynne

, 158 Ohio St.3d 279, 2019

- Ohio

- 4761, 141

N.E.3d 169, ¶13

- 18. (“ Gwynne II ”); State v. Jones

, 163 Ohio St.3d 242, 2020

- Ohio

- 6729,

169 N.E.3d 649, ¶39; State v. Toles

, 166 Ohio St.3d 397, 2021

- Ohio

- 3531, 186 N.E.3d

784, ¶10.

{¶16} An appellate court can reverse or modify the trial court's order of

consecutive sentences if it clearly and convincingly finds that the record does not support[Cite as State v. Stotts , 2024

- Ohio

- 747.]

the findings. The Ohio Supreme Court has recently spoken on the standard by which an

appellate court should review a trial court's consecutive sentences findings. State v.

Grant

, 5th Dist. Muskingum No. CT2023

- 0023, 2023

- Ohio

- 4614, 2023 WL 8716601, ¶

23. In State v. Gwynne

, 2023

- Ohio

- 3851,

-- N.E.3d

-- , ¶ 5, the Ohio Supreme Court

reconsidered its prior decision in State v. Gwynne

, 2022

- Ohio

- 4607,

-- N.E.3d

-- , and held

that “[t]he plain language of R.C. 2953.08(G)(2) requires an appellate court to defer to a

trial court's consecutive

- sentence findings, and the trial court's findings must be upheld

unless those findings are clearly and convincingly not supported by the record.” Grant at

¶ 23.

{¶17} The trial court made the requisite R.C. 2929.14(C)(4) findings on the record

and incorporated that language in its May 15, 2023 resentencing entry. At the

resentencing hearing, the trial court also noted that Stotts had been out of prison for four

months prior to his arrest and conviction. (T. 7, 9

- 11). Within four months of his release

from prison, Stotts was using and selling methamphetamine. (T. 8, 5

- 9). Stotts admitted

that he knew he was not allowed to possess a handgun but possessed a handgun

because he was selling drugs. (T. 8

- 9, 11

- 19). The trial court reviewed Stotts’ prior

criminal history, which included theft in 2009, drug abuse in 2001, failure to license a dog

at large, passing bad checks in 1999 and 1998, underage consumption in 1997, and

juvenile burglary and theft charges. (T. 10, 3

- 15).

{¶18} 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. We also find that the record in the case at bar supports the

trial court's findings under R.C. 2929.14(C)(4).[Cite as State v. Stotts , 2024

- Ohio

- 747.]

No arguably meritorious claims for appeal

{¶19} In Anders

, the United States Supreme Court held that 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.

Id

. 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 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

.

{¶20} Counsel in this matter followed the procedure in Anders and we reviewed

the merits of Stotts’ potential Assignment of Error. Upon our review of the record, we

found no error which would warrant a reversal of Stotts’ convictions or sentence. See,

State v. Mamone

, 5th Dist. Delaware No. 22 CAC 06 0042, 2023

- Ohio

- 1167, ¶ 37; State

v. Emery

, 5th Dist. Ashland No. 22

- COA

- 026, 2023

- Ohio

- 709, ¶ 21.

{¶21} The record discloses no errors prejudicial to Stotts’ rights in the proceedings

in the trial court. We therefore concur with appellate counsel that appellant's appeal is

without merit and wholly frivolous. An appeal is wholly frivolous if the record is devoid of

any legal points arguable on the merits. State v. Middaugh

, 5th Dist. Coshocton No. 02

CA 17, 2003

- Ohio

- 91, ¶ 13.[Cite as State v. Stotts , 2024

- Ohio

- 747.]

{¶22} In this case, the requirements in Anders have been satisfied. Upon our

independent review of the record, we agree with counsel's conclusion that no arguably

meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be

wholly frivolous under Anders

, grant counsel's request to withdraw, and affirm the

judgment of the Muskingum County Court of Common Pleas. See, State v. Hill

, 5th Dist.

Licking No. 15

- CA

- 13, 2016

- Ohio

- 1214, ¶ 20, appeal not allowed, 147 Ohio St.3d 1412,

2016

- Ohio

- 7455, 62 N.E.3d 185.

CONCLUSION

{¶23} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Delaney, P.J.,

Gwin, J. and

Hoffman, J., concur.