[Cite as State v. Missler, 2016-Ohio-3204.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 HURON COUNTY 

State of Ohio Court of Appeals No. H-15-012 

 

 Appellee Trial Court No. CRI-2015-0047 

v. 

Andrew Missler DECISION AND JUDGMENT

Appellant Decided: May 27, 2016 

* * * * * 

 Thomas J. McGuire, for appellant. 

* * * * * 

 PIETRYKOWSKI, J. 

{¶ 1} This is an Anders appeal. Appellant, Andrew Missler, appeals the judgment 

of the Huron County Court of Common Pleas, convicting him of one count of possession 

of heroin in violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth degree, and 

sentencing him to a six-month prison term to be served concurrently to a three-year 

sentence in another matter. For the following reasons, we affirm. 
2.

I. Facts and Procedural Background 

{¶ 2} The transcript reveals that appellant was indicted on two counts of felony 

child endangering, felonies of the third degree, in case No. CRI-2015-0067. 

Subsequently, appellant was charged by way of information with possession of heroin in 

violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth degree, in case No. 

CRI-2015-0047. As part of a negotiated plea agreement, appellant waived his right to a 

grand jury indictment on the charge of possession of heroin, and pleaded guilty to that 

charge. In addition, appellant pleaded guilty to one count of felony child endangering in 

the other case. In exchange, the state dropped the second count of felony child 

endangering, agreed not to pursue other charges that were pending, and recommended 

that the sentences be ordered to be served concurrently. The trial court thereafter 

engaged in a detailed Crim.R. 11 plea colloquy with appellant, following which the court 

accepted appellant’s pleas and found him guilty. 

{¶ 3} At sentencing, the court heard statements from the state, one of the relatives 

of the victim, and from appellant. Thereafter, the court, expressly considering the 

principles and purposes of sentencing in R.C. 2929.11 and balancing the seriousness and 

recidivism factors in R.C. 2929.12, sentenced appellant to the maximum prison term of 

36 months on the count of felony child endangering, and six months on the count of 

possession of heroin. The court further ordered the sentences to be served concurrently. 

{¶ 4} Appellant has timely appealed his conviction and sentence. Prior to the 

briefs being submitted, however, we recognized that appellant had only filed a notice of 
3.

appeal in case No. CRI-2015-0047. Because the cases had not been consolidated in the 

trial court, and because appellant had not filed a notice of appeal in case No. CRI-2015-

0067, we determined that this appeal is limited to his conviction for possession of heroin 

in case No. CRI-2015-0047. 

{¶ 5} Subsequently, appointed counsel for appellant filed a brief and requested 

leave to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 

L.Ed.2d 493 (1967). Under Anders, if counsel, after a conscientious examination of the 

case, determines it to be wholly frivolous, counsel should so advise the court and request 

permission to withdraw. Id. at 744. This request, however, must be accompanied by a 

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

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

allow the client sufficient time to raise additional matters. Id. Once these requirements 

have been satisfied, the appellate court must then conduct a full examination of the 

proceedings held below to determine if the appeal is indeed frivolous. 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 it may proceed to 

a decision on the merits if state law so requires. Id.

II. Assignment of Error

{¶ 6} In his Anders brief, counsel has assigned the following potential error for our 

review: 
4.

 I. Whether appellant’s sentence on a fifth degree felony to a term of 

incarceration was an abuse of discretion. 

{¶ 7} Appellant has not filed a pro se brief or otherwise raised any additional 

matters. 

III. Analysis

{¶ 8} We review a felony sentence under the two-prong approach set forth in R.C. 

2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, 

¶ 11. R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, modify, 

or vacate and remand a disputed sentence if it clearly and convincingly finds either of the 

following: 

 (a) That the record does not support the sentencing court’s findings 

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of 

section 2929.14, or division (I) of section 2929.20 of the Revised Code, 

whichever, if any, is relevant; 

 (b) That the sentence is otherwise contrary to law. 

{¶ 9} Relevant here, R.C. 2929.13(B)(1)(b)(x) provides that a trial court has 

discretion to impose a prison term for a felony of the fourth or fifth degree that is not an 

offense of violence if “[t]he offender at the time of the offense was serving, or the 

offender previously had served, a prison term.” In its sentencing entry, the court found 

that appellant had previously served a prison term, as detailed in the presentence 
5.

investigation report. Thus, we conclude that the record supports the court’s finding under 

that section. 

{¶ 10} We further conclude that appellant’s sentence is not otherwise contrary to 

law. Here, the trial court appropriately considered R.C. 2929.11 and 2929.12 when 

fashioning its sentence, and the six-month prison term is within the range of potential 

sanctions for a fifth-degree felony. R.C. 2929.14(A)(5). 

{¶ 11} Therefore, we hold that the trial court did not err when it sentenced 

appellant to a prison term on the fifth-degree felony of possession of heroin. 

Accordingly, counsel’s proposed assignment of error is not well-taken. 

IV. Conclusion

{¶ 12} We have conducted an independent review of the record, as required by 

Anders, and find no issue of arguable merit for appeal. Therefore, counsel’s motion to 

withdraw is hereby granted. 

{¶ 13} For the foregoing reasons, the judgment of the Huron County Court of 

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant 

to App.R. 24. 

{¶ 14} The clerk is ordered to serve all parties with notice of this decision. 

Judgment affirmed. 
6.

 State v. Missler 

 C.A. No. H-15-012 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Stephen A. Yarbrough, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.