[Cite as State v. Warford, 2018-Ohio-4055.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals Nos. L-17-1307 

 L-17-1308 

 Appellee 

 Trial Court Nos. CR0201501526 

v. CR0201702385 

Brian Warford DECISION AND JUDGMENT

Appellant Decided: October 5, 2018 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 James F. Tafelski, Assistant Prosecuting Attorney, for appellee. 

 Lawrence A. Gold, for appellant. 

* * * * * 

SINGER, J. 

Introduction 

{¶ 1} In this consolidated matter, appellant, Brian Warford, challenges the 

November 16, 2017 judgments of the Lucas County Court of Common Pleas, in which he 

was sentenced to 42 months of incarceration for escape in violation of R.C. 
2.

2921.34(A)(1) and (C)(2)(b), a felony of the third degree, and for domestic violence in 

violation of R.C. 2919.25(A) and (D), a felony of the fourth degree. Finding no error, we 

affirm. 

Background 

{¶ 2} On March 27, 2015, appellant was indicted on the escape charge. Appellant 

pled not guilty in April 2015, but eventually withdrew the plea and pled no contest on 

May 19, 2015. Appellant was sentenced to three years of community control on July 9, 

2015, and the sentencing court reserved a 30-month sentence to be imposed in the event 

appellant violated his community control conditions. 

{¶ 3} Specifically, at the July 9, 2015 sentencing hearing the trial court stated as 

follows: “A violation of the law—of the terms and conditions of community control, 

violation of any law * * * may lead to a longer, more restrictive sanction. The Court may 

impose a sentence of 30 months as to the charge of escape.” This is case No. CR0201501526. 

{¶ 4} Appellant violated community control several times. For instance, he did so 

in both October 2015 and September 2016, to which the trial court responded by 

continuing his community control sanction. 

{¶ 5} On August 10, 2017, however, appellant was indicted on the domestic 

violence charge, along with another charge for disrupting public services in violation of 

R.C. 2909.04(A)(1) and (C), a felony of the fourth degree. He pled no contest to the 

domestic violence, and the charge for disrupting public services was dismissed. 

Appellant was sentenced to 12 months of incarceration. This is case No. CR0201702385. 
3.

{¶ 6} This domestic violence conviction was found to be a violation of appellant’s 

community control conditions. This led the trial court to also impose the reserved 30-

month sentence of CR0201501526. The sentences were set to run consecutively, for a 

total prison term of 42 months. The judgments were journalized November 16, 2017. 

{¶ 7} A timely notice of appeal was filed on December 15, 2017, and appellant 

now appeals. 

Anders Brief 

{¶ 8} On May 15, 2018, appellant’s counsel filed a request to withdraw pursuant 

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel 

asserted that, after thoroughly reviewing the transcript of the proceedings in the trial court 

and the applicable case law, no meritorious assignments of error could be presented. 

Counsel did, however, submit the following potential assignment of error: 

 Appellant’s sentence should be vacated due to the trial court’s 

failure to comply with R.C. 2929.11 and 2929.12. 

{¶ 9} The state also filed an Anders brief, concurring with the conclusion of 

appellant’s counsel that there was no arguable basis for a valid assignment of error and 

urging this court to permit counsel to withdraw. Appellant did not file a pro se brief. 

{¶ 10} The procedure to be followed by appointed counsel who desires to 

withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as 

State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). 
4.

{¶ 11} In Anders, the U.S. Supreme Court found 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. Anders at 744. This request must be 

accompanied by a brief identifying anything in the record that could arguably support the 

appeal. Id. In addition, counsel must furnish the client with a copy of the brief and 

request to withdraw and allow the client sufficient time to raise any matters the client so 

chooses. Id. Once the requirements are fulfilled, the appellate court must conduct a full 

examination of the proceedings and decide if the appeal is indeed frivolous. Id. If the 

appellate court determines the argument is frivolous, it may grant counsel’s request to 

withdraw and dismiss the appeal or it may proceed to a decision on the merits. Id. 

{¶ 12} On June 29, 2018, we released State v. Wenner, 6th Dist. Sandusky No. 

S-18-4, 2018-Ohio-2590, in which this court pronounced that it will no longer accept 

Anders briefs in criminal appeals. Nevertheless, because this case was filed before 

Wenner, we will proceed with the process and role customarily undertaken pursuant to 

Anders.

{¶ 13} We find appellant’s counsel has satisfied the requirements of Anders, 

setting forth one potential assignment of error. Consequently we will address the 

potential error put forth by counsel, and then follow with our examination of the record. 

Potential Assignment of Error 

{¶ 14} Appellant’s counsel asserts, as a potential error, that the trial court failed to 

comply with R.C. 2929.11 and 2929.12, when imposing sentence upon appellant. 
5.

{¶ 15} R.C. 2929.11(A) pertinently provides, “[t]he overriding purposes of felony 

sentencing are to protect the public from future crime by the offender and others and to 

punish the offender using the minimum sanctions.” It follows, “the sentencing court shall 

consider the need for incapacitating the offender, deterring the offender and others from 

future crime, rehabilitating the offender, and making restitution to the victim of the 

offense, the public, or both.” See R.C. 2929.11(A); State v. Craig, 6th Dist. Wood No. 

WD-14-061, 2015-Ohio-1479, ¶ 10. A felony sentence, therefore, “shall be reasonably 

calculated to achieve the two overriding purposes * * * set forth in [R.C. 2929.11(A)], 

commensurate with and not demeaning to the seriousness of the offender’s conduct and 

its impact upon the victim, and consistent with sentences imposed for similar crimes 

committed by similar offenders.” See R.C. 2929.11(B); Craig. 

{¶ 16} R.C. 2929.12(A) pertinently provides, “a court that imposes a sentence 

under this chapter upon an offender for a felony has discretion to determine the most 

effective way to comply with the purposes and principles of sentencing.” In this 

determination, “R.C. 2929.12 provides a non-exhaustive list of factors the court must 

consider in determining the relative seriousness of the underlying crime and the 

likelihood that the defendant will commit another offense in the future.” State v. 

Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26. “The factors 

include: (1) the physical, psychological, and economic harm suffered by the victim, 

(2) the defendant’s prior criminal record, (3) whether the defendant shows any remorse, 

and (4) any other relevant factors.” Id. 
6.

{¶ 17} A sentencing court is not required to use any specific language or make 

specific findings to demonstrate that it considered the applicable sentencing criteria under 

R.C. 2929.11 and 2929.12. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 

(2000). 

{¶ 18} In this case, at the November 14, 2018 sentencing hearing, the trial court 

elaborated on its reasons for sentencing appellant in the manner in which it did, as 

follows: 

 So you’re on community control for a felony. You picked up a new 

felony offense of escape, and you remained on community control in both 

of them. Now in 2017-2385 is your second felony that has occurred while 

on community control, and the new one is a felony offense of violence, 

being domestic violence, a felony of the fourth degree. I understand the 

position of the parties, but it is my finding that [appellant] is not amenable 

to community control and that prison is consistent with the principles and 

purposes of sentencing. Therefore, as it relates to 2015-1526, I impose a 

prison term of 30 months; 2017-2385, 12 months. These sentences are 

ordered to be served consecutive to one another for [a] total stated prison 

term of 42 months. Consecutive sentences are necessary to protect the 

public from future crime and to punish the defendant, not disproportionate 

to the seriousness of the defendant’s conduct or the danger he possess to the 
7.

public or himself. I find that [appellant’s] criminal history deserves 

consecutive sentences. 

{¶ 19} Although neither statute is referenced in the trial court’s open-court 

statement, we find the rationale demonstrates the necessary considerations under the 

sentencing criteria outlined in R.C. 2929.11 and 2929.12. Moreover, in both of the 

November 16, 2017 sentencing entries the trial court states verbatim as follows: 

 Being necessary to fulfill the purposes of R.C. 2929.11 and 

2929.14(C)(4), consecutive sentence[s] are necessary to protect the public 

from future crime or to punish the offender and are not disproportionate to 

the seriousness of the offender’s conduct and to the danger the offender 

poses to the public. The court further finds the defendant was on 

community control, and the defendant’s criminal history demonstrates that 

consecutive sentences are necessary to protect the public, therefore the 

sentences are ordered to be served consecutively. 

{¶ 20} Although R.C. 2929.12 is not specifically cited in the sentencing entries, 

we find the provided rationale demonstrates the necessary considerations. Consequently, 

we hold the trial court complied with R.C. 2929.11 and 2929.12. Appellant’s potential 

assignment of error is not well-taken. 

 
8.

Our Examination

{¶ 21} Last is our examination of the record to determine whether this appeal is 

indeed frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of the 

record does not reveal reversible error. Finding this appeal to be wholly frivolous and 

without merit, counsel’s request to withdraw is granted. 

Conclusion 

{¶ 22} The November 16, 2017 judgments of the Lucas County Court of Common 

Pleas are affirmed. Appellant is ordered to pay the costs of this consolidated appeal 

pursuant to App.R. 24. The clerk is ordered to serve all parties with notice of this 

decision. 

Judgments affirmed. 

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. 

_______________________________ 

Christine E. Mayle, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE