[Cite as State v. Gibson , 2011-Ohio-4540.]

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

STATE OF OHIO : : Appellate Case No. 2010-CA-21 Plaintiff-Appellee : : Trial Court Case No. 10-CRB-41
v. :

: JAMES ELDON RAY GIBSON : (Criminal Appeal from

: ( Common Pleas Court) Defendant-Appellant :
:

. . . . . . . . . . . O P I N I O N Rendered on the 9 th day of September, 2011.

. . . . . . . . . . . NICK A. SELVAGGIO, Atty. Reg. #0055607, Champaign County Pr osecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee RONALD R. BOBLITT, Atty. Reg. #0033097, 2 West Columbia Street, Suite 220, Springfield, Ohio 45502 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant James Eldon Ray Gibson appeals from his conviction and sentence for Unlawful Sexual Conduct with a Minor, in violation of R.C. 2907.04(A) and (B)(3), a felony of the third-degree, following a plea of guilty. Gibson’s a ssigned counsel has filed a brief under the authority of Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, reciting that he could find no potential assignment s of error having arguable meri t. Neither can we. Accordingl y, the judgment of the trial co urt is 2

 Affirmed.

I {¶ 2} In March 2010, Gibson was charged by indictment with one count of Forcible Rape, in violation of R.C. 2907.02(A)(2); one count of Unlawful Sexual Conduct with a Minor, in violation of 2907.04(A) and (B)(3); and one count of Gross Sexual Imposition, in violation of R.C. 2907.05(A)(1). All offenses involved the same minor victim. The first two counts alle ged conduct occurring some time between May and August, 2008, when th e victim was thirteen years old. The last count alleged condu ct on February 10, 2010, when the victim was fifteen years old. Gibson was 39 at the time of the conduct alleged in the first two counts; he was 41 at the time of the conduct alleged in the third count. {¶ 3} Gibson alleged, in his statement to the investigating police officer, that the charged conduct was all consensual. The victim alleged that it was not consensual. {¶ 4} In a plea bargain, Gibson pled guilty to Unlawful Sexual Conduct with a Minor, a third-degree felony, and the State dismissed the other two counts. Gibson was sentenced to four ye ars for the offense, to be served concurrently with an eleven-m onth sentence he was then serving for Permitting Drug Abuse. He was also fined $200, 1 and was classified as a Tier II sexual offender, with reporting and registration requiremen ts appropriate to that category. {¶ 5} From his conviction and sentence, Gibson appeals.

II {¶ 6} Gibson’s assigned appellate counsel has filed a brief under the authority of Anders v. California , reciting that counsel has been unable to find any potential assignments of error having arguable merit. By entry filed herein on May 4, 2011, we aff orded Gibson an opportunity to file his own, pro se brief within 60 days. He has not done so. {¶ 7} Counsel identified one potential assignment of error that he considered, but found lacking any arguable merit: “THE TRIAL COURT ERRED BY ABUSING ITS DESCRETION [sic] BY IMPOSING FOUR YEARS INCARCERATION.” {¶ 8} We agree that this potential assignment of error has no arguable merit. Gibson could have received a sentence of

1 The trial court announced a fine of $250 at the sentencing hearin g, but the judgment entry reflec ts a fine of $200. If the judgment entry, which controls, is erroneous in this regard, that error obviously works to Gibson ’s benefit, and is not prejudi cial to him. 3

 one, two, three, four, or five years for the offense to which he pled guilty. Or, he could have received community control san ctions as a sentence. We find no arguable merit to a claim that the trial court abused its discretion in imposing a four-year sentence. {¶ 9} To begin with, Gibson received a benefit, through the plea bargain, of avoiding conviction on the more serious charge of Forcible Rape. Although Gibson did indicate some remorse, in his statement to the investigating police officer, he downplay ed his responsibility by claiming that the victim had initiated sexual intercourse with him, and that he had been cut off from his lon g-time girlfriend by a no-contact order in another case in which he and she were co-defendants (presumably leaving him more vulnerable to the seductive wiles of his victim). The victim indicated that the sexual intercourse was not consensual at all, occurring over her protestations. And, the victim’s account is far more credible than Gibson’s, which had the victim initiating, and having, vagi nal intercourse with him while he was seated at a kitchen table with her parents, playing cards. {¶ 10} Furthermore, this was not Gibson’s first offense. He had prior convictions for Disorderly Conduct by Intoxication, Domestic Violence (as a fourth-degree misdemeanor), Assault, Driving Under a Financial Responsibility Act Suspens ion, Possession of Drug Paraphernalia and Possession of Marijuana, Permitting Drug Abuse (a fifth-degree felony), and Obstructing Of ficial Business and Disorderly Conduct. Gibson had received ten days in jail (in addition to 20 days suspended) on the Domestic Viole nce conviction; fines and costs on the other misdemeanor convictions; and, initially, three years of community control sanctions on the Permitting Drug Abuse conviction. {¶ 11} Gibson received two “second-chances” for violations of his community control sanction conditions for Permitting Drug Abuse, in January and in August 2009, before finally havi ng his community control sanction s revoked for a violation in Feb ruary 2010. This is ample justification for the trial court’s findin g, announced orally at the sentencing hearing “that Defendant is not amenable to community control.” {¶ 12} We have performed our duty, under Anders v. California , to review the entire record in search of any potential assignments of error having arguable merit. We have found none. The plea colloquy was thorough. Gibson and his trial counsel
were both afforded th e opportunity to be heard at the sentencing hearing, an d both availed themselves of that opportunity. At the conclusion of both the plea and sentencing hearings, the trial co urt asked counsel for both parties if they wished to “seek any thing else today.” Each time, defense counsel responded in the negative. 4

 III {¶ 13} After reviewing the entire record, we conclude that this a ppeal is wholly frivolous. Accordingly, the judgment of
the trial court is Affirmed.

. . . . . . . . . . . . . GRADY, P.J., and HALL, J., concur.

Copies mailed to: Nick Selvaggio Ronald Boblitt James Eldon Ray Gibson Hon. Roger B. Wilson