[Cite as State v. Swiger, 2017-Ohio-638.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2016 CA 00084
JOHN WILLIAM SWIGER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2015 CR 00164


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 21, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                DOUGLAS C. BOND
PROSECUTING ATTORNEY                           MORELLO & BOND
RONALD MARK CALDWELL                           700 Courtyard Centre
ASSISTANT PROSECUTOR                           116 Cleveland Avenue, NW
110 Central Plaza South, Suite 510             Canton, Ohio 44702
Canton, Ohio 44702
Stark County, Case No. 2016 CA 00084                                                         2

Wise, P. J.

       {¶1}   Appellant John Swiger appeals from the revocation of his community control

in the Court of Common Pleas, Stark County, stemming from his 2015 two-count felony

conviction. Appellee is the State of Ohio. The relevant facts leading to this appeal are as

follows.

       {¶2}   On February 24, 2015, appellant was indicted by the Stark County Grand

Jury on one count of burglary (R.C. 2911.12(A)(2)) and one count of robbery (R.C.

2911.02(A)(1) and/or (A)(2)). According to the trial court documents, appellant was

alleged to have entered a home and held a knife to a female victim in order to steal

cigarettes. Appellant initially entered a plea of not guilty by reason of insanity to each

charge.

       {¶3}   The trial court ordered an evaluation of appellant for competency to stand

trial. After the evaluation was completed, the trial court conducted a hearing on April 15,

2015. At that time, appellant appeared with counsel and stipulated to the competency

report. Upon review of the report, in conjunction with appellant’s stipulation, the trial court

found that appellant was competent to stand trial. At that time, appellant withdrew his

prior pleas and entered pleas of guilty to both of the aforesaid charges. The trial court

accepted the pleas and ordered a presentence investigation.

       {¶4}   At a subsequent hearing on May 6, 2015, appellant was sentenced to a

community control sanction of intensive supervised probation (“ISP”). The court further

ordered that it reserved the right, if community control should be revoked, to impose an

eight-year prison term on each count, to be served consecutively. The trial court also

provided appellant with his post-release control notification.
Stark County, Case No. 2016 CA 00084                                                         3


       {¶5}   About six months later, on November 16, 2015, appellant’s ISP officer filed

a motion to revoke or modify appellant’s community control sanction. The officer alleged

that appellant had (1) failed on two occasions to report to ISP as required, (2) failed to

complete the HOPE program, (3) failed to complete his required 200 hours of community

service, (4) failed to report to the day reporting staff as ordered, and (5) failed to complete

the ACCT Team requirements. A hearing on said motion was set for November 25, 2015,

but appellant failed to appear at that time. Appellant was thereafter arrested for failure to

appear, and an evidentiary hearing went forward on December 18, 2015. At that time,

appellant appeared with counsel and stipulated to the probable cause allegation and the

violations set forth in the motion to revoke.

       {¶6}   The trial court thereupon revoked community control and sentenced

appellant to an aggregate term of six years, finding the two offenses should be merged.

A final judgment entry was issued by the trial court on March 22, 2016.

       {¶7}   Appellant filed a notice of appeal on April 21, 2016. Appellate counsel for

appellant thereafter filed a conditional motion to withdraw and a brief pursuant to Anders

v. California, infra, asserting that the within appeal appeared to be frivolous. Counsel for

appellant has therein raised two potential assigned errors asking this Court to determine

whether the trial court erred in revoking his community control and imposing a prison

sentence:

       {¶8}   “I.    APPELLANT WAS PREJUDICED AS A RESULT OF THE

INEFFECTIVE ASSISTANCE OF HIS COUNSEL DURING THE PROBABLE CAUSE

AND SENTENCING HEARING FOR APPELLANT’S COMMUNITY CONTROL

VIOLATIONS.
Stark County, Case No. 2016 CA 00084                                                     4


      {¶9}   “II.   THE SENTENCE IMPOSED UPON THE APPELLANT WAS TOO

SEVERE IN LIGHT OF THE CIRCUMSTANCES THAT THE APPELLANT WAS FACED

[SIC] DURING HIS COMMUNITY CONTROL SANCTIONS AND UNDERLYING

CONDUCT THAT RESULTED IN THE IMPOSITION OF COMMUNITY CONTROL

SANCTIONS.”

      {¶10} Appellant was given an opportunity to file a pro se brief raising additional

assignments of error, and he has therein asserted as follows:

      {¶11} “III. UNPROFESSIONALISM BY MY ASSIGNED DEFENSE COUNSEL.”

      {¶12} In Anders v. California (1967), 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493,

the United States Supreme Court established five criteria which must be met before a

motion to withdraw may be granted: (1) A showing that appellant's counsel thoroughly

reviewed the transcript and record in the case before determining the appeal to be

frivolous; (2) a showing that a motion to withdraw has been filed by appellant's counsel;

(3) the existence of a brief filed by appellant's counsel raising any potential assignments

of error; (4) a showing that appellant's counsel provided to the appellant a copy of said

brief; and (5) a showing that appellant's counsel provided appellant adequate opportunity

to file a pro se brief raising any additional assignments of error appellant believes the

appellate court should address. See State v. Jennings, 5th Dist. Richland No. 98-CA-24,

1999 WL 547919.

      {¶13} Pursuant to Anders, 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. Once the defendant's counsel

satisfies the aforesaid requirements, the appellate court must fully examine the
Stark County, Case No. 2016 CA 00084                                                    5


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.

       {¶14} We find appellate counsel in this matter has adequately followed the

procedures required by Anders v. California, supra.

                                         I., II., III.

       {¶15} Turning to the merits of appellant's and appellant’s counsel’s aforesaid

potential Assignments of Error, the record indicates appellant received a six-year

sentence on the single merged robbery offense (felony of the second degree) upon his

revocation, even though the trial court had informed him at the 2015 sentencing that he

could face up to eight years on each count, with the possibility of consecutive sentences.

Appellant was represented by counsel during all pertinent phases of the case. The record

of the revocation hearing demonstrates that appellant made a knowing, voluntary, and

intelligent waiver of his rights to challenge the revocation and to require the State to

produce evidence of his multiple community control violations, and chose instead to

stipulate thereto. The six-year prison term thereupon imposed by the trial court was

neither a maximum term nor the rendering of consecutive sentences. See R.C.

2929.14(A)(2) and (C)(4).

       {¶16} On the proposed issue regarding felony sentencing, because we find

appellant's sentence is not one which was imposed pursuant to the statutory subsections

cited in R.C. 2953.08(G)(2)(a), we need only review whether appellant's sentence was

clearly and convincingly contrary to law per R.C. 2953.08(G)(2)(b). See State v. Ford, 5th
Stark County, Case No. 2016 CA 00084                                                     6


Dist. Guernsey No. 16 CA 04, 2016-Ohio-7495, ¶ 11. To the extent required pursuant to

statute, we have reviewed the pertinent portions of the record and we find the sentences

are within the prescribed sentencing ranges and are not otherwise contrary to law.

Furthermore, in light of the stipulations during the revocation hearing, any issues

regarding the effectiveness of appellant’s public defender representation during such

proceedings are not reflected in the record. In determining a claim of ineffective

assistance of counsel, our review is limited to the record before us. See State v. Prophet,

10th Dist. Franklin No. 14AP–875, 2015-Ohio-4997, ¶ 32.

       {¶17} Accordingly, the proposed Assignments of Error are overruled, and, after

independently reviewing the record, we agree with counsel's conclusion that no arguably

meritorious claims exist upon which to base an appeal. We therefore find the appeal to

be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the

judgment of the trial court.

       {¶18} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.

By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.


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