[Cite as State v. Russell,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25132

vs. : T.C. CASE NO. 2011 CR 3665

ROBERT T. RUSSELL : (Criminal Appeal from the Common Pleas Court) Defendant-Appellant :

.........

OPINION

Rendered on the 21st day of December, 2012.

.........

Mathias H. Heck, Jr., Prosecuting Attorney, by Carley J. Ingram, Assistant Prosecuting Attorney, Atty. Reg. No. 0020084, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

Michael H. Holz, Atty. Reg. No. 0031902, 507 Wilmington Avenue, Suite 2, Dayton, Ohio 45420 Attorney for Defendant-Appellant

.........

GRADY, P.J.:

{¶ 1} Defendant Robert Russell appeals his convictions and sentence for three counts

each of aggravated robbery and felonious assault, all with firearm specifications.

{¶ 2} On October 24, 2011, Robert Lyons and Jennifer Morgan met Defendant at a

gas station to purchase heroin from him. At Defendant’s request, Lyons and Morgan 2

followed him to a residential area a short distance away. When they stopped, Defendant

pointed a gun into the car in which Lyons and Morgan were riding and demanded all of their

money. Lyons grabbed for the gun, and the two men struggled. When Lyons pushed on the

accelerator and tried to drive away, Defendant began shooting at the car. One of the bullets

went through the headrest of the front passenger seat, striking Morgan in the neck. As a

result of that shot, Morgan is paralyzed from the chest down.

{¶ 3} The following month, Defendant was indicted on two counts of aggravated

robbery (deadly weapon), R.C. 2911.01(A)(1), felonies of the first degree; one count of

aggravated robbery (serious harm), R.C. 2911.01(A)(3), a felony of the first degree; two

counts of felonious assault (deadly weapon), R.C. 2903.11(A)(2), felonies of the second

degree; and one count of felonious assault (serious harm), R.C. 2903.11(A)(1), a felony of the

second degree. Each charge carried a three-year firearm specification.

{¶ 4} In January 2012, Defendant pled no contest to all charges and specifications.

The trial court conducted a hearing to determine whether any of the charges were allied

offenses of similar import. At sentencing, the court merged the aggravated robbery and

felonious assault charges with regard to Lyons and the two counts each of felonious assault

and aggravated robbery with regard to Morgan. The court also merged all six firearm

specifications. The court sentenced Defendant to twelve years in prison.

{¶ 5} Defendant filed a timely notice of appeal. His appellate counsel filed an

Anders brief, Anders v. California,

,

,

(1967),

stating that he could find no potentially meritorious issues for appellate review. We notified

Defendant of his appellate counsel’s representations and afforded him ample time to file a pro 3

se brief. None has been received. This case is now before us for our independent review of

the record. Penson v. Ohio,

,

,

(1988).

{¶ 6} Appellate counsel identifies two potential errors for review: the validity of

Defendant’s plea and the length of his sentence.

{¶ 7} An appellate court must determine whether the record affirmatively

demonstrates that a defendant’s plea was knowing, intelligent, and voluntary; otherwise, the

plea has been obtained in violation of due process and is void. Boykin v. Alabama,

,

,

. The record of the plea hearing in this case shows

that the trial court meticulously complied with Crim.R. 11(C), and properly found that

Defendant’s pleas were knowingly, intelligently and voluntarily entered.

{¶ 8} The trial court thoroughly explained the possible sentences that Defendant

could receive for each individual charge and specification, as well as the possible maximum

aggregate sentence of 75 years. The court cautioned Defendant that the minimum aggregate

prison sentence that he would receive was nine years. Additionally, the court advised

Defendant that he was not eligible for community control, “shock incarceration or an intensive

program prison.”

{¶ 9} Defendant denied being under the influence of drugs or alcohol, and he stated

that he was able to read the plea form. The trial court confirmed that Defendant is a United

States citizen and that he understood each of the rights he was waiving by pleading no contest.

The State presented the facts upon which each of the charges was based prior to Defendant

entering his no contest pleas. The trial court accepted Defendant’s pleas and found him

guilty of each charge. 4

{¶ 10} The record demonstrates that Defendant’s no contest pleas were knowingly,

intelligently, and voluntarily entered. Therefore, the assigned potential error with respect to

the validity of his pleas lacks arguable merit.

{¶ 11} We next turn to the issue of Defendant’s sentence. “A trial court has broad

discretion in sentencing a defendant and a reviewing court will not interfere with the sentence

unless the trial court abused its discretion.” State v. Bray, 2d Dist. Clark No. 2010CA14,

, citations omitted. “Abuse of discretion” has been defined as an

attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.,

,

(1985). It is to be expected that most instances of

abuse of discretion will result in decisions that are simply unreasonable, rather than decisions

that are unconscionable or arbitrary.

{¶ 12} In State v. Barker,

,

,

(2d Dist.), at ¶ 36-37, we wrote:

The trial court has full discretion to impose any sentence within the authorized

statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum, consecutive, or more than minimum

sentences. State v. Foster,

,

,

,

at paragraph 7 of the syllabus. * * *

When reviewing felony sentences, an appellate court must first

determine whether the sentencing court complied with all applicable rules and

statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order

to find whether the sentence is contrary to law. State v. Kalish,

,

,

. If the sentence is not clearly and

convincingly contrary to law, the trial court’s decision in imposing the term of

imprisonment must be reviewed under an abuse of discretion standard.

{¶ 13} In this case, Defendant’s twelve-year sentence falls within the permissible

statutory range. Thus, is not clearly and convincingly contrary to law.

{¶ 14} Prior to imposing sentence, the trial court reviewed a transcript of the hearing

held on the issue of allied offenses, the pre-sentence investigation report, Defendant’s

sentencing memoranda, letters submitted on Defendant’s behalf, a letter from Lyons, and a

recorded statement by Morgan. The court also considered the statements made by Defendant

and his attorney.

{¶ 15} The court explained that it was imposing sentence after considering the

purposes and principles of sentencing as well as the seriousness and recidivism factors. The

trial court noted that Defendant had prior criminal convictions as well as previous juvenile

court adjudications of delinquency. He was, in fact, on community control at the time of the

offenses in the present case. Additionally, the court considered the extent of the grievous

injury done to Morgan. The assigned potential error with respect to the sentences the court

imposed lacks arguable merit.

{¶ 16} In addition to reviewing the two possible issues for appeal raised by

Defendant’s appellate counsel, we have conducted an independent review of the trial court’s

proceedings and find no error having arguable merit. Accordingly, the judgment of the trial

court will be affirmed.

Donovan, J., and Hall, J., concur. 6

Copies mailed to:

Carley J. Ingram, Esq. Michael H. Holz, Esq. Robert T. Russell Hon. Timothy N. O’Connell