State v. Tate

• Decision Date: 17 June 2022
• Docket Number: 29301
• Citation: 2022 Ohio 2059
• Parties: STATE OF OHIO Plaintiff-Appellee v. LATRE TATE Defendant-Appellant
• Court: Ohio Court of Appeals

2022-Ohio-2059

STATE OF OHIO Plaintiff-Appellee
v.
LATRE TATE Defendant-Appellant

No. 29301

Court of Appeals of Ohio, Second District, Montgomery

June 17, 2022

Criminal Appeal from Common Pleas Court Trial Court Case Nos. 2020-CR-177, 2020-CR-2589, 2021-CR-2172/1

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

TRAVIS KANE, Atty. Reg. No. 0088191, Attorney for Defendant-Appellant

OPINION

DONOVAN, J.

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{¶ 1} Defendant-appellant Latre Tate appeals from his conviction for unauthorized use of a motor vehicle in violation of R.C. 2913.03(A), a misdemeanor of the first degree, in Montgomery C.P. No. 2021 -CR-2172/1. Tate also appeals from the trial court's judgments that he had violated the terms of his community control in Montgomery C.P. Nos. 2020-CR-2589 and 2020-CR-177 by being convicted of a new offense in Case No. 2021-CR-2172/1; the trial court revoked his community control in those cases and imposed a sentence of 18 months in each case, to be served concurrently with each other and with the sentence in Case No. 2021-CR-2172/1.

{¶ 2} Tate's appellate counsel filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous issues for appeal, and he asks permission to withdraw as counsel. Counsel has identified three potential assignments of error: 1) whether the trial court complied with Crim.R. 11 when it accepted Tate's guilty plea; 2) whether the trial court properly found that Tate had violated the terms of his probation; and 3) whether the trial court erred by sentencing Tate to 18 months in prison. On March 21, 2022, we notified Tate that his counsel had found no meritorious claims to present on appeal and granted him 60 days to file a pro se brief assigning any errors for review. Tate has not filed a brief.

Procedural History

{¶ 3} On September 23, 2020, Tate entered guilty pleas to one count of possession

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of cocaine in violation of R.C. 2925.11(A), felonies of the fourth degree, in each of two cases: Case Nos. 2020-CR-2589 and 2020-CR-177. On October 20, 2020, the trial court sentenced Tate to community control in both of those cases.

{¶ 4} On June 25, 2021, Tate was arrested for unauthorized use of a motor vehicle. On July 6, 2021, the State filed a notice of revocation of Tate's community control in Case Nos. 2020-CR-2589 and 2020-CR-177 based on that arrest. On July 9, 2021, Tate was indicted in Case No. 2021-CR-2172/1 for one count of robbery (use of force), one count of burglary, one count of trespass in a habitation, and one count of possession of cocaine; all of these charges stemmed from Tate's arrest on June 25, 2021. At his arraignment on July 13, 2021, Tate stood mute, and the trial court entered a plea of not guilty on his behalf.

{¶ 5} On October 1, 2021, Tate pled guilty to one count of unauthorized use of a vehicle, a misdemeanor of the first degree, by way of bill of information, in exchange for the dismissal of the four felony counts in Case No. 2021-CR-2172/1. On October 20, 2021, Tate admitted to violating the terms of his community control in Case Nos. 2020-CR-2589 and 2020-CR-177; he was sentenced to 18 months in prison in each case, with the sentences to run concurrently to one another. On the same day, the trial court sentenced Tate to 180 days in jail in Case No. 2021 -CR-2172/1, to be served concurrently with the sentences imposed in the other cases, for an aggregate sentences of 18 months in prison.

{¶ 6} Tate now appeals.

Analysis

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{¶ 7} Under Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we must conduct an independent review to determine whether Tate's appeal is wholly frivolous. "Anders equates a frivolous appeal with one that presents issues lacking in arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal." State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, "[a]n issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal." Id., citing State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4.

{¶ 8} Because they are interrelated, we will discuss the first and third potentially meritorious assignments of error raised by counsel together:

WHETHER THE TRIAL COURT COMPLIED WITH ALL REQUIRED ELEMENTS OF OHIO RULES OF

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