[Cite as State v. Lariche, 2020-Ohio-804.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 108512
                 v.                                :

MICHAEL LARICHE,                                   :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: DISMISSED
                 RELEASED AND JOURNALIZED: March 5, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
          Case Nos. CR-13-575887-C, CR-15-595648-A, and CR-16-611898-A


                                             Appearances:

                 Olivia A. Myers, for appellant.


LARRY A. JONES, SR., J.:

                   Defendant-appellant Michael Lariche (“Lariche”) filed a notice of

appeal of the trial court’s April 2, 2019 judgments resentencing him pursuant to this

court’s mandate in State v. Lariche, 8th Dist. Cuyahoga No. 106106, 2018-Ohio-

3581. Lariche was appointed counsel, and after counsel’s review of the record, she

filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

18 L.Ed.2d 493 (1967), seeking leave to withdraw as counsel and dismiss the appeal.
For the reasons that follow, we grant counsel’s request to withdraw and dismiss the

appeal.

              This appeal involves drug-related charges brought against Lariche in

three cases: Cuyahoga C.P. Nos. CR-13-575887-C, CR-15-595648-A, and CR-16-

611898-A. In the first two cases, Lariche violated his community control sanctions,

and in the third case he was charged with escape for removing his court-ordered

GPS monitoring device. After Lariche had violated his community control sanctions

several times, the trial court terminated the sanctions and sentenced Lariche to a

five-year prison term, which included consecutive terms.          Lariche appealed,

challenging the sentence.

              This court found that the trial court failed to make all the statutorily

mandated findings for the imposition of consecutive terms under R.C.

2929.14(C)(4) and incorporate the findings into the sentencing entries as required

by State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659; this court

therefore reversed the consecutive sentences and remanded for resentencing.

Lariche at ¶ 25-28. On remand, the trial court held a resentencing hearing and again

sentenced Lariche to an aggregate five-year prison sentence, which included

consecutive terms. This appeal follows.

              As mentioned, based on the belief that no prejudicial error occurred

in the trial court and that any ground for appeal would be frivolous, Lariche’s

counsel filed a motion to withdraw and dismiss the appeal under the authority of

Anders. This court granted Lariche approximately a month and a half after counsel’s
motion was filed to submit a pro se brief. That time has expired and no brief has

been filed.

               In Anders, the United States Supreme Court outlined the procedure

that counsel must follow to withdraw due to the lack of any meritorious grounds for

appeal. Specifically, if appointed counsel, after a conscientious examination of the

case, determines the appeal to be wholly frivolous, he or she should advise the court

of that fact and request permission to withdraw. Anders, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493, at 744. However, the request must be accompanied by a brief

identifying anything in the record that could arguably support the appeal. Id.

Counsel must also furnish the client with a copy of the brief, and the defendant must

be allowed sufficient time to file his or her own brief, pro se. Id.

               When these requirements have been met, the appellate court must

complete an independent examination of the trial court proceedings to determine

whether the appeal is “wholly frivolous.” Id. If the court, in its independent review,

determines that a possible issue exists, it must discharge current counsel and

appoint new counsel to prosecute the appeal. Id. If, however, the court determines

that the appeal is wholly frivolous, the appellate court will grant counsel’s motion to

withdraw and dismiss the appeal. Id.

               Former Loc.App.R. 16(C) of the Eighth District Court of Appeals set

forth the procedure regarding Anders briefs and defense counsel’s motions to

withdraw. The rule was amended, effective February 1, 2019, however, and now no

longer includes any procedure on Anders briefs and motions to withdraw. This
court has decided that the “absence of a local rule governing Anders briefs does not

prevent [it] from accepting these briefs nor from following the procedure the United

States Supreme Court outlined in Anders.” State v. Sims, 8th Dist. Cuyahoga No.

107724, 2019-Ohio-4975, ¶ 9. “As a result, we will continue to adhere to the

procedures outlined in Anders pertaining to both counsel and the court when

appointed appellate counsel files a motion to withdraw because an appeal would be

wholly frivolous.” Id. at ¶ 14.1

Potential Issue for Review under Anders

               Lariche’s appointed counsel reviewed the record relating to the

resentencing (the only issue that could be appealed), and concluded that she could

not make any meritorious arguments on Lariche’s behalf. Nonetheless, she presents

the imposition of consecutive sentences as a possible assignment of error for our

Anders review.

               Our review of felony sentences is under the standard provided in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 16.    Under R.C. 2953.08(G)(2), a reviewing court may overturn the

imposition of consecutive sentences only if it clearly and convincingly finds that




      1See  Sims for discussion involving different Ohio appellate courts’ views on Anders
briefs, and this court’s ultimate decision that “until the Ohio Supreme Court resolves the
split among the Ohio Appellate Districts regarding the application of Anders * * *, we
decline to adopt the reasoning” of the districts that no longer accept motions to withdraw
pursuant to Anders. Id. at ¶ 14.
either (1) “the record does not support the sentencing court’s findings under R.C.

2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.”

              Before a trial court may impose consecutive sentences, the court must

make specific findings mandated by R.C. 2929.14(C)(4) and then incorporate those

findings in the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659, ¶ 37. The trial court is not required to state its reasons to

support its findings, nor is it required to give a rote recitation of the statutory

language. Id. “As long as the reviewing court can discern that the trial court engaged

in the correct analysis and can determine that the record contains evidence to

support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.

              R.C. 2929.14(C)(4) authorizes the court to order consecutive service

of multiple sentences if it finds that (1) it is necessary to protect the public from

future crime or to punish the offender; (2) it is not disproportionate to the

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

public; and (3) one of the following applies (a) the offender committed the offense

while awaiting trial or sentencing, under community control monitoring, or under

postrelease control for a prior offense; (b) at least two of the offenses caused harm

so great and unusual that no single term for any offense adequately reflects the

seriousness of the offender’s conduct; or (c) the offender’s history of criminal

conduct demonstrates the necessity of consecutive sentences to protect the public

from future crime. State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197,

2016-Ohio-709, ¶ 6.
              In the first case (Case No. CR-575887-C), the trial court sentenced

Lariche to concurrent terms on each of the two counts, to be served consecutive to

the sentences in the other two cases (Case Nos. CR-595648-A and CR-611898-A),

and the trial court made the following findings on the record:

      The Court finds [consecutive sentences] are necessary to protect the
      public and punish the offender and not disproportionate to the
      seriousness of the conduct, and the crimes were committed while
      awaiting trial or sentencing or under sanction or under postrelease
      control, and that the offender’s criminal history shows that consecutive
      terms are necessary to protect the public.

              The second instance in which the trial court imposed consecutive

sentences was in Case No. CR-611898-A, where it ordered the sentence on the sole

count to run consecutive to the sentences in the other two cases (Case Nos. CR-

575887-C and CR-595648-A). In doing so, the court made the following findings:

      The Court finds that [consecutive sentences are] necessary to protect
      the public and punish the offender and not disproportionate to the
      seriousness of the conduct, and the crimes were committed while
      awaiting trial or under sentencing or under sanction or under
      postrelease control, and that the offender’s criminal history shows that
      consecutive terms are needed to protect the public.

              The findings were repeated in the trial court’s sentencing judgment

entries. Therefore, the trial court made the statutorily mandated findings for the

imposition of consecutive sentences and incorporated those findings into its

sentencing judgment entries as required under Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 37.

              Upon further review, we do not find, by clear and convincing

evidence, that the record does not support the trial court’s consecutive sentence
findings, or that the sentence is otherwise contrary to law. On this record, therefore,

we find counsel’s request to withdraw well taken.

               Accordingly, pursuant to Anders, counsel’s request to withdraw is

granted, and the appeal is dismissed.

               Dismissed.

      It is ordered that appellee recover from appellant costs herein taxed.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



LARRY A. JONES, SR., JUDGE

EILEEN T. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
