[Cite as State v. Kocak, 2017-Ohio-945.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO                                    )    CASE NO. 15 MA 0173
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )    OPINION
                                                 )
ANDREW KOCAK                                     )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                             Criminal Appeal from the Court of
                                                      Common Pleas of Mahoning County,
                                                      Ohio
                                                      Case No. 14 CR 915C

JUDGMENT:                                             Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                               Atty. Paul J. Gains
                                                      Mahoning County Prosecutor
                                                      Atty. Ralph M. Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 West Boardman Street, 6th Floor
                                                      Youngstown, Ohio 44503

For Defendant-Appellant:                              Atty. Ryan D. Ingram
                                                      7330 Market Street
                                                      Youngstown, Ohio 44512


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                      Dated: March 15, 2017
[Cite as State v. Kocak, 2017-Ohio-945.]
WAITE, J.


        {¶1}     Appellant Andrew Kocak appeals a September 10, 2015 Mahoning

County Common Pleas Court judgment entry finding him guilty of violating his

probation and reimposing his original sentence. Appellant’s counsel filed a no merit

brief requesting leave to withdraw.          A complete review of the case reveals no

appealable issues. Accordingly, appointed counsel’s motion to withdraw is granted

and the convictions and sentence are affirmed.

                                  Factual and Procedural History

        {¶2}     On September 18, 2014, Appellant was indicted on the following

charges: endangering children, a felony of the second degree in violation of R.C.

2919.22(B)(1)(E), (1)(d); corrupting another with drugs, a felony of the fourth degree

in violation of R.C. 2925.02(A)(4)(a), (C)(3), felonious assault, a felony of the second

degree in violation of R.C. 2903.11(A)(1), (D), and two counts of intimidation, felonies

of the third degree in violation of R.C. 2921.04(B)(2), (D). Pursuant to a Crim.R. 11

plea agreement, Appellant pleaded guilty to all charges. According to the agreement,

Appellant would be eligible for judicial release after six months and the state agreed

to stand silent regarding judicial release.

        {¶3}     The trial court imposed the following sentence:       three years of

incarceration for endangering children, eighteen months on the corrupting another

with drugs count, three years for felonious assault, and one year of incarceration on

each intimidation count. The trial court ordered the sentences to run concurrently

and concurrent to Appellant’s sentence in case number 13 CR 1172. Hence, the trial

court imposed an aggregate sentence of three years of incarceration.
                                                                                       -2-

      {¶4}    On May 7, 2015, Appellant filed a motion for judicial release; as per the

plea agreement, the state stood silent.     On July 24, 2015, the trial court held a

hearing on the motion. On July 29, 2015, the trial court sustained Appellant’s motion

and imposed a five-year community control period. The trial court’s entry stated that

it would reimpose the original sentence if Appellant violated his community control.

      {¶5}    On August 3, 2015, the state filed a motion to extend or revoke

Appellant’s probation. Appellant stipulated to probable cause and was found guilty of

a probation violation. On September 10, 2015, the trial court reimposed Appellant’s

three-year sentence, with credit for 335 days served. This timely appeal followed.

                                    No Merit Brief

      {¶6}    Based on a review of this matter, appellate counsel seeks to withdraw

after finding no potentially meritorious arguments for appeal. This filing is known as a

no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.E.2d 493 (1967). In our district, it is referred to as a Toney brief. See

State v. Toney, 23 Ohio App.2d 203, 262 N.E. 2d 419 (7th Dist.1970).

      {¶7}    In Toney, this Court established the procedure to be used when

appellate counsel wishes to withdraw from a case deemed a frivolous appeal.

      3.     Where a court-appointed counsel, with long and extensive

      experience in criminal practice, concludes that the indigent's appeal is

      frivolous and that there is no assignment of error which could be

      arguably supported on appeal, he should so advise the appointing court
                                                                                   -3-

       by brief and request that he be permitted to withdraw as counsel of

       record.


       4. Court-appointed counsel's conclusions and motion to withdraw as

       counsel of record should be transmitted forthwith to the indigent, and

       the indigent should be granted time to raise any points that he chooses,

       pro se.


       5.     It is the duty of the Court of Appeals to fully examine the

       proceedings in the trial court, the brief of appointed counsel, the

       arguments pro se of the indigent, and then determine whether or not

       the appeal is wholly frivolous.


       ***


       7. Where the Court of Appeals determines that an indigent's appeal is

       wholly frivolous, the motion of court-appointed counsel to withdraw as

       counsel of record should be allowed, and the judgment of the trial court

       should be affirmed.

Id. at syllabus.

       {¶8}    On January 15, 2016, appellate counsel filed the no merit brief in this

matter. On February 1, 2016, we filed a judgment entry informing Appellant that his

counsel had filed a no merit brief and giving him thirty days to file his own brief.

Appellant failed to file a brief in this matter. Accordingly, we must independently
                                                                                     -4-

examine the record to determine whether there are any potentially meritorious issues

in this matter.

                                     Judicial Release

       {¶9}   “The court, in its discretion, may revoke the judicial release if the

offender violates the community control sanction described in division (R)(1) of this

section.” R.C. 2929.20(R)(2). On August 3, 2015, the state filed a motion to revoke

Appellant’s probation. Appellant stipulated to probable cause. On September 3,

2015, the trial court held a probation revocation hearing. As a probation revocation

hearing is not a criminal trial, the state need not prove a violation beyond a

reasonable doubt. State v. Harris, 7th Dist. No. 11 MA 51, 2012-Ohio-1304, ¶ 13,

citing State v. Delaine, 7th Dist. No. 08 MA 257, 2010-Ohio-609, ¶ 14; State v.

Hylton, 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (4th Dist.1991). Instead, the state

must present “substantial proof that a defendant violated the terms of his community

control sanction.” Harris at ¶ 13.

       {¶10} At the hearing, Appellant admitted to stealing the following items from

his mother: a car, an iPad, three television sets, and $40. He also admitted that he

bought and ingested heroin in an attempt to kill himself.         Although he denied

threatening or attempting to harm the victims, his drug use and theft crimes constitute

substantial evidence of a probation violation. Based on Appellant’s admissions, the

trial court did not abuse its discretion in revoking Appellant’s judicial release. Thus,

there are no appealable issues regarding the revocation of Appellant’s judicial

release.
                                                                                    -5-

                                      Sentencing

       {¶11} Pursuant to R.C.2929.20(K):

       If the court grants a motion for judicial release under this section, the

       court shall order the release of the eligible offender, shall place the

       eligible offender under an appropriate community control sanction,

       under appropriate conditions, and under the supervision of the

       department of probation serving the court and shall reserve the right to

       reimpose the sentence that it reduced if the offender violates the

       sanction. (Emphasis added.)

       {¶12} The trial court’s July 29, 2015 judgment entry stated that “[t]he

Defendant was further advised that should he violate any term or condition of his

Community Control Sanction, this court would send him back to the penitentiary for

the remainder of his sentence.” (Emphasis deleted.) (7/29/15 J.E., p. 1.) Thus,

pursuant to R.C. 2929.20(K), the trial court reserved the right to reimpose Appellant’s

original sentence if he violated his community control.       As such, the trial court

properly reimposed Appellant’s original sentence. Thus, there are no appealable

issues as to Appellant’s sentence.

                                      Conclusion

       {¶13} Appellate counsel seeks to withdraw as a review of the record did not

reveal any potentially meritorious arguments. For the reasons provided, this record

reveals no potentially meritorious arguments.       Accordingly, counsel’s motion to

withdraw is granted and the judgment of the trial court is affirmed.
                         -6-


Donofrio, J., concurs.

Robb, P.J., concurs.
