[Cite as State v. Burns, 2019-Ohio-2182.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 2018 CA 0008
JOSEPH BURNS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2017 CR 0125


JUDGMENT:                                     Dismissed



DATE OF JUDGMENT ENTRY:                        June 3, 2019



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JASON GIVEN                                   JEFFREY A. MULLEN
PROSECUTING ATTORNEY                          PUBLIC DEFENDER
318 Chestnut Street                           239 North Fourth Street
Coshocton, Ohio 43812                         Coshocton, Ohio 43812
Coshocton County, Case No. 2018 CA 0008                                                       2

Wise, John, P. J.

         {¶1}   Defendant-appellant Joseph D. Burns appeals his conviction on one count

of Domestic Violence, following a plea of guilty in the Coshocton County Court of Common

Pleas.

                                    Facts and Procedural History

         {¶2}   On November 17, 2017, Appellant Burns was indicted on one count of

Domestic Violence, in violation of R.C. §2919.25(A), a felony of the fourth degree.

         {¶3}   Appellant initially pled not guilty and discovery proceeded in this matter.

         {¶4}   On September 14, 2018, Appellant came before the court for a change of

plea wherein Appellant entered a plea of guilty as charged in the indictment. In the

Judgment Entry Plea of Guilty the State of Ohio agreed that in exchange for Appellant’s

plea of guilty it would recommend community control sanctions and that Appellant be

sentenced to a Community Based Correctional Facility. The State of Ohio further agreed

to take no position on judicial release and to not oppose a pre-sentence investigation.

         {¶5}   The trial court accepted Appellant’s guilty plea, ordered a pre-sentence

investigation and set the matter for a sentencing hearing on November 2, 2018.

         {¶6}   At the sentencing hearing on November 2, 2018, and memorialized in a

Judgment Entry filed November 7, 2018, the trial court sentenced Appellant to seventeen

(17) months imprisonment.

         {¶7}   In the Sentencing Entry the trial court explained that it could not adhere to

the joint sentencing recommendation due to the actions of Appellant while on bond after

the change of plea hearing. The court stated:
Coshocton County, Case No. 2018 CA 0008                                                     3


              While awaiting sentencing, the Defendant failed to report to the court

       as ordered on October 9, 2018; failed to keep his GPS monitor charged; the

       GPS monitor was then removed by the Defendant without permission from

       the court; and the Defendant used methamphetamine while awaiting his

       presentence investigation. (Judgment Entry on Sentencing at 2).

       {¶8}   In its Sentencing Entry the trial court also noted that Appellant orally moved

the court to withdraw his guilty plea, but the court found the motion to be not well-taken

and denied same from the bench. Id.

       {¶9}   Counsel for Appellant filed a Motion to Withdraw and a Brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967) asserting one

potential assignment of error:

       {¶10} “I. THE TRIALS COURT’S SENTENCE WAS CONTRARY TO LAW”.

                                         Law and Analysis

       {¶11} In Anders, the United States Supreme Court held 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. 386 U.S. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to

raise any matters that the client chooses. Id. Once the defendant's counsel satisfies

these requirements, the appellate court must fully examine the 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
Coshocton County, Case No. 2018 CA 0008                                                        4


the appeal without violating constitutional requirements, or may proceed to a decision on

the merits if state law so requires. Id.

       {¶12} In his brief, filed January 2, 2019, counsel gave the following notice to

Appellant:

              Notice is hereby given to the Defendant/Appellant, Joseph Burns, of

       his right to raise any issues, objections or points he wishes to make on his

       own behalf to the Fifth District Court of Appeals. Any issues, objections or

       points must be submitted in writing and filed no later than thirty (30) days

       after receipt of this Motion/Brief.

       {¶13} The Certificate of Service certifies that a copy was served on the prosecutor.

       {¶14} By Judgment Entry filed March 27, 2019, this Court noted that counsel had

filed an Anders brief and had indicated to the Court that he had served Appellant with the

brief. Although the brief contains a notice to the Appellant of his right to file a pro se brief,

the certificate of service did not indicate that the brief was served upon Appellant.

Accordingly, this Court ordered the Clerk to send a copy of the brief filed by Appellant’s

counsel to Appellant and further notified Appellant via Certified U.S. Mail that he “may file

a pro se brief in support of the appeal on or before May 15, 2019.”

       {¶15} Appellant has not filed anything with this Court.

       {¶16} We find Appellant’s counsel in this matter has adequately followed the

procedures required by Anders.

                                           Law and Analysis

       {¶17} Pursuant to Loc.App.R. 16(C) and Anders, this Court has conducted an

independent examination of the record to determine if there are any issues of arguable
Coshocton County, Case No. 2018 CA 0008                                                  5

merit. Anders instructs that if the appellate court determines that the appeal would be

“wholly frivolous” (i.e., there are no legal points of arguable merit), the court may grant

counsel's request to withdraw and dismiss the appeal. If, however, the court finds any

legal points arguable on their merits, the court must afford appellant the assistance of

counsel before deciding the merits of the case. Anders, 386 U.S. at 744, 87 S.Ct. 1396,

18 L.Ed.2d 493.

       {¶18} Upon a complete review of the record, this Court agrees that no prejudicial

error occurred in the lower court, and any appeal on Appellant’s behalf would be frivolous.

       {¶19} Accordingly, the motion of appointed counsel to withdraw is granted, and

the appeal of the judgment of the Court of Common Pleas of Coshocton County, Ohio, is

dismissed.


By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.




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