[Cite as State v. Eismon, 2011-Ohio-426.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. Julie A. Edwards, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 10 CA 31
ROBERT LEE EISMON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 05 CR 239


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        January 27, 2011



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

GREGG MARX                                    DAVID A. SAMS
PROSECUTING ATTORNEY                          Post Office Box 40
201 South Broad Street, 4th Floor             West Jefferson, Ohio 43162
Lancaster, Ohio 43130
Fairfield County, Case No. 10 CA 31                                                       2

Wise, P. J.

         {¶1}   This is Appellant’s third pursuit of an appeal in this Court. The initial

appeal was filed from the trial court’s entry dated March 20, 2006 wherein Appellant

was sentenced to a total term of fifteen years in prison for sexually molesting,

kidnapping, and abducting a two-year-old relative. We affirmed Appellant’s conviction in

Fairfield Case Number 06-CA-15. In 2008, Appellant attempted a second delayed

appeal which was assigned Fairfield Case Number 08-CA-62. This Court denied the

motion for delayed appeal on the basis that Appellant is not permitted to pursue a

delayed appeal where he has previously availed himself of a direct appeal of the same

entry.

         {¶2}   Following our affirmance of Appellant’s conviction, Appellant filed a motion

for a de novo sentencing hearing in the trial court. Appellant contended he was entitled

to a de novo sentencing hearing because his original sentencing entry dated March 20,

2006 stated Appellant was subject to post release control for “up to a maximum of 5

years.” The trial court, in its entry denying the request for de novo sentencing, explains

that the record reveals the trial court correctly advised Appellant that he would be

subject to post release control for a period of five years. However, the judgment entry

did not reflect what actually occurred at the sentencing hearing, therefore, the trial court

issued the nunc pro tunc entry which is the subject of the instant appeal. In the Nunc

Pro Tunc entry dated May 24, 2010, the trial court changed the language cited above

from the March 20, 2006 entry to state, “The Court further notified the Defendant that

post-release control is mandatory in this case for a period of 5 years . . .”
Fairfield County, Case No. 10 CA 31                                                       3


        {¶3}   The instant notice of appeal is filed from the trial court’s entry of May 24,

2010.

        {¶4}   Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth three proposed

Assignments of Error. Appellant filed a pro se pleading in response to the Anders brief.

In his pro se pleading, Appellant confuses App.R. 26 with the idea of raising additional

assignments of error pursuant to the dictates of Anders. The pleading does not comply

with the appellate rules relative to briefs and does not contain identifiable assignments

of error. Nonetheless, Appellee has filed a brief in response to all assignments of error

and all arguments made by Appellant in a pro se capacity.            Essentially, Appellant

complains in his pro se pleading that appellate counsel should not have filed an Anders

brief and that his sentence is improper.      Counsel for Appellant raises the following

potential assignments of error:

        {¶5}   “I. THIS COURT ERRED IN ITS ORIGINAL DECISION.”

        {¶6}   “II.   APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL.”

        {¶7}   “III. THIS COURT ERRED IN REMANDING FOR THE IMPOSITION OF

A DEFINITE TERM OF FIVE YEARS OF POST-RELEASE-CONTROL.”

        {¶8}   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. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that
Fairfield County, Case No. 10 CA 31                                                      4

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

decision on the merits if state law so requires. Id.

         {¶9}   Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s

motion to withdraw. For the reasons which follow, we affirm the judgment of the trial

court.

                                            I., II.

         {¶10} In his first assignment of error, Appellant suggests this Court erred in

affirming his conviction in Fairfield Case Number 06-CA-15. Appellant sought leave

from the Ohio Supreme Court to appeal our decision in Case Number 06-CA-15,

however, the Court declined to hear the appeal. Appellant cannot now challenge this

Court’s decision with this Court. We have already affirmed Appellant’s conviction.

         {¶11} In his second assignment of error, Appellant suggests he was denied

effective assistance of appellate counsel which is an issue that could have been raised

in the prior appeal.

         {¶12} The Supreme Court has held, “Res judicata bars the assertion of claims

against a valid, final judgment of conviction that have been raised or could have been
Fairfield County, Case No. 10 CA 31                                                   5

raised on appeal. State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d

104, paragraph nine of the syllabus.” State v. Ketterer (2010), 126 Ohio St.3d 448, 459,

935 N.E.2d 9, 21.

       {¶13} For this reason, Appellants first and second assignments of error are

overruled.

                                            III.

       {¶14} In his third assignment of error, Appellant argues this Court erred in

remanding this case to the trial court for the purpose of addressing the issue of post

release control. This Court has never remanded this case to the trial court, therefore,

Appellant’s third assignment of error is overruled.

       {¶15} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that no arguably meritorious claims exist upon which to base

an appeal.    Hence, we find the appeal to be wholly frivolous under Anders, grant

counsel's request to withdraw, and affirm the judgment of the Fairfield County Court of

Common Pleas.


By: Wise, P. J.

Edwards, J., and

Delaney, J., concur.
                                              ___________________________________


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                                              ___________________________________

                                                               JUDGES
JWW/d 0113
Fairfield County, Case No. 10 CA 31                                          6


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                          :
                                       :
       Plaintiff-Appellee              :
                                       :
-vs-                                   :        JUDGMENT ENTRY
                                       :
ROBERT LEE EISMON                      :
                                       :
       Defendant-Appellant             :        Case No. 10 CA 31




       For the reasons stated in our accompanying Memorandum-Opinion, counsel’s

motion to withdraw is granted, and the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.

       Costs assessed to Appellant.




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                                       ___________________________________

                                                         JUDGES
