[Cite as State v. Davis, 2017-Ohio-7483.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105404




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    TONY L. DAVIS, JR.
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             DISMISSED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-592237-A

        BEFORE: Stewart, P.J., Boyle, J., and Jones, J.

        RELEASED AND JOURNALIZED: September 7, 2017
ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, OH 44114

Also Listed

Tony L. Davis, Jr., pro se
Inmate No. 672-164
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, OH 44030


ATTORNEY FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1}     Defendant-appellant Tony L. Davis, Jr. pleaded guilty to aggravated

vehicular homicide, in violation of R.C. 2903.06(A)(1)(a), with an enhancement for

driving with a suspended license, making the offense a first-degree felony. Davis also

pleaded guilty to driving while under the influence, in violation of R.C. 4511.19(A)(1)(f),

a first-degree misdemeanor, with a specification for a previous driving while under the

influence conviction. 1     The court sentenced Davis to nine years in prison for the

aggravated vehicular homicide and 20 days in prison for driving while under the

influence, to be served concurrently. It also sentenced him to a mandatory five-year term

of postrelease control and various penalties relating to his drivers license.

       {¶2} The court appointed Davis new counsel for purposes of appeal. Appellate

counsel now seeks permission to withdraw from the case pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Davis can

raise no nonfrivolous issues on appeal. Davis has had the opportunity to file his own

merit brief, but has not done so.




         Counsel’s brief erroneously states that Davis pleaded guilty to a different count of the
       1


indictment, which alleged he was driving while under the influence in violation of R.C.
4511.19(A)(1)(a), a first-degree misdemeanor with the same specification. This error does not affect
our analysis.
       {¶3} Consistent with Anders and Loc.App.R. 16(C) of the Eighth District Court of

Appeals, counsel filed a no-merit brief in addition to his motion to withdraw as counsel.2

Counsel’s no-merit brief raises two possible assignments of error, challenging the nature

of Davis’s plea and the sentence the court imposed, and explains why both would be

frivolous. We evaluate counsel’s arguments in light of the record before us. State v.

Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 20.

       {¶4} Counsel suggests that Davis could file an assignment of error challenging the

validity of his guilty plea on three separate grounds before concluding that such a

challenge would be meritless. Counsel posits that Davis could argue that the trial court

failed to advise him of his constitutional and nonconstitutional rights before accepting his

guilty plea. Counsel indicates that the record rebuts this assertion, however, and shows

that the court performed all of its obligations in this regard by advising Davis of his

various rights: to be tried by jury, to confront the witnesses against him, to subpoena his

own witnesses, that the state must prove his guilt beyond a reasonable doubt, and to be

advised of the nature of the charges, penalties he faced, and that his guilty plea would

constitute a complete admission of guilt. Our review of the record confirms that counsel

is correct.

       {¶5} Next, counsel addresses and disposes of a challenge to Davis’s plea on

grounds that he did not comprehend the proceedings.                Counsel notes that Davis


         We note that recently the Fourth Appellate District has adopted a new procedure where it
       2


will no longer accept motions to withdraw pursuant to Anders. See State v. Wilson, 4th Dist.
Lawrence No. 16CA12, 2017-Ohio-5772.
affirmatively answered “yes” to every question the court posed regarding his rights and

his possible sentence. Counsel states that there is “absolutely nothing” in the record

indicating that Davis was less than fully aware of the nature and consequences of

pleading guilty. We agree.

       {¶6} Counsel finally proposes that Davis might argue that his plea is defective on

grounds of ineffective assistance of counsel, but shows how such argument would be

without merit in light of the record. Davis pronounced that he was satisfied with his

representation and that no threat, promise, or other inducement was made that caused him

to plead guilty. We agree, and pursuant to Anders, find that no nonfrivolous argument

lies in challenging Davis’s guilty plea.

       {¶7} Counsel also suggests that Davis could challenge his sentence as being

contrary to law or clearly and convincingly unsupported by the record; however, counsel

asserts that such a challenge would also be meritless. A defendant does not have a

constitutional right to appellate review of his or her criminal sentence; “the only right to

appeal is the one provided by statute.” State v. Akins, 8th Dist. Cuyahoga No. 99478,

2013-Ohio-5023, ¶ 12. Because Davis’s nine-year sentence for a felony of the first

degree was not a maximum sentence, pursuant to R.C. 2953.08(A), the only potentially

viable avenue of review here would be arguing that the sentence is contrary to law.

There is no question that Davis’s sentence is within the statutory range and that the court

stated it gave appropriate consideration to the required sentencing factors. See State v.

Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 12 (“As long as a trial court
considered all sentencing factors, the sentence is not contrary to law and the appellate

inquiry ends.”). Moreover, counsel suggests that in light of the record, such a challenge

would be frivolous even under the broader review provided in State v. Jones,

2016-Ohio-7702, 76 N.E.3d 596 (8th Dist.).3 We agree with counsel that this potential

assignment of error would be frivolous under Anders. We therefore dismiss this appeal

and grant counsel’s motion to withdraw.

       {¶8} Appeal dismissed.

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

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

the Rules of Appellate Procedure.

______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
LARRY A. JONES, SR., J., CONCUR




          This case is presently before this court, en banc, to consider the issue of whether State v.
       3


Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, permits an appellate court to modify
or vacate and remand a sentence if it finds by clear and convincing evidence that the record does not
support the trial court’s findings under R.C. 2929.11 and 2929.12. The en banc resolution of the
issue in Jones would not impact our analysis here.
