[Cite as State v. Wonders, 2017-Ohio-7268.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                     :   Hon. John W. Wise, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. 17-CA-12
                                               :
 JASON M. WONDERS, JR.                         :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 15 CR 003



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            August 15, 2017




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 NATE HURST                                        ROBERT C. BANNERMAN
 Assistant Prosecuting Attorney                    P.O. Box 77466
 Licking Co. Prosecutor’s Office                   Columbus, OH 43207-0098
 20 S. Second St., 4th Floor
 Newark, OH 43055
Licking County, Case No. 17-CA-12                                                        2



Delaney, P.J.

       {¶1} Appellant Jason M. Wonders, Jr. appeals from his conviction and sentence

upon one count of burglary following a plea of guilty. Appellate counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967),

asserting he found no potential assignments of error having arguable merit. We have

performed our duty, under Anders, to review the record independently, and we also find

no potential assignments of error having arguable merit. See, State v. Parrish, 2nd Dist.

Montgomery No. 25599, 2013-Ohio-5622, ¶ 1.

       {¶2} Appellee is the state of Ohio and did not appear.

                        FACTS AND PROCEDURAL HISTORY

       {¶3} The following facts are adduced from the record of the change-of-plea

hearing on April 3, 2017.

       {¶4} On December 18, 2014, someone forced entry into a residence in Newark,

Ohio and stole a .357 handgun, an X-Box 360, a laptop computer, video games, movies,

and a black duffel bag. The homeowner provided Newark police with the name of a

suspect, appellant, and an investigation was launched. Police discovered appellant sold

some of the stolen video games at “Bryan’s Video Trader” in Heath, Ohio. During an

interview with a detective, appellant admitted he entered the home with a drawstring bag

to steal items, but the bag he brought with him was too small so he stole the black duffel

bag to transport the stolen items. Appellant returned the laptop and the X-Box. Appellee

stated appellant was also helpful in identifying the person now in possession of the stolen

handgun.
Licking County, Case No. 17-CA-12                                                         3


       {¶5} Appellant waived prosecution by indictment and was charged by bill of

information with one count of burglary pursuant to R.C. 2911.12(A)(3), a felony of the third

degree.

       {¶6} On March 9, 2015, appellant entered a counseled plea of guilty as charged

and the trial court imposed a 5-year term of community control.

       {¶7} On March 10, 2016, appellee filed a motion to revoke appellant’s community

control due to numerous violations of conditions, including, e.g., drug use and failure to

report to probation officers and treatment programs.

       {¶8} On March 14, 2016, appellee moved to dismiss revocation proceedings

against appellant because he was placed in a halfway house. The trial court granted the

motion to dismiss; successful completion of the halfway house program was added as a

condition of appellant’s community control.

       {¶9} On May 13, 2016, appellee again moved to revoke appellant’s community

control on the same grounds, in addition to appellant’s unsuccessful termination from the

halfway house. A magistrate found probable cause to continue revocation proceedings

and counsel was appointed.

       {¶10} On June 1, 2016, appellant appeared before the trial court, waived his right

to a hearing and admitted violating the conditions of community control. The trial court

thereupon imposed a prison term of one year and a discretionary 3-year period of post-

release control.

       {¶11} On December 30, 2016, appellee filed a motion for post-release control

resentencing, noting appellant’s burglary conviction required a mandatory 3-year period

of post release control pursuant to R.C. 2967.28(B)(3). The trial court again appointed
Licking County, Case No. 17-CA-12                                                              4


counsel for appellant and scheduled a hearing via video conference pursuant to R.C.

2929.191(C).

       {¶12} On January 20, 2017, appellant filed a motion to dismiss and memorandum

in opposition to resentencing. Also on that date, the trial court overruled the motion to

dismiss and re-imposed the one-year prison term with a mandatory 3-year period of post

release control.

       {¶13} Appellant now appeals from his conviction and sentence. Appellate counsel

has filed a brief pursuant to Anders, supra, stating that he can find no potential

assignments of error having arguable merit. By entry filed on May 26, 2017, appellant

was advised that an Anders brief had been filed on his behalf, and he was advised to file

his own pro se brief on or before June 21, 2017. Appellant has not filed a pro se brief.

       {¶14} Appellate counsel raised the following sole assignment of error:

                                 ASSIGNMENT OF ERROR

       {¶15} “COUNSEL MOVES THIS COURT TO CONDUCT AN INDEPENDENT

REVIEW OF THE RECORD IN ACCORDANCE WITH ANDERS V. CALIFORNIA, 386

U.S. 738 (1967) TO DETERMINE WHETHER PREJUDICIAL ERROR OCCURRED.”

                                          ANALYSIS

       {¶16} In Anders, the United States Supreme Court held that 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 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
Licking County, Case No. 17-CA-12                                                       5

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.

       {¶17} Counsel in this matter has followed the procedure in Anders. In the brief,

counsel acknowledges the trial court’s actions in resentencing appellant to impose the

mandatory term of post-release control complies with the decisions of the Ohio Supreme

Court in, e.g., State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 and

State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382.

       {¶18} An appeal is wholly frivolous if the record is devoid of any legal points

arguable on the merits. State v. Middaugh, 5th Dist. Coshocton No. 02 CA 17, 2003-Ohio-

91, ¶ 13. If the appellate court determines the appeal is frivolous, it may then grant

counsel's request to withdraw and then dismiss the appeal without violating any

constitutional requirements, or the court can proceed to a decision on the merits if state

law requires it. Anders at 744.

       {¶19} In this case, the requirements in Anders have been satisfied. Upon our

independent review of 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 Licking County Court of Common Pleas. See, State v. Hill, 5th Dist.
Licking County, Case No. 17-CA-12                                                 6

Licking No. 15-CA-13, 2016-Ohio-1214, ¶ 20, appeal not allowed, 147 Ohio St.3d 1412,

2016-Ohio-7455, 62 N.E.3d 185.

                                    CONCLUSION

       {¶20} Counsel’s motion to withdraw is granted. The judgment of the Licking

County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Wise, John, J. and

Wise, Earle, J., concur.
