[Cite as State v. Othberg, 2020-Ohio-664.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 108351
                 v.                                :

ROBERT OTHBERG,                                    :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: DISMISSED
                 RELEASED AND JOURNALIZED: February 27, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-19-636431-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel Cleary, Assistant Prosecuting
                 Attorney, for appellee.

                 Erin R. Flanagan, for appellant.


ANITA LASTER MAYS, J.:

                   On March 20, 2019, defendant-appellant Robert Othberg (“Othberg”)

entered a plea of guilty to rape, R.C. 2907.02(A)(1)(c), in exchange for the state’s

dismissal of the accompanying charge of rape, R.C. 2907.02(A)(2), and the deletion
of all specifications. Othberg received an 11-year sentence, 5 years of postrelease

control (R.C. 2967.28), and a Tier III sex offender designation.

               Counsel appointed to represent Othberg in the instant appeal has

filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), and requested leave to withdraw as counsel. Anders held that where,

after a conscientious examination of the case, appellate counsel is unable to find any

meritorious issues for review, then counsel should inform the court and request

permission to withdraw from the case. Id. at 744. In addition, the request must be

      accompanied by a brief referring to anything in the record that might
      arguably support the appeal. A copy of counsel’s brief should be
      furnished the indigent and time allowed him to raise any points that he
      chooses; the court — not counsel — then proceeds, after a full
      examination of all the proceedings, to decide whether the case is wholly
      frivolous. If it so finds it may grant counsel’s request to withdraw and
      dismiss the appeal.

Id. If this court determines that one or more legal points have merit, the defendant

will be afforded counsel to argue the appeal. Id.

               Counsel offers that there are no meritorious arguments in this case.

Appellant was afforded an opportunity to file a pro se brief in this appeal on or before

September 16, 2019, but failed to do so. After a thorough independent review of the

record, we grant counsel’s motion to withdraw and dismiss this appeal.

I.   Discussion of Potential Assignment of Error

               Counsel identifies a single potential assignment of error but explains

that the error is not prejudicial and meritorious of review. The trial court did not

order a presentence-investigation report (“PSI”) after Othberg entered his plea and
prior to rendering a sentence, though the record indicates Othberg suffers from

alcohol abuse. Counsel offers that the court acted within its discretion in sentencing

Othberg but offers that the better course may have been to obtain a mental health

mitigation report and substance abuse assessment to assist Othberg and the family

member victim with recovery and healing.

                PSI reports are only required where a court is imposing probation or

community control sanctions. State v. Alexander, 8th Dist. Cuyahoga No. 105969,

2018-Ohio-1198, ¶ 24, citing Crim.R. 32.2. See also State v. Cyrus, 63 Ohio St.3d

164, 165-166, 586 N.E.2d 94 (1992), citing Crim.R. 32.2 and R.C. 2947.06. Rape is

a first-degree felony, and Othberg has prior felony convictions including aggravated

murder, felonious assault, and multiple gross sexual imposition counts.

                The trial court heard a statement from the victim and mitigation

testimony from counsel and defendant. The trial court stated,

      I’ve reviewed the plea negotiations because that was significant. I
      listened to the victim, your niece. I listened to what your attorney had
      to say also on your behalf.

      The decision is not whether you’re going to prison, because you’re
      going, the decision is how long will you be there. When I look at the
      history and when I look at the progression of the offenses, of the
      manner of the offenses, sex-related offenses, I have to make sure that
      we protect the public from future crimes by you, the defendant.

      The Court finds that prison is consistent with the purposes of 2929.11,
      and the Court does therefore sentence you, Mr. Othberg, to the
      maximum 11 years in prison. You will be subject to five years, as I
      previously indicated, mandatory PRC.

(Tr. 23-25.) The trial court also explained PRC and the sex offender designation and

requirements.
              Othberg was not eligible for probation or community control

sanctions. The failure to order a PSI did not constitute an error in this case.

Alexander, 8th Dist. Cuyahoga No. 105969, 2018-Ohio-1198, ¶ 24; Cyrus, 63 Ohio

St.3d 164, 165-166, 586 N.E.2d 94; Crim.R. 32.2; and R.C. 2947.06.

              As required by Anders, this court has examined and considered the

argument identified in counsel’s Anders brief. We conclude that there are no

arguable legal points on the merits of this matter. This appeal is wholly frivolous

pursuant to Anders. Counsel’s request to withdraw is granted, and we dismiss this

appeal.

              Judgment is dismissed.

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

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

of the Rules of Appellate Procedure.



ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
