[Cite as State v. Weese, 2014-Ohio-3267.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :      Appellate Case No. 2013-CA-61
          Plaintiff-Appellee                     :
                                                 :      Trial Court Case No. 2012-CR-797
 v.                                              :
                                                 :
 JOSEPH WEESE                                    :      (Criminal Appeal from
                                                 :      (Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........
                                            OPINION
                               Rendered on the 25th day of July, 2014.
                                            ...........

RYAN A. SAUNDERS, Atty. Reg. #0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. #0074057, 120 West Second Street, Suite 400, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                            .............

HALL, J.

        {¶ 1}     Joseph Weese appeals from his convictions for domestic violence and abduction,
                                                                                                        2


both felonies of the third degree, after he entered guilty pleas as part of a plea bargain with an

agreed-upon sentence of twenty-four months in prison on the first charge to be served

consecutively to eighteen months on the second. Appellant’s assigned counsel has filed a brief

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

he “has throughly examined the record and the law and has found no potentially meritorious

issues for appeal.” (Brief of Appellant at 3). Counsel also requests that he be permitted to

withdraw as counsel.

       {¶ 2}    Counsel’s brief indicates that he notified Weese in writing concerning counsel’s

intention to file an Anders brief. We independently notified Weese of the Anders filing, advising

him of his right to file his own brief and the time limit for doing so. Weese has not filed anything,

and the time for filing now has expired.

                                    The Course of Proceedings

       {¶ 3}    Weese was indicted on November 19, 2012 for domestic violence, with two prior

convictions, and for felonious assault and kidnapping. (Doc. 1) Trial was scheduled several times

but continued at the request of the defendant. He also waived his right to a speedy trial. (Doc. 21)

The last scheduled trial date was June 24, 2013. On that morning, Weese entered into a plea

bargain with the State of Ohio. In exchange for guilty pleas to the charge of third-degree-felony

domestic violence and a reduced third-degree-felony charge of abduction, the State agreed to

dismiss the felonious-assault count. As part of the bargain, “[t]he parties would agree to a

sentence of twenty-four months on count one [domestic violence, third degree felony] and

eighteen months on count three [abduction] to run consecutive for a total of three-and-a-half

years in the Ohio State Penitentiary.” (Transcript at 3) The record reveals the trial court
                                                                                                    3


completed a Crim.R. 11 colloquy with the defendant. He voluntarily entered his pleas and agreed

to the terms of the agreement, orally and in writing. (Transcript 4-8) (Doc. 24) In imposing the

agreed sentence, the trial court properly advised him of mandatory post-release control of three

years, imposed court costs, and advised him that he could be ordered to perform community

service if he failed to pay court costs.

                                 No Potential Assignments of Error

        {¶ 4}    In his brief, assigned counsel does not identify any potential assignments of error.

He notes that there were no pretrial motions, there was no trial, and the trial court conducted a

proper Crim.R.11 plea. Counsel does mention two issues we will address: (1) that the trial court

did not make findings to impose consecutive sentences and (2) that Weese’s family apparently

believes he was pressured into entering a plea but the appeal is limited to the appellate record.

We observe that with an agreed consecutive sentence the trial court is not required to make any

findings, and that the record before us contains no support whatsoever for an argument that the

plea was coerced.

        {¶ 5} Ordinarily, R.C. 2929.14(C)(4) requires certain findings to be made before

consecutive sentences can be imposed. However, the Ohio Supreme Court explicitly has held that

“[a] sentence imposed upon a defendant is not subject to review under [R.C. 2953.08(D)] if the

sentence is authorized by law, has been recommended jointly by the defendant and the

prosecution in the case, and is imposed by a sentencing judge.” State v. Porterfield, 106 Ohio

St.3d 5, 2005–Ohio–3095, 829 N.E.2d 690, ¶ 25. In addition, the court stated that “[t]he General

Assembly intended a jointly agreed-upon sentence to be protected from review precisely because

the parties agreed that the sentence is appropriate. Once a defendant stipulates that a particular
                                                                                                  4


sentence is justified, the sentencing judge no longer needs to independently justify the sentence.”

Id. Therefore, not only were findings unnecessary, but the agreed sentence is not subject to

appellate review. Any argument to the contrary lacks arguable merit and would be frivolous.

       {¶ 6} With regard to an implication that Weese’s family believes his plea may have been

coerced, we proceed only on the record presented to us. That includes all of the docket entries

and the June 24, 2013 transcript of the “Plea and Disposition” before the trial court. There are no

facts in this record to support any argument that Weese was coerced into making his pleas. Any

argument about coercion lacks arguable merit and would be frivolous.

                                         Anders Review

       {¶ 7} We also have performed our duty under Anders to conduct an independent review

of the record. We thoroughly have reviewed the various filings, the written transcript of the plea

colloquy, and the sentencing disposition. We have found no non-frivolous issues for review.

Accordingly, appellate counsel’s request to withdraw is sustained, and the judgment of the Clark

County Common Pleas Court is affirmed.

                                         .............

FROELICH, P.J., and DONOVAN, J., concur.

Copies mailed to:

Ryan A. Saunders
Lucas W. Wilder
Joseph Weese
Hon. Douglas M. Rastatter
