[Cite as State v. Whittington, 2017-Ohio-613.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                        Court of Appeals No. L-16-1073

        Appellee                                     Trial Court No. CR0201502843

v.

Gordon Anthony Whittington                           DECISION AND JUDGMENT

        Appellant                                    Decided: February 17, 2017

                                                 *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Frank H. Spryszak, Assistant Prosecuting Attorney, for appellee.

        Christopher S. Clark, for appellant.

                                                 *****

        SINGER, J.

        {¶ 1} Appellant, Gordon Whittington, appeals the January 8, 2016 judgment of the

Lucas County Court of Common Pleas imposing a 54-month prison term for robbery in

violation of R.C. 2911.02(A)(3) and (B), a felony of the third degree. For the reasons

that follow, we affirm.
                                    Background Facts

       {¶ 2} On November 2, 2015, appellant was indicted on one count of aggravated

robbery with a firearm specification, and one count of robbery.

       {¶ 3} On December 3, 2015, an amended bill of information was filed charging

appellant with robbery, in violation of R.C. 2911.02(A)(3) and (B), a felony of the third

degree.

       {¶ 4} On December 17, 2015, appellant pled guilty, pursuant to N.C. v. Alford, 400

U.S. 25, 91 S.Ct. 160 (1970), to the robbery. The trial court accepted the plea and set

hearing to impose sentence, which was scheduled for January 7, 2016.

       {¶ 5} At the January 7, 2016 sentencing hearing, the trial court discussed

appellant’s extensive criminal record, including 8 felonies and 14 misdemeanors.

Appellant was 59 years old and associated with three different social security numbers

and identities. The trial court further highlighted the factual basis for accepting

appellant’s plea.

       {¶ 6} The court noted that on October 24, 2015, appellant robbed a gas station and

fled the scene. There were surveillance videos and photos, which captured appellant by

way of high-definition photography. The identity of appellant was very apparent to the

court from the photos.

       {¶ 7} Further, appellant was stated to have entered the gas station and threatened

employees with what appeared to be a weapon. Appellant allegedly said, “I’ll shoot

you,” while robbing the store of $220. After fleeing, the court stated appellant was




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allegedly found shirtless, as described by witnesses, and in possession of $213. Another

$7 was found in close enough proximity that the court concluded it was the remaining

stolen funds.

       {¶ 8} Appellant was sentenced to 54-months incarceration and, upon release, three

years mandatory postrelease control. The judgment was journalized January 8, 2016. It

is from this judgment appellant now appeals.

                                      Anders Brief

       {¶ 9} On September 28, 2016, appellant’s counsel filed a request to withdraw

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

Counsel asserted, after thoroughly reviewing the transcript of proceedings and the

applicable case law, no meritorious assignments of error could be presented. Counsel

did, however, submit two potential assignments of error:

                I.) THE TRIAL COURT ERRED IN ACCEPTING A PLEA OF

       GUILTY FROM APPELLANT AS THE PLEA WAS MADE WITH A

       LACK OF UNDERSTANDING BY APPELLANT AS TO THE EFFECT

       THAT THE PLEA WOULD HAVE IN THE COURT’S

       DETERMINATION OF A SENTENCE.

                II.) THE TRIAL COURT ERRED IN SENTENCING APPELLANT

       TO A PRISON TERM OF FIFTY-FOUR (54) MONTHS.




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       {¶ 10} The state also filed a brief, concurring with the conclusion that there was

no arguable basis for a valid assignment of error and urging this court to permit counsel

to withdraw.

       {¶ 11} The procedure to be followed by appointed counsel who desires to

withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as

State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the

U.S. Supreme Court found if counsel, after a conscientious examination of the case,

determines it to be wholly frivolous, counsel should so advise the court and request

permission to withdraw. Anders at 744. This request must be accompanied by a brief

identifying anything in the record which could arguably support the appeal. Id. In

addition, counsel must furnish the client with a copy of the brief and request to withdraw

and allow the client sufficient time to raise any matters the client so chooses. Id. Once

the requirements are fulfilled, the appellate court must conduct a full examination of the

proceedings and decide if the appeal is indeed frivolous. Id. If the appellate court

determines the argument is frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal or it may proceed to a decision on the merits. Id.

       {¶ 12} Here, appellant’s counsel has satisfied the requirements set forth in Anders.

Appellant has not filed a pro se brief or otherwise responded to counsel’s request to

withdraw. Consequently, we shall proceed with an examination of the potential

assignments of error and the record, to determine if this appeal lacks merit and is

frivolous.




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                                    Appellant’s Charge

       {¶ 13} R.C. 2911.02(A)(3) states that “[n]o person, in attempting or committing a

theft offense or in fleeing immediately after the attempt or offense, shall * * * [u]se or

threaten the immediate use of force against another.”

                           Potential Assignment of Error No. I

       {¶ 14} Appellant’s counsel first submits review of the plea entered into by

appellant. The court must determine if the plea was entered with understanding of its

consequences.

       {¶ 15} A plea in a criminal case must be made knowingly, intelligently, and

voluntarily. See State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,

¶ 7.

       {¶ 16} Crim.R. 11(C) “requires an oral dialogue between the trial court and the

defendant which enables the court to determine fully the defendant’s understanding of the

consequences of his plea of guilty[.]” State v. Caudill, 48 Ohio St.2d 342, 358 N.E.2d

601 (1976), paragraph two of syllabus.

       {¶ 17} Here, the record reveals the court complied with Crim.R. 11(C) by

engaging in colloquy to insure appellant was fully aware of and understood not only the

consequences of his plea but also his constitutional rights.

       {¶ 18} Specifically, at the plea and sentencing hearings, appellant was questioned

regarding his understanding of the nature of the charge, informed with regard to the




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maximum penalty of 60 months, and was informed on how he would not be amenable to

community control. See Crim.R. 11(C)(2)(a).

       {¶ 19} Further, the court informed appellant and confirmed his understanding of

the effects of the plea with regard to waiver of his right to jury trial, to confront

witnesses, to have compulsory process, to no self-incrimination, and to require proof of

the crime beyond a reasonable doubt. See Crim.R. 11(C)(2)(b) and (c). The trial court

questioned appellant numerous times to ensure he maintained his plea. This confirmed

appellant was competent and free of coercion. The record thus supports an extensive

colloquy occurred and that the plea was entered in knowingly, voluntarily, and

intelligently.

       {¶ 20} Accordingly, we find no merit in the first potential assignment of error.

                           Potential Assignment of Error No. II

       {¶ 21} Appellant’s counsel submits review of the imposition of a 54-month prison

term for robbery, a felony of the third degree. The court must determine if the sentence is

within the permissible range and amply supported by factual basis on record.

       {¶ 22} “An appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. See also R.C. 2953.08(G)(2).




6.
       {¶ 23} For a felony of the third degree that is a violation R.C. 2911.02, when the

offender has previously pled guilty two or more times to violations of R.C. 2911.02, the

prison term ranges from 12 to 60 months incarceration. See R.C. 2929.14(A)(3)(a).

       {¶ 24} Here, appellant’s term is not contrary to law because facts on record

support a basis for the sentence and, because, appellant pled guilty to the robbery after

pleading guilty to two past robberies. The permissible range of incarceration for the

robbery is 12 to 60 months. Therefore, the trial court’s 54-month sentence was within the

permissible range under R.C. 2929.14(A)(3)(a), and is not otherwise contrary to law. The

second proposed assignment of error is without merit.

       {¶ 25} Last is our examination of the record to determine whether this appeal is

frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of the record

does not reveal any errors which would justify reversal. We find this appeal to be wholly

frivolous, and counsel’s request to withdraw is found well-taken and granted.

                                         Conclusion

       {¶ 26} The judgment of the Lucas County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The

clerk is ordered to serve all parties with notice of this decision.


                                                                        Judgment affirmed.




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                                                               State v. Whittington
                                                               C.A. No. L-16-1073




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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