[Cite as State v. Gaona, 2011-Ohio-5214.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                  :      Hon. Sheila G. Farmer, J.
                                            :      Hon. Patricia A. Delaney, J.
-vs-                                        :
                                            :
GEORGE GAONA                                :      Case No. 11-CA-27
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Licking County Court of
                                                Common Pleas, Case No. 10 CR 148



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                         October 7, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

KENNETH OSWALT                                  CRAIG M. JAQUITH
Licking County Prosecutor                       Assistant State Public Defender
20 South Second Street                          250 East Broad Street
Fourth Floor                                    Suite 1400
Newark, OH 43055                                Columbus, OH 43215
Licking County, Case No. 11-CA-17                                                         2

Farmer, J.


      {¶1}    Appellant, George Gaona, was indicted on two counts of Having Weapons

while under Disability, felonies of the third degree, in violation of R.C. 2923.13(A)(2).

Trial Counsel for Appellant filed a motion to suppress evidence which was overruled

following a hearing. Appellant then entered a plea of no contest to Count One of the

indictment.   The State dismissed Count Two of the Indictment.             Appellant was

sentenced to a term of two years of incarceration. A timely notice of appeal was filed.

      {¶2}    Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth one proposed

Assignments of Error.     Appellant did not file a pro se brief alleging any additional

Assignments of Error.

      {¶3}    Counsel for Appellant raises the following potential assignment of error:

      {¶4}    “I. THE TRIAL COURT APPLIED AN INCORRECT LEGAL STANDARD

REGARDING WARRANTLESS SEARCHES WHEN IT DENIED APPELLANT’S

SUPPRESSION MOTION. ENTRY, DEC. 17, 2010.”

      {¶5}    In Anders, the United States Supreme Court held 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 time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
Licking County, Case No. 11-CA-17                                                       3


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.

         {¶6}   Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s

motion to withdraw. For the reasons which follow, we affirm the judgment of the trial

court:

                                                 I.

         {¶7}   In his only assignment of error, Appellant argues the trial court used the

incorrect standard in evaluating whether Appellant’s motion to suppress should have

been granted.

         {¶8}   While Appellant was on probation for a sex offense conviction in Texas, he

requested to have his probation transferred to Ohio. Pursuant to his request to transfer

his probation, Appellant executed a document titled, “Consent to Random Drug or

Alcohol Testing and to Searches Based on Reasonable Suspicion.” This document

contained the following sentence, “I agree to consent to the search of my person, my

residence and my belongings while under supervision in order to insure against violation

of the terms of my parole, probation of other supervision.”

         {¶9}   Upon the transfer of probation, Appellant was supervised by the Licking

County probation department. A parole officer from Licking County attempted to locate

Appellant at his residence on two occasions without success. The officer noticed the
Licking County, Case No. 11-CA-17                                                      4


mailbox was full of mail leading to the conclusion no one had been at the residence for

some time to retrieve the mail. Upon this discovery, a search of the residence was

conducted. During the search, the parole officer found bullets. He also noticed

Appellant’s belongings had been removed supporting the conclusion Appellant had

absconded. A motion to suppress the evidence found during the search was filed by

Appellant. The trial court found Appellant waived his right to challenge any search by

his probation supervisor based upon the execution of the consent to search form.

Appellant argues the consent to search form required the existence of reasonable

suspicion in order for the search to be valid.

       {¶10} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154–155, 797 N.E.2d 71, 74, 20030–

Ohio–5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate

witness credibility. See State v.. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d

988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111

Ohio App.3d 142, 675 N.E.2d 1268. However, once this Court has accepted those facts

as true, it must independently determine as a matter of law whether the trial court met

the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997),

124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002),

534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct.
Licking County, Case No. 11-CA-17                                                            5


1657. That is, the application of the law to the trial court's findings of fact is subject to a

de novo standard of review. Ornelas, supra. Moreover, due weight should be given “to

inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

       {¶11} We find the trial court did not err in concluding Appellant consented to the

search of his residence under the conditions which were present at the time of the

search. For this reason, Appellant’s assignment of error is overruled.

       {¶12} For these reasons, after independently reviewing 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. Costs to Appellant.



By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                                s/ Sheila G. Farmer_________________


                                               s/ W. Scott Gwin____________________


                                               _s/ Patricia A. Delaney________________

                                                                 JUDGES

SGF/as 907
Licking County, Case No. 11-CA-17                                                  6


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :        JUDGMENT ENTRY
                                            :
GEORGE GAONA                                :
                                            :
       Defendant-Appellant                  :        CASE NO. 11-CA-27




       For the reasons stated in our accompanying Memorandum-Opinion, counsel is

granted leave to withdraw and the judgment of the Court of Common Pleas of Licking

County, Ohio is affirmed. Costs to appellant.



                                            s/ Sheila G. Farmer_________________


                                            s/ W. Scott Gwin____________________


                                            _s/ Patricia A. Delaney________________

                                                           JUDGES
