[Cite as State v. Lemmings, 2016-Ohio-7414.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :  C.A. CASE NO. 2016-CA-10
                                                     :
 v.                                                  :  T.C. NO. 15CR346
                                                     :
 CARL LEMMINGS                                       :  (Criminal appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :
                                                ...........

                                               OPINION

              Rendered on the ___21st___ day of _____October_____, 2016.

                                                ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

JULIA B. PEPPO, Atty. Reg. No. 0037172, 117 S. Main Street, Suite 400, Dayton, Ohio
45422
      Attorney for Defendant-Appellant

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

DONOVAN, P.J.

        {¶ 1} Defendant-appellant Carl Lemmings appeals his conviction and sentence for

one count of theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree.

Lemmings’ appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and now seeks leave to withdraw as counsel.
                                                                                       -2-


                        FACTS and PROCEDURAL HISTORY

      {¶ 2} On July 13, 2015, Lemmings was indicted for one count of theft, in violation

of R.C. 2913.02(A)(1), a felony of the fifth degree. After he was arrested on July 22,

2015, Lemmings posted bail and was released on the same day. The State filed a

response to a motion for a Bill of Particulars on July 30, 2015, which set forth the basis

for Lemmings’ indictment as follows:

             As a continuous course of conduct from on or about April 2, 2015 to

      on or about April 17, 2015, the defendant, Carl Lemmings, used Linda

      Adamson’s credit/debit card to make six money transfers with Western

      Union without her permission. The total that the defendant received from

      the money transfers was $424.00.

      {¶ 3} On October 26, 2015, Lemmings pled guilty to the charged offense. In

return for Lemmings’ guilty plea, the State agreed to remain silent at disposition. The

parties also agreed that Lemmings would be responsible for restitution to Linda Adamson

in the amount of $424.00. After accepting Lemmings’ guilty pleas, the trial court referred

the matter for a presentence investigation report (“PSI”).      The trial court scheduled

Lemmings’ disposition for November 17, 2015.

      {¶ 4} Lemmings failed to appear at his scheduled disposition on November 17,

2015, and the trial court issued a capias for his arrest. Lemmings was arrested on

December 21, 2015, and held in jail until his sentencing hearing scheduled for January 8,

2016. The trial court sentenced Lemmings to twelve months in prison and ordered him

to pay restitution to Linda Adamson in the amount of $424.00.

      {¶ 5} Based on the belief that no prejudicial error occurred below and that any
                                                                                            -3-


grounds for appeal would be frivolous, Lemmings’ appellate counsel filed a motion to

withdraw pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.

                                    ANDERS STANDARD

       {¶ 6} Anders outlines the procedure counsel must follow to withdraw as counsel

due to the lack of any meritorious grounds for appeal. In Anders, the United States

Supreme Court held that if appointed counsel, after a conscientious examination of the

case, determines the appeal to be wholly frivolous, he or she should advise the court of

that fact and request permission to withdraw. Anders at 744. This request, however,

must be accompanied by a brief identifying anything in the record that could arguably

support the appeal. Id. Further, counsel must also furnish the client with a copy of

the brief, and allow the client sufficient time to file his or her own brief, pro se. Id.

       {¶ 7} Once the appellant's counsel satisfies these requirements, this court must

fully examine the proceedings below to determine if any arguably meritorious issues

exist. Id. If we determine that the appeal is wholly frivolous, we may grant counsel's

request to withdraw and dismiss the appeal without violating constitutional requirements,

or we may proceed to a decision on the merits if state law so requires. Id.

       {¶ 8} In this case, appointed counsel fully complied with the requirements

of Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Lemmings has failed to file a

pro se brief.

       {¶ 9} Lemmings’ appointed counsel states in her Anders brief that she extensively

reviewed the record, including the transcript of the proceedings and the PSI, and

concluded that she could not make any meritorious arguments on Lemmings’ behalf. We

also note that appointed counsel did not present any potentially meritorious assignments
                                                                                   -4-


of error for our consideration.

                                      CONCLUSION

       {¶ 10} Pursuant to our responsibilities under Anders, we have conducted an

independent review of the entire record, including the pre-sentence investigation

report. Having done so, we agree with the assessment of appointed counsel that there

are no arguably meritorious issues to present on appeal.

       {¶ 11} Therefore, no potential assignments of error with arguable merit having

been found, the judgment of the trial court is affirmed.

                                       ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Megan M. Farley
Julia B. Peppo
Carl Lemmings
Hon. Richard J. O’Neill
