[Cite as State v. Burnett, 2014-Ohio-1358.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2013-L-053
        - vs -                                    :

CHARLES E. BURNETT, III,                          :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
000534.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Aaron T. Baker, 38109 Euclid Avenue, Willoughby, OH 44094 (For Defendant-
Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Charles E. Burnett III, appeals his convictions and

sentence for Receiving Stolen Property, Identity Fraud, and Forgery. Burnett received

an aggregate prison sentence of eighteen months.             The issue before this court is

whether an appeal is rendered wholly frivolous where the appellant properly entered a

guilty plea and was sentenced accordingly. For the following reasons, we affirm the

decision of the court below.
      {¶2}     On September 24, 2012, the Lake County Grand Jury indicted Burnett for

the following: Receiving Stolen Property (Count 1), a felony of the fifth degree in

violation of R.C. 2913.51(A); Identity Fraud (Counts 2, 3, 4, 5, 6, 7, 8, 9, and 10),

felonies of the fifth degree in violation of R.C. 2913.49(B)(2); and Forgery (Counts 11,

12, 13, 14, 15, 16, 17, 18, 19, and 20), felonies of the fifth degree in violation of R.C.

2913.31(A)(2).

      {¶3}     On September 27, 2012, Burnett waived the right to be present at his

arraignment and entered a plea of not guilty to all charges.

      {¶4}     On February 4, 2013, Burnett entered a Written Plea of Guilty to Receiving

Stolen Property (Count 1), Identity Fraud (Counts 2, 3, 4, and 5), and Forgery (Counts

11, 12, and 13).

      {¶5}     At the plea hearing, the trial judge reviewed the eight charges to which

Burnett was pleading guilty and Burnett indicated that he understood the charges and

had no questions.

      {¶6}     The trial judge then explained Burnett’s right to a jury trial.     Burnett

questioned the judge about the possibility of pleading guilty to some counts while being

tried for the remaining counts. The judge explained that it was within his discretion to

allow Burnett to enter a partial plea and Burnett indicated that he was satisfied with that

explanation.

      {¶7}     The trial judge continued advising Burnett that the jury would have to

return a unanimous verdict; the prosecutor bore the burden of proving Burnett’s guilt

beyond a reasonable doubt; Burnett could compel witnesses to testify on his behalf;

Burnett could not be compelled to testify against himself; the prosecutor could not use




                                            2
information from the proffer agreement as evidence at trial; and Burnett had a right to

appeal.

       {¶8}   Burnett   expressed      some   hesitation   to   pleading   guilty,   variously

complaining of his lack of money, dissatisfaction with defense counsel, and the charges

against him. The trial judge assured Burnett that he was under no obligation to plead,

to which Burnett responded that it was “already forced.” When the trial judge inquired

as to how it was forced, Burnett responded “because it is,” “I understand everything that

you just said to me,” and “I plead guilty.”

       {¶9}   Burnett asked the trial judge if he would receive maximum sentences for

exercising his right to trial. The trial judge explained that it was a possibility, but that

Burnett’s actual sentence would be at his discretion and would be based on a

presentence investigation report and the sentencing hearing. The trial judge further

advised that the charges against Burnett were probationable offenses. Burnett then

repeated that he would plead guilty.

       {¶10} The trial judge advised Burnett that his guilty plea would constitute a

complete admission of guilt and the court would proceed to sentencing after a

presentence investigation report was prepared.

       {¶11} The trial judge explained that a fifth degree felony carried a potential

maximum prison sentence of one year; there was a presumption of probation

(community control sanctions); the presumption is rebutted if Burnett has previously

been to prison; sentences could be served concurrently or consecutively; Burnett could

be placed on post-release control following his release from prison; the court could

order Burnett to pay fines up to a maximum of $20,000 in addition to restitution; Burnett




                                              3
could receive probation instead of prison; Burnett had the right to address the court prior

to sentencing; and sentencing was at the court’s discretion.

       {¶12} Burnett affirmed that no promises were made to him regarding sentencing,

he wished to plead guilty, and he entered his plea freely and voluntarily.

       {¶13} The prosecutor then stated what the evidence would have shown at trial:

       [O]n March 30, twenty-twelve, Charles E. Burnett, III, * * * went into the

       Wal*Mart located in Mentor, Lake County, Ohio. He had on him multiple

       credit cards and he went first to a register at the Lawn and Garden

       Department, where he purchased multiple gift cards. He would swipe the

       credit card and then sign his name on the electronic pad. * * * [T]wo or

       more of those swipes charged the MidSouth Federal Credit Union, the

       account for Tammy Beasley, using her debit, slash, credit card.

       He also signed that receipt as if that identifying information, the credit card

       number, were in fact his. On two, at least two different occasions at that

       register [sic]. The credit card in his hand had the identifying information

       on it that had been stolen from Miss Beasley and that card was, the fake

       card, was not in fact Miss Beasley’s card.

       He then went to the Jewelry Department where he again on multiple

       occasions, at least two, swiped the same card charging Miss Beasley’s

       account and signed those receipts also indicating that that was a true

       receipt when it was not.




                                             4
      All of that -- Miss Beasley is not familiar with Mr. Burnett, did not give him

      permission to use her credit card number and gave nobody permission to

      do so.

      {¶14} Burnett admitted the truth of the prosecutor’s proffer and entered guilty

pleas to Receiving Stolen Property (Count 1), Identity Fraud (Counts 2, 3, 4, and 5), and

Forgery (Counts 11, 12, and 13). The trial judge accepted the pleas.

      {¶15} On May 15, 2013, Burnett’s sentencing hearing was held.               Defense

counsel addressed the court and argued for Burnett to receive probation and for the

merger of several of the Counts.      Burnett also addressed the court himself.        The

prosecutor opposed merging any of the Counts and argued for a prison sentence.

      {¶16} The trial judge stated that he had considered the presentence

investigation report, the arguments of the parties, and the nature and circumstances of

the offenses in light of the purposes and principles of felony sentencing. The court

found that Burnett’s conduct was part of organized criminal activity and the victim

suffered mental anguish, but the amount of loss, $900, was much less than in similar

types of cases. The trial judge noted that most of the factors indicating that recidivism

was more likely were present: Burnett had lengthy juvenile and adult records, including

prior felony convictions and prison time.       The trial judge found a lack of genuine

remorse. In consideration of the record before him, the trial judge determined that a

prison sentence was consistent with the principles and purposes of sentencing.

      {¶17} The trial judge merged Counts 3, 4, and 5 of Identity Fraud into Count 2

and Counts 12 and 13 of Forgery into Count 11. The trial judge sentenced Burnett to a

prison term of seven months on Count 1 (Receiving Stolen Property) and seven months




                                            5
on Count 11 (Forgery), both sentences to be served concurrently with each other. The

trial judge sentenced Burnett to a prison term of eleven months for Count 2 (Identity

Fraud), to be served consecutively with the sentences for Counts 1 and 11. Thus,

Burnett received an aggregate prison term of eighteen months. The trial judge advised

Burnett that, upon his release from prison, he could be placed on three years of post-

release control.

       {¶18} The trial judge ordered Burnett to make restitution in the amount of $900

and to pay the costs of the action.

       {¶19} On May 20, 2013, a written Judgment Entry of Sentence was issued.

       {¶20} On June 4, 2013, Burnett filed a Notice of Appeal.

       {¶21} On September 4, 2013, appellate counsel filed the Brief of Appellant,

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

Counsel represented that he had reviewed Burnett’s file and found “no error by the trial

court prejudicial to the rights of Appellant which may be argued to this court on appeal.”

Counsel requested that “this court * * * independently review the transcript of

proceedings and case file to determine whether any possible error exists,” and that he

be granted leave to withdraw as counsel “on the basis that the appeal is frivolous.”

       {¶22} On October 18, 2013, this court granted Burnett thirty days in which “to file

a brief or memorandum * * * which raises any additional arguments in support of his

appeal for this court’s review.” Appellate counsel’s motion to withdraw was ordered to

be “held in abeyance pending this court’s further review and determination pursuant to

Anders.”




                                            6
      {¶23} Burnett has not filed any further brief or memorandum in support of his

appeal.

      {¶24} The United States Supreme Court has summarized the procedure in

Anders cases as follows:

      Appointed counsel is first required to conduct “a conscientious

      examination” of the case. * * * If he or she is then of the opinion that the

      case is wholly frivolous, counsel may request leave to withdraw.            The

      request “must, however, be accompanied by a brief referring to anything in

      the record that might arguably support the appeal.” Once the appellate

      court receives this brief, it must then itself conduct “a full examination of all

      the proceeding[s] to decide whether the case is wholly frivolous.” * * *

      Only after this separate inquiry, and only after the appellate court finds no

      nonfrivolous issue for appeal, may the court proceed to consider the

      appeal on the merits without the assistance of counsel.

Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

      {¶25} In his brief, appellate counsel noted Burnett’s confusion at the change of

plea hearing “over what he was entering a ‘guilty’ plea to, whether he would receive

prison time, and what amount of prison time he would receive in the event he did

receive prison time.” Counsel also noted, at the sentencing hearing, the trial court’s

decision to impose a prison sentence despite the availability of community control

sanctions.

      {¶26} Having fully examined the record of the proceedings in this case, we find

no nonfrivolous issues for appeal. The trial court adequately addressed any concerns




                                             7
and misunderstandings expressed by Burnett at the change of plea hearing and

otherwise complied with Criminal Rule 11(C)(2) and ensured that Burnett’s guilty plea

was knowing, intelligent, and voluntary. With respect to sentencing, Burnett’s extensive

juvenile and criminal records justified the court’s decision not to impose community

control sanctions.       Additionally, defense counsel provided effective assistance of

counsel, securing for Burnett an eighteen-month prison sentence for three felony

convictions despite an original twenty-count indictment and eight-count guilty plea.

       {¶27} Contrary to the position taken by the dissent, you have no right to file a

baseless or frivolous appeal. An appeal of right means that you may appeal without

restriction when you have a reason to appeal. App.R. 23; Talbott v. Fountas, 16 Ohio

App.3d 226, 475 N.E.2d 187 (10th Dist.1984), paragraph one of the syllabus (“[a]

frivolous appeal under App.R. 23 is essentially one which presents no reasonable

question for review”).

       {¶28} For the foregoing reasons, Burnett’s appeal is without merit and wholly

frivolous. Appellate counsel’s motion to withdraw is granted. The judgment of the Lake

County Court of Common Pleas, sentencing Burnett to an aggregate prison term of

eighteen months for Receiving Stolen Property, Forgery, and Identity Fraud, is affirmed.

Costs to be taxed against appellant.



CYNTHIA WESTCOTT RICE, J., concurs in judgment only,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                         ___________________________________




                                             8
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶29} I respectfully dissent.

       {¶30} The majority holds that appellant’s appeal is without merit and wholly

frivolous. For the following reasons, I disagree.

       {¶31} Under the United States Constitution, there is no right to appeal, “as a

matter of right.” See Abney v. United States, 431 U.S. 651, 656 (1977) (holding that

there is no constitutional right to appeal; rather, the right to appeal in a criminal case is a

creature of statute). However, an appeal is a matter of right in criminal proceedings

under the Ohio Constitution. See State v. Awkal, 8th Dist. Cuyahoga Nos. 98532 and

98553, 2012-Ohio-3970, ¶2 (Blackmon, A.J.); Article IV, Sections 1, 2, and 3 of the Ohio

Constitution (appeal “as a matter of right”).

       {¶32} An appeal “as of right” is “[a]n appeal to a higher court from which

permission need not be first obtained.” Black’s Law Dictionary 74 (7th Ed.2000). In

Ohio, in addition to the Ohio Constitution, pursuant to statute, “a defendant who is

convicted of or pleads guilty to a felony may appeal as a matter of right.”               R.C.

2953.08(A). Thus, it logically follows that if an appeal is a matter of right in criminal

proceedings in Ohio, how can an appeal be frivolous?

       {¶33} Under this writer’s independent examination of the record, I find at least

one issue of arguable merit as to whether appellant was properly sentenced pursuant to

R.C. 2941.25 and 2929.11. Therefore, although I agree with granting Attorney Aaron

Baker’s motion to withdraw as he has satisfied his duties under Anders, I believe that

new appellate counsel must be appointed to pursue this appeal. Thus, I would direct




                                                9
newly appointed counsel to prepare an appellate brief discussing the arguable issue

identified herein and any further arguable issues which may be found in the record.

      {¶34} Accordingly, I respectfully dissent.




                                           10
