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State v. Noland

Court of Appeals of Ohio, Fourth District

November 5, 2004

State of Ohio, Plaintiff-Appellee,
v.
Dennis Noland, Defendant-Appellant.

Barbara A. Farnbacher, [1] Columbus, Ohio, for appellant, and Dennis Noland, Chillico the, appellant pro se.

Alison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.

DECISION

Roger L. Kline, Presiding Judge.

{¶1} Dennis Noland appeals his sentence by the Washington County Court of Common Pleas to the maximum sentence of ten years for one count of rape, a first-degree felony violation of R.C. 2907.02(A)(1)(c). Noland contends that the trial court erred in imposing the maximum sentence without stating adequate reasons during the resentencing hearing for its finding that Noland's offense constituted the "worst form of the offense." Because we find that the trial court stated adequate reasons for finding that Noland committed the worst form of the offense, we disagree. Additionally, Noland filed a pro se brief asserting ineffective assistance of counsel at his trial and sexual predator hearing. Because Noland's case was before the trial court solely on the issue of re-sentencing, we do not possess the authority to consider alleged errors from the trial or sexual predator hearing. Accordingly, we affirm the judgment of the trial court.

I.

{¶2} Noland pled guilty to raping his step-daughter, who was twenty-two years old at the time of the offense but had the mental capacity of a three and a half year old child. He appeared before the trial court for a sexual predator hearing and sentencing for the first-degree felony violation of R.C. 2907.02(A)(1)(c). The court adjudicated Noland a sexual predator and sentenced him to the maximum term of ten years imprisonment. Throughout the trial court proceedings, attorney George Cosenza represented Noland.

{¶3} The Ohio Public Defender filed a notice of appeal on Noland's behalf and represented him throughout the direct appeal. This court affirmed Noland's conviction, sentence, and status as a sexual predator in State v. Noland, Washington App. No. 02CA28, 2003-Ohio-1386. Noland appealed his sentence to the Ohio Supreme Court. The Ohio Supreme Court reversed the case and remanded it for re-sentencing under the authority of State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165. State v. Noland, 99 Ohio St.3d 474, 2003-Ohio-4167.

{¶4} The trial court held a re-sentencing hearing. At the hearing, Assistant Washington County Public Defender Raymond H. Smith represented Noland. The state presented evidence and requested that the court re-impose the maximum sentence of ten years. Attorney Smith cross-examined the state's witness and argued for a shorter sentence. Noland declined to make a statement.

{¶5} The court indicated that it considered the record of the case, the testimony presented, the oral statements, the victim impact statements, the presentence report, and the parties' pre-sentence memoranda. The court found that Noland's was "one of the worst cases of denial and deflecting blame this Court's ever seen, " and noted that Noland tried to blame the victim, her mother, and others. Noland vehemently denied sexual contact with the victim, until two blood tests proved with 99.9% accuracy that he was the father of the fetus aborted by the victim. Additionally, the court opined that Noland tremendously minimized the seriousness of his conduct. For example, Noland claimed that the victim is smarter than people believe, and that she does not have the mentality of a three year old. Additionally, the court noted that Noland violated his position of trust in the victim's family. Based upon these factors, the court found that Noland committed the worst form of the offense. The court again sentenced Noland to ten years imprisonment, the maximum possible sentence.

{¶6} On appeal, Assistant Ohio Public Defender Barbara Farnbacher represents Noland. Pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, Attorney Farnbacher filed a motion to withdraw as counsel, notifying this court that she could not find a meritorious issue for appeal. Attorney Farnbacher also filed a brief outlining a potential assignment of error. Noland filed a pro se brief, alleging that his original trial counsel, Attorney Cosenza, made several errors during his representation.

{¶7} In Anders, the United States Supreme Court held that if, after a conscientious examination of the record, a defendant's counsel concludes that the case is wholly frivolous, she should so advise the court and request permission to withdraw. Id. at 744. Counsel must accompany her request with a brief identifying anything in the record that could arguably support her client's appeal. Id. Counsel also must: (1) furnish her client with a copy of the brief and request to withdraw; and (2) allow her client sufficient time to raise any matters that the client chooses. Id.

{¶8} Upon receiving an Anders brief, we must "conduct 'a full examination of all the proceedings to decide whether the case is wholly frivolous.'" Penson v. Ohio (1988), 488 U.S. 75, 80, 109 S.Ct. 346, quoting Anders, 386 US. at 744. After fully examining the proceedings below, if we find only frivolous issues on appeal, we then may proceed to address the case on its merits without affording appellant the assistance of counsel. Id.; see, also, State v. Kent, (Mar. 4, 1998), Jackson App. No. 96CA794; State v. Hart, (Dec. 23, 1997), Athens App. No. 97CA18. If we find, however, that meritorious issues for appeal exist, we must afford appellant the assistance of counsel in order that counsel may address the issues. Anders, 386 US. at 744; Penson, 488 US. at 80; see, e.g., State v. Alexander (Aug. 10, 1999), Lawrence App. No. 98CA29.

{¶9} Here, Noland's counsel satisfied the requirements in Anders. Additionally, Noland filed a pro se brief Accordingly, we will examine counsel's potential assignment of error, Noland's assignments of error, and the entire record below to determine if this appeal lacks merit. Counsel raises the following potential assignment of error: "The trial court erred when it imposed a maximum sentence without stating adequate reasons during the resentencing hearing to support the finding that this offense constituted the 'worst form of the offense.'" Noland ...


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