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State v. Talbott

November 26, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
AIRIK TALBOTT, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 07 CR 1002.

The opinion of the court was delivered by: DeGenaro, P.J.

OPINION

JUDGMENT: Affirmed. Counsel's Motion to Withdraw is Granted.

JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite.

{¶1} This timely appeal comes for consideration upon the record in the trial court, and defense counsel's no-merit brief and motion to withdraw. Appellant, Airik Talbott, appeals the decision of the Mahoning County Court of Common Pleas convicting him of one count of aggravated robbery with a firearm specification, and sentencing him to eight years in prison. Talbott's counsel has filed a no-merit brief on appeal and seeks to withdraw as counsel. Talbott did not file a pro se brief.

{¶2} On January 17, 2007, a complaint was filed against Talbott in the Mahoning County Court of Common Pleas, Juvenile Division, alleging he was a delinquent child who had committed one count of aggravated robbery pursuant to 2911.01(A)(1)(C), with a firearm specification, pursuant to R.C. 2941.145(A). The charges were made in connection to a robbery of a drug store that had taken place when Talbott was seventeen years old. Talbott initially pled not guilty and counsel was appointed. The State then filed a motion to relinquish jurisdiction to the Mahoning County Common Pleas, General Division, to have Talbott adjudicated as an adult.

{¶3} On August 3, 2007, Talbott appeared in court along with his attorney and his mother, and agreed to waive the probable cause hearing and have the matter bound over to the General Division. In exchange, the State agreed to dismiss a separate juvenile case. The court concurred and transferred the case.

{¶4} On September 13, 2007, Talbott was indicted by the Mahoning County Grand Jury on one count of aggravated robbery, a first-degree felony, pursuant to R.C. 2911.01(A)(1)(C), with a firearm specification, pursuant to R.C. 2941.145(A). Talbott pled guilty to the charges contained in the indictment. In exchange, the State agreed to recommend that Talbott receive the minimum prison sentence for his crimes, i.e., six years in prison: three for the aggravated robbery count and three for the firearm specification.

{¶5} The trial court ultimately sentenced Talbott to a total of eight years in prison: five for the aggravated robbery and three for the firearm specification, along with five years mandatory post-release control. On December 14, 2007, the court issued its judgment entry of sentencing.

{¶6} On September 5, 2008, we issued a limited remand to the trial court, because the sentencing entry did not comport with the requirements set forth in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. On September 15, 2008 the trial court issued an amended sentencing entry that conforms to the Baker requirements. As such, the amended sentencing entry constitutes a final appealable order and this court may entertain the merits of the present appeal.

{¶7} Talbott's appointed appellate counsel filed a no-merit brief in this case and requested to withdraw, in accordance with Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 and State v. Toney (1970), 23 Ohio App.2d 203, 52 O.O.2d 304, 262 N.E.2d 419. An attorney appointed to represent an indigent criminal defendant on his first appeal as of right may seek permission to withdraw if the attorney can show that there is no merit to the appeal. See, generally, Anders, 386 U.S. 738. To support such a request, appellate counsel is required to undertake a conscientious examination of the case and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support an appeal. Toney at 207. The reviewing court must then decide, after a full examination of the proceedings, whether the case is wholly frivolous. Id.

{¶8} In Toney, this Court established guidelines to be followed when counsel of record determines that an indigent's appeal is frivolous:

{¶9} "3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent's appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.

{¶10} "4. Court-appointed counsel's conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.

{¶11} "5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.

{¶12} "6. Where the Court of Appeals makes such an examination and concludes that the appeal is wholly frivolous, the motion of an indigent appellant for the appointment of new counsel for the purposes of appeal should be denied.

{¶13} "7. Where the Court of Appeals determines that an indigent's appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed." Id. at syllabus.

{¶14} Counsel in this case has concluded after reviewing the record that there are no issues present to support an appeal.

{¶15} This Court must now review the proceedings and determine whether it agrees that an appeal would be wholly frivolous.

{¶16} Normally, when a criminal defendant pleads guilty, our review is limited to an examination of the plea and the sentencing. A defendant who pleads guilty "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-130, 595 N.E.2d 35.

{ΒΆ17} However, in this case, we may also review the bindover proceedings from juvenile court, as it is a jurisdictional issue which is not waived by the guilty plea. See State v. Pruitt, 11th ...


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