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State v. Lewis

December 2, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MARION LEWIS, JR., DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 97CR173.

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

OPINION

JUDGMENT: Affirmed.

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

{¶1} Defendant-appellant Marion Lewis, Jr. appeals from the resentencing order entered by the Columbiana County Common Pleas Court advising him of post-release control, which the original sentencing order failed to do. Counsel filed a no merit brief with a proposed assignment of error based upon appellant's argument below that the failure to originally advise him of post-release control barred any current imposition of such term. For the following reasons, the judgment of the trial court is affirmed and counsel is permitted to withdraw.

STATEMENT OF THE CASE

{¶2} Appellant was indicted for murder and unauthorized use of a motor vehicle. On November 26, 1997, appellant entered into a negotiated plea whereby he pled guilty to a lesser charge of voluntary manslaughter along with the unauthorized use charge. Appellant agreed that that sentence would run consecutively to his sentence in a Summit County case where he also agreed to plead guilty. Upon accepting the plea, the court sentenced appellant to consecutive sentences of ten years and one year as recommended by the state and ordered this sentence to run consecutively to the Summit County case as agreed by appellant.

{¶3} Because the sentencing entry did not mention post-release control as required by the Ohio Supreme Court and statute, appellant was ordered to be returned for resentencing prior to serving his eleven-year sentence in this case. His resentencing occurred on January 31, 2008. Appellant argued that because post-release control was not part of his original plea or sentence, the addition of it now would be a breach of contract and a violation of his double jeopardy rights. He stated that he would forgo these arguments if the court agreed to run his sentence concurrent with the Summit County Case. (Tr. 5, 9-10). The court thereafter reimposed the same sentence but added language regarding post-release control both orally and in writing.

NO MERIT BRIEF

{¶4} Appellant filed timely notice of appeal, and new counsel was appointed to represent him in the appeal. On June 13, 2008, counsel filed a motion to withdraw and a no merit brief with a proposed assignment of error. This court provided appellant until August 10, 2008 to file his own brief, but he did not do so.

{¶5} When appellate counsel seeks to withdraw and alleges that there are no meritorious arguments for appeal, the filing is known as a no merit or an Anders brief. See Anders v. California (1967), 386 U.S. 738. In this district, it has also been called a Toney brief. See State v. Toney (1970), 23 Ohio App.2d 203. We explained the following points and procedures in Toney:

{¶6} An indigent defendant's constitutional right to counsel on his direct appeal requires that court-appointed counsel make arguments in support of the appeal to the best of his ability. If, after a conscientious examination of the case, counsel concludes there are no good grounds for appeal, counsel should so advise the court and request permission to withdraw, accompanying his request with a brief if counsel finds anything in the record that might arguably support the appeal. A copy of counsel's request and brief is to be furnished to the defendant, who is given time to raise any additional points.

{ΒΆ7} The appellate court then examines the record and reviews any arguments presented by counsel or the defendant. If the court agrees that there are no good grounds for appeal, it may grant counsel's request to withdraw and affirm the trial court's judgment. If the court finds any legal points arguable on the merits, the court shall afford the indigent defendant ...


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