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State v. Mann

December 5, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CHARLES MANN, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 07CR164.

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

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro.

¶{1} Defendant-appellant Charles Mann appeals from his conviction in the Jefferson County Common Pleas Court of burglary, a violation of R.C. 2911.12(A)(2), a second degree felony. Appointed appellate counsel filed a no-merit brief in accordance with State v. Toney (1970), 23 Ohio App.2d 203 and requested to withdraw. Thus, the issue presented in this case is whether the appeal is frivolous. A review of the case file reveals that there are no appealable issues. Therefore, the judgment of the trial court is affirmed and counsel is permitted to withdraw.

STATEMENT OF CASE

¶{2} On January 8, 2008, Mann was indicted for burglary, a violation of R.C. 2911.12(A)(2). Within days of indictment, he entered a not guilty plea to the charge. In early March, a Crim.R. 11 hearing was held where Mann withdrew his not guilty plea and pled guilty to the charge. The trial court accepted the plea and found him guilty. Sentencing commenced on April 21, 2008; Mann was sentenced to an 8 year sentence, the maximum allowable by law. Mann timely appealed and appellate counsel filed a Toney brief.

ANALYSIS

¶{3} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent's appeal is frivolous:

¶{4} "3. Where 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.

¶{5} "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.

¶{6} "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.

¶{7} "* * *

ΒΆ{8} "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 ...


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