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State of Ohio v. Scott D. Motter

September 28, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
SCOTT D. MOTTER DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CRI 110

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

JUDGMENT:

JUDGES: Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Affirmed

{¶1} Appellant, Scott D. Motter, plead guilty to a bill of information containing four counts: one count of gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4) and three counts attempted child endangering, felonies of the fourth degree, in violation of R.C. 2923.02(A) and R.C. 2919.22(B)(4)

{¶2} Appellant was sentenced to a term of five years on the charge of gross sexual imposition and a term of eighteen months on each of the attempted child endangerment counts. All four of these sentences were ordered served consecutive to one another, however, for a total term of incarceration of nine and one half years.

{¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924, indicating that the within appeal was wholly frivolous and setting forth two proposed assignments of error. Appellant did not file a pro se brief alleging any additional assignments of error. Counsel for Appellant has raised two potential assignments of error asking this Court to determine whether Appellant's plea was entered knowingly, intelligently, and voluntarily and whether Appellant's sentence was contrary to law.

I.

{¶4} "DEFENDANT/APPELLANT'S PLEA SHOULD BE SET ASIDE INSOFAR AS IT WAS NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY.

II.

{¶5} "DEFENDANT/APPELLANT'S SENTENCE SHOULD BE VACATED AS IT IS EXCESSIVE, UNREASONABLE AND CONTRARY TO LAW."

{¶6} In Anders, the United States Supreme Court held if, after a conscientious examination of the record, a defendant's counsel concludes the case is wholly frivolous, then he should so advise the court and request permission to withdraw. Id. at 744. Counsel must accompany his request with a brief identifying anything in the record that could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any matters that the client chooses. Id. Once the defendant's counsel satisfies these requirements, the appellate court must fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court also determines that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id.

{¶7} Counsel in this matter has followed the procedure in Anders v. California (1967), 386 U.S. 738. We now will address the merits of ...


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