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State of Ohio v. Scott Orinn Brandeberry

November 10, 2011

STATE OF OHIO
APPELLEE
v.
SCOTT ORINN BRANDEBERRY
APPELLANT



Trial Court No. CR0200902878

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

Cite as State v. Brandeberry,

DECISION AND JUDGMENT

{¶1} This is an appeal from a sentencing judgment of the Lucas County Court of Common Pleas. Appellant entered a guilty plea to the felony charge of failure to verify, in violation of R.C. 2950.06(F) and 2950.99(A), a third degree felony. Appellant, who possesses an exceptionally lengthy criminal history including numerous felony convictions, was sentenced to a five-year term of incarceration, to be served consecutively with a term already being served in Arizona. For the reasons set forth more fully below, the judgment of the trial court is hereby affirmed.

{¶2} Counsel for appellant submitted a request to withdraw pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493. In support of his Anders' request to withdraw, counsel states that, after reviewing the record of proceedings in the trial court, he is unable to find any arguable issues on appeal. In conjunction with Anders, counsel for appellant sets forth the following proposed assignments of error:

Potential Assignments of error:

{¶3} " 1. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

{¶4} " 2. THE TRIAL COURT ABUSED ITS DESCRETION BY ACCEPTING THE APPELLANT'S GUILTY PLEA WITHOUT ENSURING THAT THE PLEA WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED.

{¶5} " 3. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO A MAXIMUM SENTENCE TO BE SERVED CONSECUTIVE TO THE TERM APPELLANT WAS SERVING IN ARIZONA."

{¶6} Anders, supra, and State v. Duncan (1978), 57 Ohio App.2d 93, 385 N.E.2d 323, detailed the procedure to be followed by appointed counsel who wishes to withdraw upon determining there is a lack of a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsel, after conscientious examination of the case, believes any appeal to be wholly frivolous, he should so advise the court and request permission to withdraw. Id. at 744.

{¶7} This request to withdraw must be accompanied by a brief identifying anything in the record that could arguably support an appeal. Id. Counsel must furnish his client with a copy of the brief and request to withdraw. Id. Once these requirements have been satisfied, the appellate court then conducts a full examination of the proceedings held below to determine if the appeal is frivolous. If the appeal is frivolous, the appellate court may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements or may proceed to a decision on the merits. Id.

{¶8} In the case before us, appointed counsel for appellant has satisfied the requirements set forth in Anders, supra. Accordingly, we shall proceed with an examination of the potential assignments of error set forth by counsel for appellant, review the record from below, and determine if this appeal is meritorious.

{¶9} The following undisputed facts are relevant to the issues raised on appeal. In 2005, appellant was convicted of unlawful sexual conduct with a minor, a felony of the third degree. This required the appellant to register as a sexual offender. Appellant violated these requirements on or about July 24, 2005, when, without permission, he moved to Arizona and failed to register the change of address. The record shows that appellant possesses a lengthy criminal history spanning several decades, encompassing approximately 100 criminal charges, including nearly 20 felonies.

{ΒΆ10} Appellant was indicted on September 28, 2009, on one count of failure to verify, in violation of R.C. 2950.06(F) and 2950.00(A), a felony of the third degree. Through appointed counsel, appellant entered a "not guilty" plea on April 22, 2010. On May 17, 2010, this matter went before the court pursuant to a negotiated plea agreement. Appellant withdrew his plea of "not guilty" and entered a plea of "guilty." The record of the colloquy clearly reflects that appellant was fully briefed of all potential consequences of the guilty plea and advised that the trial court was not ...


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