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State of Ohio v. Joey Westbrook

October 31, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JOEY WESTBROOK, DEFENDANT-APPELLANT.



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

Cite as State v. Westbrook,

DECISION AND JUDGMENT ENTRY

{¶1} Joey Westbrook was convicted of various drug offenses and sentenced to 16 years imprisonment. His appointed appellate counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), advising us that he has reviewed the record and can find no meritorious claims. As a result he has moved to withdraw from this case. We agree with counsel that the proposed assignment of error has no arguable merit and grant his motion to withdraw. Furthermore, after independently reviewing the record we find that no arguably meritorious issues exist. Accordingly, we affirm the trial court's judgment.

I. FACTS

{¶2} Joey Westbrook was convicted of various drug offenses and filed a direct appeal with this court. Accordingly, the trial transcripts in this case were forwarded to the court on June 9, 2009. We reversed the trial court's judgment in part and remanded the case for resentencing. Upon remand, the trial court sentenced Westbrook to 16 years.

{¶3} On June 23, 2011, Westbrook filed a motion for relief from judgment under Civ.R. 60(B), urging the trial court to reconsider its 16 year sentence. However, the trial court construed Westbrook's motion as a petition for post-conviction relief under R.C. 2953.21 and Crim.R. 35. The court found that the motion was untimely because it was filed more than 180 days after the trial transcripts were filed with this court. Consequently, the trial court overruled his motion. This appeal followed. II. PROPOSED ASSIGNMENT OF ERROR

{¶4} "In Anders, the United States Supreme Court held that if counsel determines after a conscientious examination of the record that the case is wholly frivolous, counsel should so advise the court and request permission to withdraw.

Counsel must accompany the request with a brief identifying anything in the record that could arguably support the appeal. Counsel also must furnish the client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that the client chooses. Once these requirements have been satisfied, the appellate court must then fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court determines that the appeal is frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating federal constitutional requirements or it may proceed to a decision on the merits if state law so requires. Alternatively, if the appellate court concludes that any of [the] legal points are arguable on their merits, it must afford the appellant the assistance of counsel to argue the appeal." (Citations omitted.) State v. Ross, 4th Dist. No. 10CA31, 2011-Ohio-1136, ¶ 3.

{¶5} Here, Westbrook's appointed counsel has satisfied the requirements set forth in Anders and Westbrook has filed a pro se brief. Consequently, we will examine appointed counsel's proposed assignment of error, the pro se assignments of error and the entire record to determine if this appeal has arguable merit.

{¶6} Appointed counsel raises one proposed assignment of error for our review:

{¶7} 1. "MR. WESTBROOK'S MOTION WAS IMPROPERLY DENIED."

III. LAW AND ANALYSIS

{¶8} Appointed counsel proposes that the trial court erred by construing

Westbrook's motion filed under Civ.R. 60(B) as a motion for post-conviction relief and applying the time bar for that procedure. Counsel argues that because the criminal rules provide no express mechanism to allow a court to reconsider its sentence, Civ.R. 60(B) and its procedure were controlling here. Counsel claims the trial ...


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