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State v. Bryant

Court of Appeals of Ohio, Sixth District

June 21, 2013

State of Ohio Appellee
v.
Shane J. Bryant Appellant

Trial Court No. 11 CR 334

Richard E. Garand, for appellant.

DECISION AND JUDGMENT

SINGER, P.J.

{¶ 1} This matter is an appeal from the judgment of the Sandusky County Court of Common Pleas. Following a denial of appellant's motion to suppress and a subsequent plea of no contest, appellant, Shane J. Bryant, was found guilty of one count of attempted rape, a felony in the second degree. He was sentenced to five years incarceration.

{¶ 2} Appellant's appointed counsel has requested leave to withdraw in accordance with the procedure set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the appeal, determines it to be wholly frivolous he should so advise the court and request permission to withdraw. Id. at 744. The request shall include a brief identifying anything in the record that could arguably support an appeal. Id. Counsel shall also furnish his client with a copy of the request to withdraw and its accompanying brief, and allow the client sufficient time to raise any matters that he chooses. Id. The appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is 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

{¶ 3} Here, appointed counsel has met the requirements set forth in Anders. Counsel also informed appellant of his right to file his own, additional assignments of error and appellate brief The court notes that appellant has not filed a pro se brief or otherwise responded to counsel's request to withdraw. Accordingly, this court shall proceed examining the potential assignment of error set forth by counsel, as well as the entire record below to determine whether this appeal lacks merit deeming it wholly frivolous.

{¶ 4} On April 5, 2011, appellant was charged with four counts of rape. Appellant filed a motion to suppress his statements to the detective about engaging in sexual intercourse with the victim at the party. However, the trial court found this claim without merit and denied the motion. Appellant then pleaded no contest to a single count of the lesser included charge of attempted rape, a violation of R.C. 2907.02(A)(2) and R.C. 2923.03 and was found guilty by the trial court. In exchange, the state agreed to dismiss the remaining charges and entered into a joint recommendation for a five-year term of incarceration.

{¶ 5} Prior to accepting the change in plea, the court explained to appellant his rights. Once satisfied that appellant was cognizant of his rights and had waived them properly, the court accepted the change in plea. On September 26, 2011, appellant was sentenced to five years incarceration. Appellant's counsel now appeals pursuant to Anders.

{¶ 6} In his Anders brief appellant's counsel raises the following potential assignments of error:

I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT/APPELLANT'S KNOWING, INTELLIGENT AND VOLUNTARY PLEA.
II. WHETHER THE TRIAL COURT ERRED WHEN IT SENTENCED THE DEFENDANT/APPELLANT TO A TERM OF INCARCERATION ALLOWABLE BY LAW.
III. WHETHER DEFENDANT/APPELLANT IS ENTITLED TO SPECIFIC PERFORMANCE OF THE JOINT RECOMMENDATION OF THE PROSECUTOR AND DEFENSE ATTORNEY.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.

{¶ 7} In his first potential assignment of error, appellant questions whether the record reflects his plea of no contest was made knowingly, ...


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