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State v. DuPuie

Court of Appeals of Ohio, Fourth District

July 5, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
PENELOPE L. DuPUIE, Defendant-Appellant.

CRIMINAL APPEAL FROM COMMON PLEAS DATE JOURNALIZED

COUNSEL FOR APPELLANT Aaron M. McHenry, Benson, McHenry & Sesser, LLC, 36 South Paint Street, Chillicothe, Ohio 45601 [1]

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge

{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of conviction and sentence. Penelope L. DuPuie, defendant below and appellant herein, pled guilty to the possession of cocaine in violation of RC. 2925.11. Appellant's counsel has advised us that he has reviewed the record and can discern no meritorious claim on appeal. Thus, under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellate counsel requests, and we hereby grant, leave to withdraw.

{¶ 2} Further, counsel represents that he reviewed the court file and transcripts and cannot posit any arguable error. Consequently, we must conduct an independent review of the record to determine if we can ascertain any arguable errors. See State v. Marcum, 2nd Dist. 24793, 2012-Ohio-6224, at ¶6.

{¶ 3} On October 28, 2011, the Ross County Grand Jury returned an indictment that charged appellant with the possession of cocaine. The trial court issued an arrest warrant that, apparently, was not executed for almost one year. Appellant pled not guilty at her October 9, 2012 arraignment.

{¶ 4} Subsequently, appellant agreed to plead guilty in exchange for a recommended five year prison sentence.[2] At the October 24, 2012 hearing, the trial court questioned appellant to ascertain her awareness of her constitutional rights and that she offered her plea knowingly and voluntarily. Satisfied that appellant understood her rights and voluntarily entered her guilty plea, the trial court found her guilty.

{¶ 5} The trial court sentenced appellant to serve three years of incarceration, the minimum sentence for a first degree felony, and two years less than the State's recommendation. The court also ordered five years of post release control. This appeal followed.

{¶ 6} As appellate counsel notes in his Anders brief, the record on appeal is sparse. No "motion practice" occurred, as counsel observes, but then again we find no indication that any such activity was warranted. We also point out that a guilty plea waives any claim to the ineffective assistance of trial counsel for failing to engage in such practice. See generally, State v. Allbaugh, 4th Dist. No. 12CA23, 2013-Ohio-2031, at ¶38; State v. McCann, 4th Dist. No. 10CA12, 2011-Ohio-3339, at ¶18.

{¶ 7} We also reviewed the transcript of the October 24, 2012 change of plea hearing and find nothing amiss. The trial court appears to have complied with Crim.R. 11(C)(2) and we find no error with the sentence that the trial court imposed.

{¶ 8} Generally, appellate review of criminal sentences involves a two step process. State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; State v. Pearson, 4th Dist. No. 10CA17, 2011-Ohio-5910, at ¶5. First, we must determine if a trial court complied with all the applicable rules and statutes. Kalish , supra, at ¶26; State v. Marino, 4th Dist. No. 11CA36, 2013-Ohio-113, at ¶6. If it did, we then review the court's decision under the abuse of discretion standard. Kalish , supra, at ¶26; State v. Adams, 4th Dist. No. 10CA3391, 2012-Ohio-255, at ¶4. We see no deviation from the applicable statutes and rules. As aforesaid, the trial court imposed the minimum allowable sentence. We also find no abuse of discretion. This is particularly true in view of the fact that the court imposed a sentence two years less than the state's recommendation set forth in the plea agreement.

{¶ 9} For all these reasons, we find no arguable error in the proceedings and, because we agree that the appeal is wholly frivolous, we hereby (1) grant appellate counsel's motion to withdraw, and (2) affirm the trial court's judgment.

JUDGMENT ...


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