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State v. Barker

Court of Appeals of Ohio, Sixth District

July 15, 2013

State of Ohio, Appellee
v.
Thomas J. Barker, Appellant

Trial Court No. 11 CR 333

Karin L. Coble, for appellant.

DECISION AND JUDGMENT

SINGER, P.J.

{¶1} Appellant appeals a judgment of conviction for attempted rape entered on a finding of guilty after a no contest plea in the Sandusky County Court of Common Pleas.

{¶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). Appellee has not filed a brief.

{¶3} 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

{¶4} 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 Appellant has not filed an additional brief Accordingly, this court shall proceed to examine the potential assignments of error set forth by counsel and the entire record below to determine whether this appeal lacks merit, deeming it wholly frivolous.

{¶5} Appellant and another man were named in indictments by a Sandusky County grand jury on April 6, 2011. Appellant was charged with four counts of rape. The charges came from allegations that the two men forcibly engaged in sexual conduct with a 16 year-old girl at a March 20, 2011 party in Genoa, Ohio.

{¶6} After their arrest, both men were interviewed by a Sandusky County Sheriffs deputy. Appellant initially denied having sex with the victim, but later in the interview admitted having sexual intercourse with the girl, but claimed it was consensual.

{¶7} Appellant pled not guilty to the indictment and moved to suppress the recording of his interview with the deputy. When, after a hearing, the court denied appellant's motion to suppress, he agreed to plead no contest to one count of attempted rape. The state agreed to dismiss the remaining charges and recommend a five-year term of incarceration.

{¶8} The trial court accepted the plea, found appellant guilty of attempted rape and, following a presentence investigation, sentenced appellant to a five-year term of incarceration. The court also adjudicated him a Tier III sex offender. This appeal followed.

{¶9} Pursuant to Anders, appointed appellate counsel sets forth the following five proposed assignments of error which she represents she has considered and found without merit:

I. The trial court erred in denying appellant's motion to suppress his statements, in violation of U.S. Const. Art. V and Miranda v. Arizona [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)].
II. The trial court erred in finding appellant guilty upon his plea of no contest and his plea was ...

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