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State v. Messner

Court of Appeals of Ohio, Seventh District

September 19, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MATTHEW MESSNER, DEFENDANT-APPELLANT.

Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 10CR1324.

For Plaintiff-Appellee Paul Gains Prosecutor Ralph Rivera Assistant Prosecutor.

For Defendant-Appellant Attorney Katherine E. Rudzik.

JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Cheryl L. Waite

OPINION

DONOFRIO, J.

(¶1} Defendant-appellant, Matthew Messner, appeals from a Mahoning County Common Pleas Court judgment convicting him of aggravated burglary, following his guilty plea.

(¶2} On December 22, 2010, a Mahoning County Grand Jury indicted appellant on one count of aggravated burglary, a first-degree felony in violation of R.C. 2911.01 (A)(1)(C). Appellant entered a not guilty plea.

(¶3} On April 30, 2012, appellant changed his plea to guilty. In exchange for his plea, plaintiff-appellee, the State of Ohio, agreed to recommend community control if appellant provided documentation of employment and treatment. If appellant did not provide the state with such documentation, then the state agreed to stand silent at sentencing. The trial court accepted appellant's plea and found him guilty.

(¶4} Appellant produced the necessary documentation of his employment and drug addiction treatment. So at sentencing, the state recommended community control. The trial court, however, sentenced appellant to five years in prison.

(¶5} Appellant filed a timely notice of appeal on July 11, 2012.

(¶6} Appellant's appointed counsel has filed a no merit brief and request to withdraw pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970). In Toney, this court set out the procedure to be used when appointed counsel finds that an indigent criminal defendant's appeal is frivolous.

(¶7} The procedure set out in Toney at the syllabus, is as follows:

3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent's appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.
4. Court-appointed counsel's conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time ...

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