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State v. Gibbs

Court of Appeals of Ohio, Fourth District

September 25, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JUSTIN T. GIBBS, JR., [1] Defendant-Appellant.

APPEARANCES [2]

Steven H. Eckstein, Washington Court House, Ohio, for Appellant.

DECISION AND JUDGMENT ENTRY

MARIE HOOVER, J.

(¶ 1} Justin T. Gibbs (hereinafter "Gibbs") appeals from the sentencing entry of the Washington County Common Pleas Court. After pleading guilty to one count of theft, Gibbs was sentenced to 11 months in prison. Gibbs' appellate counsel has advised us that he has reviewed the record and can discern no meritorious claims on appeal. Appellate counsel has thus moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After independently reviewing the record, we agree a meritorious claim does not exist for appeal. Accordingly, we find this appeal wholly frivolous, grant the request to withdraw, and affirm the judgment of the trial court.

(¶ 2} A Washington County grand jury indicted Gibbs on one count of theft, a fifth degree felony in violation of R.C. 2913.02(A)(1), and one count of misuse of credit cards, a first degree misdemeanor in violation of R.C. 2913.21(B)(2). Gibbs initially entered a plea of not guilty to both counts. Gibbs subsequently entered into a plea agreement with the State of Ohio, wherein he agreed to change his plea to guilty as to the theft charge. In exchange for the guilty plea, the State agreed to dismiss the misuse of credit cards charge and to recommend a sentence of community control. The trial court dismissed the remaining charge, but Gibbs was sentenced to 11 months in prison on the theft charge. Gibbs was subsequently released on bond.

(¶ 3} Although Gibbs has appealed his conviction and sentence, his appellate counsel has filed both a motion to withdraw and an Anders brief.

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. [Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493]. The client should be furnished with a copy of the brief and given time to raise any matters the client chooses. Id. Once these requirements are met, we must fully examine the proceedings below to determine if an arguably meritorious issue exists. Id. If so, we must appoint new counsel and decide the merits of the appeal. Id. If we find the appeal frivolous, we may grant the request to withdraw and dismiss the appeal without violating federal constitutional requirements or may proceed to a decision on the merits if state law so requires. Id.

State v. Lester, 4th Dist. Vinton No. 12CA689, 2013-Ohio-2485, ¶ 3.

(¶ 4} In the case sub judice, Gibbs' counsel has satisfied the requirements of Anders. While Gibbs has not filed a pro se brief, his appellate counsel has identified the following potential assignment of error:

THE RECORD FAILS TO SUPPORT THE IMPOSITION OF AN ELEVEN MONTH SENTENCE FOR THE FELONY OF THE FIFTH DEGREE.

Thus, we will examine appellate counsel's potential assignment of error and the entire record to determine if an arguably meritorious issue exists or if this appeal is wholly frivolous.

(¶ 5} Appellate counsel asserts that the trial court possibly erred when it sentenced Gibbs to 11 months in prison on the fifth degree felony charge of theft. Instead, Gibbs' appellate counsel contends that, perhaps, the trial court should have imposed a lesser sentence.

(¶ 6} The Supreme Court of Ohio has set forth the standard of review on a trial court's imposition of a felony sentence:

[A]ppellate courts must apply a two-step approach when reviewing felony sentences. First, they must examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court's decision in imposing the term of imprisonment is reviewed under the ...

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