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State v. Green

Court of Appeals of Ohio, Sixth District, Sandusky

January 6, 2017

State of Ohio Appellee
v.
Kalyn R. Green Appellant

         Trial Court No. 15 CR 585

          Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.

          Matthew P. Mundrick, for appellant.

          DECISION AND JUDGMENT

          JENSEN, P.J.

         {¶ 1} This is an appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Defendant-appellant, Kalyn R. Green, appeals the February 5, 2016 judgment of the Sandusky County Court of Common Pleas, convicting her of aggravated trafficking in drugs and illegal assembly of chemicals for manufacture of drugs, and sentencing her to an aggregate prison term of five years. For the reasons that follow, we affirm the trial court's judgment, and we grant counsel's accompanying motion to withdraw as counsel for Green.

         I. Background

         {¶ 2} On July 2, 2015, defendant-appellant, Kalyn R. Green, was indicted on two counts of aggravated trafficking in drugs, illegal assembly of chemicals for manufacture of drugs, illegal manufacture of drugs, two counts of endangering children, and engaging in a pattern of corrupt activity. On February 5, 2016, Green entered a plea of guilty to one count of aggravated trafficking in drugs, a violation of R.C. 2925.03(A)(1)(C)(1)(b), a third-degree felony (Count 2), and one count of illegal assembly of chemicals for manufacture of drugs, a violation of R.C. 2925.041(A), a second-degree felony (Count 3). The remaining charges were dismissed. Green was sentenced on February 5, 2016, to a prison term of 24 months on Count 2 and three years on Count 3, to be served consecutively to each other but concurrently with a sentence imposed by the Seneca County Court of Common Pleas. She was also sentenced to three years' postrelease control and a one-year driver's license suspension. Her conviction and sentence were memorialized in a judgment entry journalized on February 5, 2016.[1]

         {¶ 3} Appellate counsel was appointed for Green, and a notice of appeal was timely filed. After reviewing the record, however, counsel has determined the appeal to be wholly frivolous and requests permission to withdraw as counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

         {¶ 4} Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978), set forth the procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines it to be wholly frivolous, he should so advise the court and request permission to withdraw. Anders, 386 U.S. at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Furthermore, counsel must furnish his client with a copy of the brief and request to withdraw from representation, and allow the client sufficient time to raise any matters that he or she chooses. Id.

         {¶ 5} Once these requirements are satisfied, 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 it may proceed to a decision on the merits if state law so requires. Id.

          {¶ 6} Here, counsel has identified two potential assignments of error:

(1)[W]hether the trial court erred when it failed to reasonably make statutorily necessary findings before imposing consecutive sentences and instead adopted the prior sentencing that the court had vacated; and
(2)[W]hether the trial court erred by failing to comply with Ohio Crim.R. 11 in accepting appellant's plea.

         II. ...


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