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State v. Kocak

Court of Appeals of Ohio, Seventh District, Mahoning

March 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANDREW KOCAK DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 14 CR 915C

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Ryan D. Ingram

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant Andrew Kocak appeals a September 10, 2015 Mahoning County Common Pleas Court judgment entry finding him guilty of violating his probation and reimposing his original sentence. Appellant's counsel filed a no merit brief requesting leave to withdraw. A complete review of the case reveals no appealable issues. Accordingly, appointed counsel's motion to withdraw is granted and the convictions and sentence are affirmed.

         Factual and Procedural History

         {¶2} On September 18, 2014, Appellant was indicted on the following charges: endangering children, a felony of the second degree in violation of R.C. 2919.22(B)(1)(E), (1)(d); corrupting another with drugs, a felony of the fourth degree in violation of R.C. 2925.02(A)(4)(a), (C)(3), felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(1), (D), and two counts of intimidation, felonies of the third degree in violation of R.C. 2921.04(B)(2), (D). Pursuant to a Crim.R. 11 plea agreement, Appellant pleaded guilty to all charges. According to the agreement, Appellant would be eligible for judicial release after six months and the state agreed to stand silent regarding judicial release.

         {¶3} The trial court imposed the following sentence: three years of incarceration for endangering children, eighteen months on the corrupting another with drugs count, three years for felonious assault, and one year of incarceration on each intimidation count. The trial court ordered the sentences to run concurrently and concurrent to Appellant's sentence in case number 13 CR 1172. Hence, the trial court imposed an aggregate sentence of three years of incarceration.

          {¶4} On May 7, 2015, Appellant filed a motion for judicial release; as per the plea agreement, the state stood silent. On July 24, 2015, the trial court held a hearing on the motion. On July 29, 2015, the trial court sustained Appellant's motion and imposed a five-year community control period. The trial court's entry stated that it would reimpose the original sentence if Appellant violated his community control.

         {¶5} On August 3, 2015, the state filed a motion to extend or revoke Appellant's probation. Appellant stipulated to probable cause and was found guilty of a probation violation. On September 10, 2015, the trial court reimposed Appellant's three-year sentence, with credit for 335 days served. This timely appeal followed.

         No Merit Brief

         {¶6} Based on a review of this matter, appellate counsel seeks to withdraw after finding no potentially meritorious arguments for appeal. This filing is known as a no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). In our district, it is referred to as a Toney brief. See State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).

         {¶7} In Toney, this Court established the procedure to be used when appellate counsel wishes to withdraw ...


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