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State v. Torres

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 25, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EMILIANO Z. TORRES DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604093-A

         DISMISSED.

          ATTORNEY FOR APPELLANT Patricia J. Smith Emiliano Torres Inmate.

          ATTORNEY FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor The Justice Center.

          BEFORE: Celebrezze, J., Keough, A.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} Appellant, Emiliano Z. Torres, appeals from guilty pleas and an agreed sentence imposed by the trial court. His attorney, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967), filed a motion to withdraw as counsel and dismiss the appeal. After a thorough examination of the record, this court grants the motion to withdraw and dismisses the appeal.

         I. Factual and Procedural History

         {¶2} Appellant pled guilty to amended charges of gross sexual imposition, felonious assault, and domestic violence. The plea deal included an agreed three-year sentence. A sentencing hearing was conducted on August 22, 2016. There, the trial court imposed the agreed sentence by doing the following: the trial court merged Count 1, gross sexual imposition; and Count 3, felonious assault; imposed a three-year sentence on Count 3; and imposed an 180-day sentence on the remaining count of domestic violence in Count 4. However, the journal entry of sentence entered August 29, 2016, indicates that the trial court imposed an 18-month sentence on Count 1, [1] a three-year sentence on Count 3, and an 180-day sentence on Count 4. The court also classified appellant as a Tier I sex offender.[2] Appellant then filed a notice of appeal.

         II. Law and Analysis

         {¶3} Appellant's counsel filed motions to withdraw and dismiss the appeal pursuant to Anders and this court's Loc.R. 16(C). Appellant was provided with notice and an opportunity to submit his own brief, which he did not. Pursuant to that rule, this court reviews the motion, brief in support, and the entire record and determines whether any arguably meritorious issue exists. If this court determines there are no meritorious issues, and the appeal is "wholly frivolous, " we may dismiss the appeal. If this court finds the existence of a meritorious issue, we must afford the appellant assistance of counsel before deciding the merits of the case. Anders at 744.

         {¶4} Here, there is no meritorious issue to argue. Appellant's counsel submitted a brief in support that outlined the trial court's compliance with Crim.R. 11 during the plea colloquy, and the fact that the court imposed an agreed sentence that cannot be appealed pursuant to R.C. 2953.08(D)(1). This court's own independent review indicates that appellant entered guilty pleas after a thorough plea colloquy and the trial court imposed an agreed prison sentence, which included an agreement as to allied offenses, that was authorized by law, and from which appellant cannot appeal.

         {¶5} Therefore, this court finds no meritorious issue is present based on the record, and that an appeal would be wholly frivolous. Counsel's request to withdraw is granted, and the appeal is dismissed.

         {¶6} ...


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