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State v. Warren

Court of Appeals of Ohio, Seventh District, Mahoning

May 31, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
WESLEY WARREN, DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CR 1185 A.

          For Plaintiff-Appellee Attorney Paul Gains Mahoning County Prosecutor Attorney Ralph Rivera Assistant Prosecutor

          For Defendant-Appellant Attorney Thomas Lyden

          JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION

          DeGENARO, J.

         {¶1} Defendant-Appellant, Wesley Warren, appeals the trial court judgment convicting him of possession of heroin and sentencing him accordingly. Appointed appellate counsel for Warren has filed a no-merit brief and a request to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970). For the following reasons, we grant counsel's motion to withdraw and affirm the judgment of the trial court.

         {¶2} A grand jury indicted Warren on one count of having weapons under disability, R.C. 2923.13(A)(3)(B), a third-degree felony; and one count of possession of heroin, R.C. 2925.11(A)(C)(6)(a), a fifth-degree felony. He was arraigned, pled not guilty and counsel was appointed. Warren later entered into a Crim.R. 11 plea agreement with the State; Warren agreed to plead guilty to the heroin charge and in exchange the State agreed to dismiss the weapons charge and recommend community control on the heroin charge.

         {¶3} During the plea hearing, the trial court engaged in a colloquy with Warren concerning the rights he would give up by pleading guilty, and ultimately accepted Warren's plea as knowingly, voluntarily and intelligently made and continued sentencing so that a presentence investigation could be prepared.

         {¶4} During sentencing, the State stood by its promise to recommend community control. Defense counsel then argued in favor of a community control sanction, noting that Warren's prior criminal history consisted of mainly fourth and fifth degree felonies such as drug possession. Counsel emphasized that Warren had completed his GED while in a Community Corrections Association program. Counsel conceded that Warren was under a community control sanction when the instant offense was committed. However, he claimed that Warren was merely in the wrong place at the wrong time; he was in a house when a drug raid took place. Counsel said that Warren was employed and clean.

         {¶5} The trial court asked Warren if he had anything to say regarding his sentence and Warren then made a brief statement on his own behalf.

         {¶6} After considering the record, statements made at sentencing, the purposes and principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, the trial court proceeded to sentence Warren as follows: ten months in prison, with jail-time credit for 130 days along with future days in custody while awaiting transportation, a mandatory six-month driver's license suspension, and a discretionary term of post-release control of up to three years.

         Anders Review

         {¶7} An attorney appointed to represent an indigent criminal defendant may seek permission to withdraw if the attorney can show that there is no merit to the appeal. See generally Anders, 386 U.S. 738. To support such a request, appellate counsel is required to undertake a conscientious examination of the case and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support an appeal. Toney, 23 Ohio App.2d at 207. Counsel's motion must then be transmitted to the defendant in order to assert any error pro se. Id. at syllabus. The reviewing court must then decide, after a full examination of the proceedings and counsel's and the defendant's filings, whether the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is granted, new counsel is denied, and the trial court's judgment is affirmed. Id.

         {¶8} Counsel filed a no-merit brief and we granted Warren 30 days to file a pro-se brief, which to date, he has failed to file. In the typical Anders case involving a guilty plea, the only issues that can be reviewed relate to the plea or the sentence. See ...


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