Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2015 CR 1185 A.
Plaintiff-Appellee Attorney Paul Gains Mahoning County
Prosecutor Attorney Ralph Rivera Assistant Prosecutor
Defendant-Appellant Attorney Thomas Lyden
JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol
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.
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.
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.
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.
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.
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.
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.
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 ...