Court of Appeals of Ohio, Seventh District, Belmont
Appeal from the Court of Common Pleas of Belmont County, Ohio
Case No. 15 CR 217
Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County
Prosecutor Atty. Kevin Flanagan Chief Assistant Prosecuting
Defendant-Appellant: Atty. Zachary T. Zilai, Arturo Diaz
Hernandez, Pro se
Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb
Appellant Arturo Diaz Hernandez appeals from his sentence
following a Crim.R. 11 plea agreement he entered into in the
Belmont County Common Pleas Court. Appellant's counsel
filed a no merit brief requesting leave to withdraw. A review
of the record reveals there are no appealable issues. Thus,
Appellant's appointed counsel's motion to withdraw is
granted and the judgment of the trial court is affirmed.
and Procedural History
The following facts were derived from the record and are not
in dispute. On September 12, 2015 at approximately 6:30 p.m.,
Appellant attempted to pass three cars on a two-lane highway
in a no-passing zone. Appellant moved into the lane with
oncoming traffic to begin attempting to pass the cars, and
ultimately struck a vehicle in the oncoming lane head-on.
Appellant stopped his vehicle and approached the other
wrecked car, but then fled on foot. He was later discovered
lying in a ditch approximately one-half mile from the crash
site. At the scene of the crash, police discovered a few full
bottles of beer and several empty ones in Appellant's
vehicle. The other vehicle had four passengers who sustained
various serious injuries. The driver, Avery Coss, age 30,
suffered a broken leg. Front passenger Amanda Woods, age 22,
suffered a collapsed lung, lacerated spleen and broken right
wrist. Passenger A.C., age 8, suffered lacerations to his
face and a contusion on his lung and passenger J.W., age 4,
suffered abdominal contusions.
After being discovered by police, Appellant was taken to the
St. Clairsville, Ohio Police Department and was given a
breath test. Appellant tested at .238 BAC, or nearly three
times the legal alcohol limit. He was charged with three
counts of aggravated vehicular assault, in violation of R.C.
2903.08(A)(1)(a) and (B)(1)(a); driving while under the
influence, in violation of R.C. 4511.19(A)(1)(h); and
operating a motor vehicle without a valid operator's
license, in violation of R.C. 4510.11(B).
On February 1, 2016, Appellant entered a guilty plea. Through
a certified interpreter, Appellant indicated that he fully
understood his plea agreement, had been fully informed of
both his constitutional and nonconstitutional rights, and
that he was entering his plea voluntarily. (2/1/16 Tr., pp.
5-15.) Appellant pleaded to one count of aggravated vehicular
assault, a felony of the second degree, in violation of R.C.
2903.08(A)(1); and one count of operating a vehicle while
under the influence, in violation of R.C. 4511.19(A)(1)(h).
The remaining counts in the indictment were nolled.
On March 4, 2016, a sentencing hearing was held. Another
certified interpreter was present during the proceedings.
Counsel for Appellant stated that he had reviewed with
Appellant what would happen and advised that he had submitted
a sentencing memorandum requesting a three-year term of
imprisonment. The trial court sentenced Appellant to eight
years of incarceration. Appellant filed this timely appeal.
Appellate counsel seeks to withdraw from representation after
reviewing the record and finding no potentially meritorious
arguments for appeal. This filing of a no merit brief is made
pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.E.2d 493 (1967). This Court has addressed
this no merit brief in State v. Toney, 23 Ohio
App.2d 203, 262 N.E.2d 419 (7th Dist.1970). In
Toney, this Court established the procedure to be
undertaken when appellate counsel wishes to withdraw from a
case based upon a frivolous appeal.
3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the
indigent's appeal is frivolous and that there is no
assignment of error which could be arguably supported on
appeal, he should so advise the appointing court by brief ...