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State v. Hernandez

Court of Appeals of Ohio, Seventh District, Belmont

June 5, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ARTURO DIAZ HERNANDEZ DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 15 CR 217

          For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Kevin Flanagan Chief Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Zachary T. Zilai, Arturo Diaz Hernandez, Pro se

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

          OPINION

          WAITE, J.

         {¶1} 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.

         Factual and Procedural History

         {¶2} 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.

         {¶3} 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).

         {¶4} 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.

         {¶5} 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.

         No Merit Brief

         {¶6} 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 ...

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