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State v. Richardson

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 22, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
GREGORY NATHANIEL RICHARDSON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603824-A

          ATTORNEY FOR APPELLANT Stephen L. Miles

          ALSO LISTED Gregory Nathaniel Richardson, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Kristin M. Karkutt Frank Romeo Zeleznikar Assistant Prosecuting Attorneys

          BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, JUDGE.

         {¶1} Defendant-appellant, Gregory Nathaniel Richardson ("Richardson"), filed a notice of appeal of his convictions and sentence following a guilty plea. After reviewing the record, Richardson's appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking leave to withdraw as counsel. After a thorough review of the record, we grant counsel's request to withdraw and dismiss the appeal.

         {¶2} Richardson was charged with one count of rape in violation of R.C. 2907.02(A)(1)(b), one count of attempted rape in violation of R.C. 2923.02 and 2907.02(A)(1)(b), one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), and one count of kidnapping in violation of R.C. 2905.01(A)(4). All counts alleged that the victim was less than ten years of age and included sexually violent predator specifications.

         {¶3} Pursuant to a plea agreement, Richardson pleaded guilty to one count of gross sexual imposition and one count of abduction. The sexually violent predator specifications were deleted, and the state nolled the remaining charges. The trial court merged the two counts, and the state elected to proceed to sentencing on the gross sexual imposition charge, a high tier third-degree felony. The trial court sentenced Richardson to the maximum prison term of five years and classified him a Tier II sex offender.

         {¶4} Richardson, pro se, filed a delayed appeal of the trial court's judgment. At Richardson's request, this court appointed counsel to represent him. Based on the belief that no prejudicial error occurred in the trial court and that any grounds for appeal would be frivolous, Richardson's counsel filed a motion to withdraw pursuant to Anders.

         {¶5} Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978), outline the procedure counsel must follow to withdraw as counsel due to the lack of any meritorious grounds for appeal. In Anders, the United States Supreme Court held that if counsel thoroughly studies the case and conscientiously concludes that an appeal is frivolous, he may advise the court of that fact and request permission to withdraw from the case. Anders at 744. However, counsel's request to withdraw must "be accompanied by a brief referring to anything in the record that might arguably support the [a]ppeal." Id. Counsel must also furnish a copy of the brief to his client with sufficient time to allow the appellant to file his own brief, pro se. Id.

         {¶6} Once these requirements have been satisfied, the appellate court must complete an independent examination of the trial court proceedings to decide whether the appeal is "wholly frivolous." Id.; Loc.App.R. 16(C). If the appellate court determines the appeal is frivolous, it may grant counsel's request to withdraw and address the merits of the case without affording the appellant the assistance of counsel. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978); State v. Duran, 4th Dist. Ross No. 06CA2919, 2007-Ohio-2743, ¶ 7. If, however, the court finds the existence of meritorious issues, it must afford the appellant assistance of counsel before deciding the merits of the case. Id.

         {¶7} Although Richardson's counsel asserts that an appeal in this case is "wholly frivolous, " he presents two potential issues for review; the court's Crim.R. 11 plea colloquy and the imposition of the maximum prison sentence.

         A. The ...


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