Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Stephen L. Miles
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
T. GALLAGHER, JUDGE.
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.
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
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.
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 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.
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.
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.