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State v. Gilbert

Court of Appeals of Ohio, Sixth District, Sandusky

June 23, 2017

State of Ohio Appellee
v.
Glen A. Gilbert Appellant

         Trial Court No. 16 CR 530

          Brett A. Klimkowsky, for appellant.

          DECISION AND JUDGMENT

          MAYLE, J.

         Introduction

         {¶ 1} This is an appeal of a September 29, 2016 judgment of the Sandusky County Court of Common Pleas. Defendant-appellant, Glen Gilbert, pled guilty to one count of pandering obscenity involving a minor, in violation of R.C. 2907.32(1)(A)(2), a felony in the second degree. The trial court sentenced Gilbert to 48 months in prison, and he appealed.

         {¶ 2} Gilbert's appointed counsel has submitted a request to withdraw from the case, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel asserts that he has reviewed the entire record on appeal, and he is unable to find any nonfrivolous issues for our review. He requests that he be allowed to withdraw from the case. Counsel advised Gilbert of his right to file his own brief

         {¶ 3} Neither Gilbert nor the state, the appellee herein, filed an appellate brief

         Counsel's Request to Withdraw

         {¶ 4} The procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue is set forth in Anders and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines it to be wholly frivolous he should so advise the court and request permission to withdraw. Anders at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish his client with a copy of the brief, request to withdraw, and allow the client sufficient time to raise any matters that the client chooses. Id. Once these requirements have been satisfied, the appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements or it may proceed to a decision on the merits if state law so requires. Id

         {¶ 5} In his brief, appointed counsel fails to identify "anything in the record that could arguably support the appeal, " as required by Anders. Counsel maintains that he "can find no error by the trial court prejudicial to the rights of [Gilbert] which may be argued in a nonfrivolous manner on appeal."

         {¶ 6} This court, as required under Anders, has undertaken our own examination of the record to determine whether any issue of arguable merit is presented for appeal. Because we find that a potential error has arguable merit, we appoint new appellate counsel for the purpose of briefing and presenting that issue, and any others, for our review.

         Facts and Procedural History

         {¶ 7} Appellant was indicted on four criminal counts: pandering obscenity involving a minor, in violation of R.C. 2907.32(1)(A)(2), a second-degree felony; importuning, in violation of R.C. 2907.07(D)(2), a fifth-degree felony; attempted unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A) and 2923.02, a fourth-degree felony; and disseminating matter harmful to a juvenile in violation of R.C. 2907.31(A)(1), a fifth-degree felony.

         {¶ 8} The charges stem from a personal advertisement Gilbert placed on "Craigslist" and the resulting online conversation he had with someone whom he believed was a 13-year-old girl, but was actually a Bellevue police officer posing as a young girl. Gilbert sent four pornographic videos, including child pornography, to "the girl" and arranged to meet her in a park for ...


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