Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Russell S. Bensing
Listed Tony L. Davis, Jr., pro se
ATTORNEY FOR APPELLEE Michael C. O'Malley Cuyahoga County
BEFORE: Stewart, P.J., Boyle, J., and Jones, J.
JOURNAL ENTRY AND OPINION
J. STEWART, P.J.
Defendant-appellant Tony L. Davis, Jr. pleaded guilty to
aggravated vehicular homicide, in violation of R.C.
2903.06(A)(1)(a), with an enhancement for driving with a
suspended license, making the offense a first-degree felony.
Davis also pleaded guilty to driving while under the
influence, in violation of R.C. 4511.19(A)(1)(f), a
first-degree misdemeanor, with a specification for a previous
driving while under the influence conviction. The court
sentenced Davis to nine years in prison for the aggravated
vehicular homicide and 20 days in prison for driving while
under the influence, to be served concurrently. It also
sentenced him to a mandatory five-year term of postrelease
control and various penalties relating to his drivers
The court appointed Davis new counsel for purposes of appeal.
Appellate counsel now seeks permission to withdraw from the
case pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Davis can
raise no nonfrivolous issues on appeal. Davis has had the
opportunity to file his own merit brief, but has not done so.
Consistent with Anders and Loc.App.R. 16(C) of the
Eighth District Court of Appeals, counsel filed a no-merit
brief in addition to his motion to withdraw as
counsel.Counsel's no-merit brief raises two
possible assignments of error, challenging the nature of
Davis's plea and the sentence the court imposed, and
explains why both would be frivolous. We evaluate
counsel's arguments in light of the record before us.
State v. Taylor, 8th Dist. Cuyahoga No. 101368,
2015-Ohio-420, ¶ 20.
Counsel suggests that Davis could file an assignment of error
challenging the validity of his guilty plea on three separate
grounds before concluding that such a challenge would be
meritless. Counsel posits that Davis could argue that the
trial court failed to advise him of his constitutional and
nonconstitutional rights before accepting his guilty plea.
Counsel indicates that the record rebuts this assertion,
however, and shows that the court performed all of its
obligations in this regard by advising Davis of his various
rights: to be tried by jury, to confront the witnesses
against him, to subpoena his own witnesses, that the state
must prove his guilt beyond a reasonable doubt, and to be
advised of the nature of the charges, penalties he faced, and
that his guilty plea would constitute a complete admission of
guilt. Our review of the record confirms that counsel is
Next, counsel addresses and disposes of a challenge to
Davis's plea on grounds that he did not comprehend the
proceedings. Counsel notes that Davis affirmatively answered
"yes" to every question the court posed regarding
his rights and his possible sentence. Counsel states that
there is "absolutely nothing" in the record
indicating that Davis was less than fully aware of the nature
and consequences of pleading guilty. We agree.
Counsel finally proposes that Davis might argue that his plea
is defective on grounds of ineffective assistance of counsel,
but shows how such argument would be without merit in light
of the record. Davis pronounced that he was satisfied with
his representation and that no threat, promise, or other
inducement was made that caused him to plead guilty. We
agree, and pursuant to Anders, find that no
nonfrivolous argument lies in challenging Davis's guilty
Counsel also suggests that Davis could challenge his sentence
as being contrary to law or clearly and convincingly
unsupported by the record; however, counsel asserts that such
a challenge would also be meritless. A defendant does not
have a constitutional right to appellate review of his or her
criminal sentence; "the only right to appeal is the one
provided by statute." State v. Akins, 8th Dist.
Cuyahoga No. 99478, 2013-Ohio-5023, ¶ 12. Because
Davis's nine-year sentence for a felony of the first
degree was not a maximum sentence, pursuant to R.C.
2953.08(A), the only potentially viable avenue of review here
would be arguing that the sentence is contrary to law. There
is no question that Davis's sentence is within the
statutory range and that the court stated it gave appropriate
consideration to the required sentencing factors. See
State v. Ongert, 8th Dist. Cuyahoga No. 103208,
2016-Ohio-1543, ¶ 12 ("As long as a trial court
considered all sentencing factors, the sentence is not
contrary to law and the appellate inquiry ends.").
Moreover, counsel suggests that in light of the record, such
a challenge would be frivolous even under the broader review
provided in State v. Jones, 2016-Ohio-7702, 76
N.E.3d 596 (8th Dist.). We agree with counsel that this
potential assignment of error would be frivolous under
Anders. We therefore dismiss this appeal and grant
counsel's motion to withdraw.