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State v. Shiley

Court of Appeals of Ohio, Seventh District, Mahoning

December 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BAMBI L. SHILEY DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16 CR 167, Affirmed in part. Sentence Vacated in

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Desirae DiPiero

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

          OPINION

          WAITE, J.

         {¶1} Appellant Bambi L. Shiley appeals from her convictions and sentences pursuant to a Crim.R. 11 plea agreement entered into the Mahoning County Common Pleas Court for one count of endangering children. Appellant's counsel filed a no merit brief requesting leave to withdraw. A complete review of the case does reveal an appealable issue. Appellant's convictions are affirmed. However, the trial court improperly imposed a mandatory term of postrelease control. As such, Appellant's sentence is vacated in part and remanded for purposes of properly imposing postrelease control. Appointed counsel's motion to withdraw is granted.

         Factual and Procedural History

         {¶2} On February 25, 2016, Appellant was indicted on three counts of endangering children, a felony of the third degree. The indictment contained a typographical error listing the code section as R.C. 2919.22(A), (E)(2)(e). The error was corrected to reflect the correct code section, R.C. 2919.22(A), (E)(2)(c), in an April 12, 2016 judgment entry. The trial court found that the error did not change the nature of the offense or the offense level.

         {¶3} Appellant entered into a Crim.R. 11 plea agreement with the state. Appellant agreed to plead guilty to one count of endangering children. The remaining counts were dismissed. The state agreed to recommend a sentence of twelve months of incarceration. On April 11, 2016, the trial court held a plea hearing. After entering into a Crim.R. 11 colloquy with Appellant, the court accepted her guilty plea. The state recommended a sentence of twelve months of incarceration. Appellant did not object to the state's recommendation.

          {¶4} On July 14, 2016, the trial court accepted the state's recommendation and sentenced Appellant to twelve months of incarceration and ordered her to pay the costs of prosecution. The court additionally imposed a mandatory three-year term of postrelease control. The court credited Appellant with 121 days of jail time served. This timely appeal follows.

         No Merit Brief

         {¶5} Appellant's counsel seeks to withdraw from the appeal after finding no meritorious arguments for appeal. This filing is known as a no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). In this district, this filing is also referred to as a Toney brief. See State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).

         {¶6} In Toney, we established the procedure to be used when appellate counsel wishes to withdraw from a case deemed 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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