Court of Appeals of Ohio, Seventh District, Belmont
Criminal
Appeal from the Court of Common Pleas of Belmont County, Ohio
Case No. 16 CR 224
For
Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County
Prosecutor Atty. J. Kevin Flanagan Assistant Prosecuting
Attorney.
For
Defendant-Appellant: Atty. John D. Falgiani, Jr.
Hon.
Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb,
Judges.
OPINION
WAITE,
J.
{¶1}
Appellant John Richard Phillips appeals a February 8, 2017
Belmont County Common Pleas Court decision finding him guilty
of three counts of burglary. Appellant's counsel filed a
no merit brief requesting leave to withdraw. A complete
review of the case reveals no potentially meritorious issues.
Accordingly, appointed counsel's motion to withdraw is
granted. Appellant's convictions and sentence are
affirmed.
Factual
and Procedural History
{¶2}
On January 24, 2017, a bill of information was presented
charging Appellant with three counts of burglary, a felony of
the third degree in violation of R.C. 2911.12(A)(3). On the
same date, Appellant waived indictment and pleaded guilty to
all counts as charged in accordance with a Crim.R. 11 plea
agreement. The state did not recommend a specific prison
sentence. The state agreed that it would not oppose judicial
release.
{¶3}
Appellant was sentenced to thirty-six months of incarceration
per count which the court ordered to run consecutively, for
an aggregate total of nine years of incarceration. The court
credited Appellant with 85 days of jail time served. The
court also ordered Appellant to pay $1, 885 in restitution.
This timely appeal followed. On September 6, 2017, Appellant
filed a request for modification of his sentence. In light of
this pending appeal, the trial court denied the motion.
No
Merit Brief
{¶4}
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 our 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).
{¶5}
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 and
request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to
withdraw as counsel of record should be transmitted forthwith
to the indigent, and the indigent should be granted time to
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