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State v. Cologie

Court of Appeals of Ohio, Seventh District, Belmont

December 22, 2017


         Criminal Appeal from the Court Of Common Pleas of Belmont County, Ohio Case No. 16 CR 299

          For Plaintiff-Appellee: No Brief Filed

          For Defendant-Appellant: Atty. John D. Falgiani, Jr.

          JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro


          ROBB, P.J.

         {¶1} Defendant-Appellant Joshua Cologie appeals from his convictions entered in Belmont County Common Pleas Court for two counts of gross sexual imposition. Appellant's counsel filed an Anders brief and requested leave to withdraw. A review of the case file and brief reveals there is no merit with this appeal. Accordingly, appointed counsel's motion to withdraw is granted, and the convictions are affirmed.

         Statement of the Case

         {¶2} Appellant was indicted on December 7, 2016 for three counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), third-degree felonies. The indictment alleged over a 15 month period Appellant had sexual contact with the victim who was less than thirteen years of age.

         {¶3} A plea agreement was reached by the state and Appellant. The state agreed to dismiss count three of the indictment and Appellant agreed to plead guilty to counts one and two of the indictment. 1/20/17 J.E. After the plea colloquy, the trial court accepted the guilty plea and dismissed count three of the indictment. 1/20/17 J.E.; 1/19/17 Plea Tr. 12.

         {¶4} Sentencing occurred on February 6, 2017. Appellant received an aggregate sentence of 120 months; he received 60 months for each gross sexual imposition conviction and those sentences were ordered to be served consecutively. 2/7/17 J.E. In addition to the prison term, Appellant was sentenced to 5 years of postrelease control and he was advised of the consequences for violating post-release control. 2/7/17 J.E. Appellant was designated a Tier II sex offender and informed of his reporting requirements. 2/7/17 J.E.

         {¶5} Appellant timely appealed his convictions. After reviewing the record, appointed counsel filed an Anders brief and moved to withdraw as counsel.


         {¶6} When appellate counsel seeks to withdraw and discloses there are no meritorious arguments for appeal, the filing is known as an Anders brief or a no-merit brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In this district, it is also called a Toney brief. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).

         {¶7} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent's appeal is frivolous:

3. Where 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 raise any points that he chooses, pro se.
5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
* * *
7. Where the Court of Appeals determines that an indigent's appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.

Id. at syllabus.

         {¶8} The Anders brief was filed by appellate counsel on June 2, 2017. In that brief, appellate counsel identified three potential issues for appeal and determined there were no reasonable, arguable issues. Appellant was notified of appellate counsel's Anders brief and was granted 30 days to file his own written brief. 7/21/17 J.E. Appellant has not filed a brief and the time for filing a brief has passed. Accordingly, our analysis will proceed with an independent examination of the record to determine if the appeal is frivolous. Our review will encompass the following issues: 1) whether the plea was entered knowingly, intelligently, and voluntarily; 2) whether the sentence complies with the law; and 3) whether Appellant received ineffective assistance of counsel. These are the three issues counsel identified as potentially appealable.


         {¶9} Crim.R. 11(C) provides that a trial court must make certain advisements prior to accepting a defendant's guilty plea to ensure the plea is entered into knowingly, intelligently, and voluntarily. These advisements are divided into constitutional rights and nonconstitutional rights.

         {¶10} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses against him; 3) the compulsory process for obtaining witnesses in his favor; 4) the state must prove the defendant's guilt beyond a reasonable doubt at trial; and 5) the defendant cannot be compelled to testify against himself. Crim.R. 11(C)(2)(c); State v. Veney,120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ΒΆ 19-21. The trial court must strictly comply with these requirements; if it fails to strictly ...

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