Court of Appeals of Ohio, Seventh District, Belmont
Appeal from the Court Of Common Pleas of Belmont County, Ohio
Case No. 16 CR 299
Plaintiff-Appellee: No Brief Filed
Defendant-Appellant: Atty. John D. Falgiani, Jr.
JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary
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.
of the Case
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.
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.
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.
Appellant timely appealed his convictions. After reviewing
the record, appointed counsel filed an Anders brief
and moved to withdraw as counsel.
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
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
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
Id. at syllabus.
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.
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.
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, ¶ 19-21. The trial court must strictly comply with
these requirements; if it fails to strictly ...