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State v. Justen

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CLARK JUSTEN DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610349-A

          ATTORNEY FOR APPELLANT Kimberly K. Yoder Kimberly K. Yoder Company, L.P.A.

          APPELLANT Clark Justen, pro se Inmate No. A693700 Lake Erie Correctional Institution

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Margaret Kane Assistant County Prosecutor The Justice Center,

          BEFORE: Blackmon, J., Kilbane, P.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE

         {¶1} Following a guilty plea, appellant Clark Justen ("Justen") was convicted of aggravated vehicular homicide, and aggravated vehicular assault in connection with a 2016 collision. He filed a pro se notice of appeal, and counsel was appointed for him. Counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After holding the motion in abeyance to give Justen an opportunity to file a pro se brief, and following our own independent review of the record and pro se brief, this court grants appointed counsel's motion to withdraw, and we dismiss the appeal.

         Factual and Procedural History

         {¶2} On October 1, 2016, Justen was involved in a motor vehicle collision that resulted in the death of Tanisha Matthews and injuries to Asia Matthews. He was subsequently indicted for two counts of aggravated vehicular homicide (Counts 1 and 2), aggravated vehicular assault (Counts 3 and 4), OVI (Count 5), drug possession (Count 6), failure to stop after an accident involving a fatality (Count 7), and improperly transporting a loaded firearm while intoxicated (Count 8).

         {¶3} Justen pled not guilty. He later entered into a plea agreement with the state whereby he pled guilty to second-degree felony aggravated vehicular homicide (Count 1), aggravated vehicular assault (Count 3), OVI (Count 5), drug possession (Count 6), failure to stop after an accident involving a fatality (Count 7), and improperly transporting a loaded firearm while intoxicated (Count 8). One count of aggravated vehicular homicide and one count of aggravated vehicular assault (Counts 2 and 4) were dismissed.

         {¶4} The trial court subsequently merged Counts 1 and 5 and the state elected to sentence Justen on Count 1. The court imposed an eight-year term and a lifetime license suspension for aggravated vehicular homicide (Count 1), together with concurrent terms of 36 months for aggravated vehicular assault (Count 3), 12 months for drug possession (Count 6), 12 months for failing to stop after a traffic accident involving a fatality (Count 7), 12 months for improperly transporting a firearm (Count 8).

         Anders Standard and Potential Issues for Review

         {¶5} In Anders, the United States Supreme Court held that if appointed counsel, after a conscientious examination of the case, determines the appeal to be wholly frivolous, he or she should advise the court of that fact and request permission to withdraw. Anders at 744. This request, however, must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Further, counsel must also furnish the client with a copy of the brief and allow the client sufficient time to file his or her own brief, pro se. Id.

         {¶6} Once the appellant's counsel satisfies these requirements, the appellate court "then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." Id. If the appellate court determines that an appeal would be "wholly frivolous, " i.e., that there are no appealable issues of arguable merit, "it may grant counsel's request to withdraw and dismiss the appeal * * *." Id., see also Loc.App.R. 16(C). If, however, the court finds "any of the legal points arguable on their merits, " it must afford the appellant assistance of counsel to argue the appeal before deciding the merits. Anders at 744; Loc.App.R. 16(C).

         {¶7} In this case, appointed counsel indicates that the trial court engaged in the required Crim.R. 11 colloquy. Counsel also indicates that the eight-year sentence on Count 1, although a maximum term, was ordered to be served concurrently to the other sentences and was not clearly and convincingly contrary to law. However, appellate counsel identified the following potential assigned error:

The trial court erred in imposing a maximum [eight year] prison term upon [Appellant for aggravated ...

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