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State v. Laraby

Court of Appeals of Ohio, Second District, Montgomery

January 12, 2018

STATE OF OHIO Plaintiff-Appellee
JASON R. LARABY, Defendant-Appellant

         Trial Court Case No. 2016-CR-1223 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

          CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Kettering, Ohio 45419 Attorney for Defendant-Appellant


          TUCKER, J.

          {¶ 1} Defendant-appellant Jason Laraby was indicted on June 8, 2016 on one count of Felonious Assault (serious physical harm) in violation of R.C. 2903.11(A)(1). Laraby, on November 29, 2016, appeared before the trial court at which time he, in open court, signed a waiver of his right to a jury trial with the waiver being filed on December 2, 2016. The trial court, prior to Laraby's execution of the waiver, engaged him in a discussion about his right to a jury trial and confirmed that he desired to give up this right. The trial court, in addition, confirmed with Laraby's counsel that Laraby and he had discussed the arguments for and against a jury waiver.

         {¶ 2} Laraby, on November 11, 2016, filed a motion to suppress statements he made to Huber Heights Police Officer Scott Short. The trial court did not conduct a pretrial suppression hearing regarding Laraby's statements to Scott, but at trial the State did not elicit these statements. However, the trial court, though it does not appear that a motion was filed, did, during the bench trial, conduct a suppression hearing regarding statements Laraby made to Dayton Detective Michael Deborde. The trial court did not issue a separate ruling concerning these statements.

         {¶ 3} The trial court conducted a bench trial on December 12, 2016 with the trial court, upon completion of the trial, taking the case under advisement. Laraby, on December 16, 2016, filed a written closing argument. The trial court, on December 21, 2016, announced its decision finding Laraby guilty of the one count of felonious assault. The trial court stated the following: "having reviewed all of the exhibits and having reviewed [Laraby's] written closing argument, considering all the evidence, especially the credibility of all the witnesses, the court finds [Laraby] guilty of felonious assault." The trial court ordered the preparation of a Presentence Investigation Report (PSI) and indicated that sentencing would occur on January 3, 2017. The trial court's oral pronouncement was followed by a written guilty verdict filed on December 23, 2016.

         {¶ 4} The sentencing hearing was conducted on January 17, 2017 instead of January 3. The trial court sentenced Laraby to a four year prison term. The trial court's oral sentencing pronouncement was followed by the filing of a Termination Entry on January 19, 2017. The pending appeal followed with appellate counsel being appointed.

         {¶ 5} Appellate counsel, on August 28, 2017, filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating he had "reviewed the record and transcripts… and does not find any meritorious issues for appeal."

         {¶ 6} Counsel, consistent with his duty under Anders, noted three issues he explored but rejected. The rejected issues are: (1) ineffective assistance of counsel based upon counsel's failure to argue a "proper defense"; (2) the verdict was not supported by sufficient evidence and it was against the manifest weight of the evidence; and (3) the trial court erred by not considering self-defense or the inferior offense of aggravated assault. Counsel concludes the Anders brief by seeking permission to withdraw as counsel.

         {¶ 7} In an order filed on August 31, 2017, we informed Laraby of the Anders filing and further informed him of his right to file a pro se brief within 60 days of August 31. Laraby did not file a brief.

         {¶ 8} We, consistent with our duty under Anders, have carefully reviewed the record with this review including an examination of the potential errors counsel explored but concluded lacked arguable merit. These issues are discussed below.

          {¶ 9} The felonious assault indictment was the result - really the culmination - of an altercation between Tracy Cooper and Laraby on January 3, 2016 at a tavern in Huber Heights, Ohio then called 1470 West. The altercation, which began as a verbal dispute inside the tavern, ended in the tavern's parking lot when Laraby, without dispute, punched Cooper in the face. Laraby, at trial, asserted the complete defense of self-defense. Laraby further asserted that the trial court, assuming self-defense was rejected, should find Laraby guilty of assault, a first degree misdemeanor. Laraby, finally, asserted that the trial court should, at most, find Laraby guilty of aggravated assault, a fourth degree felony.

         {¶ 10} Trial counsel's asserted defenses, based upon the evidence presented, were the potential defenses available to Laraby, and, given this, there is no arguably meritorious claim that trial counsel provided ...

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