Court of Appeals of Ohio, Sixth District, Sandusky
Court No. 15 CR 996
A. Klimkowsky, for appellant.
DECISION AND JUDGMENT
1} This is an appeal brought by appellant from the
judgment of the Sandusky County Court of Common Pleas. In
this case, the court accepted appellant's plea of guilty
to the offense of theft, a violation of R.C. 2913.02(A)(1), a
felony of the fifth degree. The state recommended the
imposition of no more than 60 days in the local jail and
restitution to the victim, Fremont VFW, in the amount of
2} Appellant was sentenced to serve a period of
incarceration of 12 months in prison. Appellant was also
found to be reasonably expected to have the ability to pay
all or part of the costs of assigned counsel and prosecution
pursuant to R.C. 2941.51(D) and was therefore ordered to pay
3} Appointed counsel has filed a brief and requested
leave to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). Under Anders, if, after a conscientious
examination of the case, counsel concludes the appeal to be
wholly frivolous, he should so advise the court and request
permission to withdraw. Id. at 744. This request
must be accompanied by a brief identifying anything in the
record that could arguably support the appeal. Id.
In addition, counsel must provide appellant with a copy of
the brief and request to withdraw, and allow appellant
sufficient time to raise any additional matters. Id.
Once these requirements are satisfied, the appellate court is
required to conduct an independent examination of the
proceedings below to determine if the appeal is indeed
frivolous. Id. If it so finds, the appellate court
may grant counsel's request to withdraw, and decide the
appeal without violating any constitutional requirements.
4} In this case, appellant's appointed counsel
has satisfied the requirements set forth in Anders,
5} Accordingly, this court shall proceed with an
examination of the potential assignments of error set forth
by counsel. We have reviewed and considered the entire record
from below including the transcript of all proceedings and
journal entries and original papers from the Sandusky County
Court of Common Pleas as well as the brief filed by counsel.
Upon this review we will determine if this appeal lacks merit
and is, therefore, wholly frivolous.
6} At the outset, we note that appellee has not
filed a responsive brief and appellant herself has not filed
a brief on her own behalf.
7} Counsel has not identified any potential
assignments of error but has outlined his analysis and review
of the record that included examination of the plea, the
sentence and effectiveness of trial counsel.
8} A guilty or no contest plea must be made
knowingly, intelligently, and voluntarily to be valid under
both the United States and Ohio Constitutions. Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969); State v. Engle, 74 Ohio St.3d 525, 527, 660
N.E.2d 450 (1996). Therefore, before accepting a plea of
guilty or no contest to a felony offense, Crim.R. 11(C)(2)
requires that a trial court conduct a hearing with a personal
colloquy with the defendant, make specific determinations and
give specific warnings required by Crim.R. 11(C)(2)(a) and
(b), and notify the defendant of the constitutional rights
listed in Crim.R. 11(C)(2)(c) that he would be waiving.
State v. Acosta, 6th Dist No. WD-15-066,
9} The transcript of the March 21, 2017 plea hearing
establishes that the trial court engaged in a full and
complete colloquy with appellant concerning her plea as
required by Crim.R. 11(C) (2). Appellant understood the
nature of her guilty plea and answered affirmatively when
advised of each of her constitutional rights that she would
be forfeiting by not proceeding to trial. She also
acknowledged that the court was not bound by the
recommendation of the prosecution concerning the 60 day jail
sentence and that she could be sentenced up to a maximum
period of incarceration of 12 months in prison and be
subjected to as much as a $2, 500 fine and costs as well as
restitution in the amount of $175, 000. She was also
appropriately notified of her postrelease control. Based upon
this review, we agree with counsel and find no error in the
plea before the trial court.
10} Appellant was sentenced to serve a period of 12
months imprisonment, which is the maximum period of
incarceration for a fifth-degree felony pursuant to R.C.
2929.14(A)(5). As such, although entitled to an appeal as of
right under R.C. 2953.08(A)(1), her sentence is reviewed
under R.C. 2953.08(G), which compels appellate courts to
modify or vacate sentences if they find by clear and
convincing evidence that the record does not support any
relevant findings under division (B) or (D) of section
2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code.
11} Clear and convincing evidence is that measure or
degree of proof which is more than a mere "preponderance
of the evidence, " but not to the extent of such
certainty as is required "beyond a reasonable
doubt" in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to
the facts ...