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State v. Gheen

Court of Appeals of Ohio, Seventh District, Belmont

May 10, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
AUSTIN LEE GHEEN, DEFENDANT-APPELLANT.

          Criminal Appeal from Court of Common Pleas of Belmont County, Ohio Case No. 17 CR 60.

          For Plaintiff-Appellee Attorney Daniel P. Fry Prosecutor Attorney Joseph Vavra Assistant Prosecutor

          For Defendant-Appellant Attorney John M. Jurco

          Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Defendant-appellant, Austin Gheen, appeals from a Belmont County Common Pleas Court judgment convicting him of burglary following his guilty plea.

         {¶2} On March 2, 2017, a Belmont County Grand Jury indicted appellant on one count of burglary, a second-degree felony in violation of R.C. 2911.12(A)(1); and one count of theft, a third-degree felony in violation of R.C. 2913.02(A)(1). Appellant initially entered a not guilty plea.

         {¶3} Appellant subsequently entered into a plea agreement with plaintiff-appellee, the State of Ohio. Pursuant to the terms of the plea agreement, the state agreed to amend the indictment so that the burglary charge was reduced from a second-degree felony to a third-degree felony in violation of R.C. 2911.12(A)(3). It also agreed to dismiss the theft count. Appellant then entered a guilty plea to the amended burglary charge.

         {¶4} Next, the trial court held a sentencing hearing. It sentenced appellant to 36 months in prison for the burglary conviction. It also sentenced him to 12 months for his violation of postrelease control in another case. The court ordered appellant to serve the sentences consecutively for a total prison sentence of 48 months. Additionally, the court ordered appellant to pay restitution to the victim.

         {¶5} Appellant filed a timely notice of appeal on June 2, 2017.

         {¶6} Appellant's appointed counsel has filed a no merit brief and request to withdraw pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist. 1970).[1]

         {¶7} This court issued a judgment entry notifying the parties that appellant's counsel had filed a Toney brief and advising appellant he had 30 days to file a pro se brief. Appellant did not file a pro se brief. Consequently, we are left only to conduct our own independent review pursuant to Toney.

         {¶8} In Toney, this court set out the procedure to be used when appointed counsel finds that an indigent criminal defendant's appeal is frivolous. The procedure set out in Toney, at the syllabus, is as follows:

3. Where a 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 ...

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