Court of Appeals of Ohio, Seventh District, Belmont
Criminal Appeal from Court of Common Pleas of Belmont County,
Ohio Case No. 17 CR 60.
Plaintiff-Appellee Attorney Daniel P. Fry Prosecutor Attorney
Joseph Vavra Assistant Prosecutor
Defendant-Appellant Attorney John M. Jurco
Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb
OPINION AND JUDGMENT ENTRY
Defendant-appellant, Austin Gheen, appeals from a Belmont
County Common Pleas Court judgment convicting him of burglary
following his guilty plea.
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.
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
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.
Appellant filed a timely notice of appeal on June 2, 2017.
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.
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
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 ...