Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court T.C. NO. 12-CR-477
MATHIAS H. HECK, JR., by ANDREW FRENCH, Atty. Reg. Assistant
Prosecuting Attorney, Montgomery County Prosecutor's
Office, Attorney for Plaintiff-Appellee
SWEENEY, Atty. Attorney for Defendant-Appellant
J. BARKER, #679074, London Correctional Institution,
Defendant-Appellant, pro se
1} Defendant-appellant, Kevin J. Barker, appeals a
decision of the Montgomery County Court of Common Pleas,
Criminal Division, as it relates to his "Motion to
Correct Void Sentence and/or Judgment" which he
originally filed on March 8, 2016. On September 30, 2016, the
trial court sustained in part and overruled in part
Barker's motion, finding that it had failed to properly
state its reasons for imposing consecutive sentences in his
underlying convictions. On February 7, 2017, the trial court
issued an Amended Termination Entry in which it stated its
findings for imposing consecutive sentences. Barker filed a
timely notice of appeal with this Court on February 22, 2017.
2} In June of 2012, Barker was indicted on one count
of engaging in a pattern of corrupt activity, two counts of
promoting prostitution, and three counts of possession of
criminal tools. After a jury trial in March of 2013, Barker
was convicted of all charges. The trial court sentenced
Barker to an aggregate sentence of eight years in prison.
3} Barker appealed, raising claims of ineffective
assistance of counsel and that his convictions were based on
insufficient evidence and against the manifest weight of the
evidence. We rejected Barker's arguments and affirmed his
convictions. State v. Barker, 2d Dist. Montgomery
No. 25732, 2014-Ohio-1269 (Barker I). See also State v.
Barker, 2d Dist. Montgomery No. 25722 (Decision and
Final Judgment Entry, May 17, 2013) (dismissing appeal as
duplicative of Case No. 25732). In September of 2015, Barker
sought to reopen his direct appeal, but we denied his
application as untimely.
4} Also on March 8, 2016, Barker filed a motion in
the trial court pursuant to Crim.R. 36 and App.R. 9(E) to
correct the trial record. Barker's motion asserted that
the trial court had failed to (1) state its position on
whether the two violations of R.C. 2907.22(A)(2) (promoting
prostitution) involved "alternative means" or
"multiple acts, " and (2) rule on whether the
playing of an audio recording precluded a detective from
testifying about the content of the recording. On August 9,
2016, the trial court overruled as untimely Barker's
motion to correct the record. We subsequently affirmed the
decision of the trial court in State v. Barker, 2d
Dist. Montgomery No. 27252, 2017-Ohio-6994.
5} As previously stated, on March 8, 2016, Barker
filed a "Motion to Correct Void Sentence and/or
Judgment" which the trial court sustained in part and
overruled in part on September 30, 2016. A resentencing
hearing was held on November 2, 2016, and an amended
termination entry was filed by the trial court on November
10, 2016. Barker appealed, and we issued an opinion
dismissing his appeal and finding that the trial court did
not have jurisdiction to issue the amended termination entry
because Barker had another appeal pending at the time.
State v. Barker, 2d Dist. Montgomery No. 27358,
December 27, 2016, Decision and Final Judgment Entry.
6} In our opinion in CA No. 27358, we stated that
once Barker's appeal was dismissed, "the trial court
may re-enter the Amended Termination Entry" and
"Barker may then file a new appeal from that
order." Thereafter, the trial court filed a second
amended termination entry on February 7, 2017, whereupon
Barker filed the instant appeal.
7} On July 26, 2017, Barker's appointed counsel
submitted a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which
counsel states that after a review of the record of the
proceedings before the trial court, he was unable to locate
any arguably meritorious issues for appeal. This Court
notified Barker of his counsel's submission and provided
him an opportunity to file a pro se brief. Barker filed his
pro se appellate brief on August 23, 2017. The State filed
its responsive brief on December 19, 2017, and Barker filed a
reply brief on January 12, 2018.
8}Anders outlines the procedure counsel
must follow to withdraw as counsel due to the lack of any
meritorious grounds for appeal. 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. ...