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State v. Baker

Court of Appeals of Ohio, Second District, Montgomery

May 25, 2018

STATE OF OHIO Plaintiff-Appellee
v.
KEVIN J. BARKER Defendant-Appellant

          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

          JAMES SWEENEY, Atty. Attorney for Defendant-Appellant

          KEVIN J. BARKER, #679074, London Correctional Institution, Defendant-Appellant, pro se

          OPINION

          DONOVAN, J.

         {¶ 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.

         Anders Standard

         {¶ 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. ...


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