Court of Appeals of Ohio, Fifth District, Muskingum
Criminal appeal from the Muskingum County Court, Case No.
Plaintiff-Appellee MOLLY MARTIN Box 189 Zanesville, OH
Defendant-Appellant VALERIE K. WIGGINS 107 S. Main St. New
Lexington, OH 43764
JUDGES: Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon.
William B. Hoffman, J.
Defendant-appellant John Freeman ["Freeman"]
appeals his conviction and sentence after a no contest plea
in the Muskingum County Court. The Appellee State of Ohio has
not filed a brief in this case.
and Procedural History
In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150,
748 N.E.2d 528(2001), the Supreme Court noted, "a
reviewing court cannot add matter to the record before it
that was not a part of the trial court's proceedings, and
then decide the appeal on the basis of the new matter.
See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d
500(1978)." It is also a longstanding rule "that
the record cannot be enlarged by factual assertions in the
brief." Dissolution of Doty v. Doty, 4th Dist.
No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto
Bank v. Columbus Union Stock Yards, 120 Ohio App. 55,
59, 201 N.E.2d 227(1963). New material and factual assertions
contained in any brief in this court may not be considered.
See, North v. Beightler, 112 Ohio St.3d 122,
2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v.
Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
N.E.2d 1202, ¶16. Therefore, we have disregarded facts
in Freeman's brief that are outside of the record.
The record transmitted to this court establishes the
Freeman was charged in Muskingum County Court on August 3,
2017 with multiple charges including violations of OVI in
violation of R.C. 4511.19(A)(1)(A), OVI low test in violation
of R.C. 4511.19(A)(1)(D), Driving Under OVI Suspension in
violation of R.C. 4510.14 and a Marked Lanes violation in
violation of R. C. 4511.33(A). This was Freeman's eighth
OVI offense in twenty years. T. Aug. 25, 2017 at 11. Freeman
was also on felony probation at the time of the offense.
Id. at 10.
On August 25, 2017, Freeman pled no contest to the charges.
The trial court found Freeman guilty. The sentences were
imposed consecutively for an aggregate jail sentence of 360
Counsel for Freeman has filed a Motion to Withdraw and a
brief pursuant to Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967) asserting one
potential assignments of error:
"I. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
REQUEST A CONTINUANCE WHEN THE PROSECUTOR DID NOT ACT IN