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State v. Freeman

Court of Appeals of Ohio, Fifth District, Muskingum

May 29, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JOHN E. FREEMAN Defendant-Appellant

          Criminal appeal from the Muskingum County Court, Case No. TRC1704449

          For Plaintiff-Appellee MOLLY MARTIN Box 189 Zanesville, OH 43702-0189

          For 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.

          OPINION

          GWIN, J.,

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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.

         {¶3} The record transmitted to this court establishes the following facts.

         {¶4} 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.

         {¶5} 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 days.

         Assignment of Error

         {¶6} 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:

         {¶7} "I. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A CONTINUANCE WHEN THE PROSECUTOR DID NOT ACT IN ACCORDANCE ...


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