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State v. Middleton

Court of Appeals of Ohio, Eleventh District, Portage

June 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RICKEY D. MIDDLETON, JR., Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR 00104.

          Victor V. Vigluicci, Portage County Prosecutor, (For Plaintiff-Appellee).

          Chris Wells, (For Defendant-Appellant).

          OPINION

          MARY JANE TRAPP, J.

         {¶1} Appellant, Rickey D. Middleton, Jr. ("Mr. Middleton"), appeals from the judgment of the Portage County Court of Common Pleas, which sentenced him to a 17-month term of imprisonment following his written plea of guilty to one count of domestic violence, a fourth degree felony, in violation of R.C. 2919.25.

         {¶2} Mr. Middleton was appointed counsel for appellate purposes by the trial court, but due to counsel's failure to follow through with the appointment, the trial court removed him and appointed new appellate counsel.

         {¶3} Mr. Middleton's new counsel perfected the appeal in this case but filed a motion to withdraw on the basis that Mr. Middleton's appeal was frivolous. His motion was accompanied by an "Anders brief in accordance with the Supreme Court of the United States' decision inf Anders v. California, 386 U.S. 738 (1967). In his Anders brief, counsel set forth two potential assignments of error: (1) whether the trial court erred by allowing the victim's husband to speak for her at the sentencing hearing, and (2) whether the trial court abused its discretion by sentencing Mr. Middleton to the nearly maximum term of imprisonment permitted for a fourth degree felony. Mr. Middleton's counsel properly certified that a copy of the Anders brief was sent to Mr. Middleton with instructions, so Mr. Middleton could file his own brief if he so chose.

         {¶4} We then issued an order, giving Mr. Middleton 30 days to file a submission to raise any arguments in support of his appeal. No further briefing was filed. Further, we held his counsel's motion to withdraw in abeyance until our present determination.

         {¶5} After a thorough and independent review of the record and all proceedings, we find appellate counsel's potential assignments of error without merit because the victim was statutorily entitled to have a representative speak for her at the sentencing hearing, and Mr. Middleton's sentence is supported by the evidence and not contrary to law. As there are no legal points on the merits of this case, we decline to appoint new counsel, and counsel's motion to withdraw is granted. The judgment of the Portage County Court of Common Pleas is affirmed.

         Substantive and Procedural History

         {¶6} Per the presentence investigation, on January 28, 2018, the police responded to 1536 Benjamin Court for a noise complaint with the resident, Sunny Hawkins. Ms. Hawkins passed the police notes that said, "help, there's someone else in the house," and "warrants." The "someone" was later identified as her live-in boyfriend, Mr. Middleton. The officers observed that Ms. Hawkins was visibly nervous and upset, and she disclosed she had been abused by Mr. Middleton on December 24, 2017.

         {¶7} The investigation revealed that after an argument, Mr. Middleton threw her to the ground. She got up, and he shoved her back down. He got on top of her from behind, pressing her neck into the ground. She rolled over and he began choking her to the point she could not breath. Ms. Hawkins showed the police photographs from the incident and provided a written statement. The police arrested Mr. Middleton and he remained in jail until his sentencing hearing on April 9, 2018.

         {¶8} On February 28, 2018, the court held a discovery/change of plea hearing. After engaging in a colloquy with Mr. Middleton, the court accepted Mr. Middleton's plea of guilty to one count of domestic violence, a felony of the fourth degree. The court further ordered an expedited presentence investigation and continued bond.

         {¶9} A little over a month later, on April 9, 2018, the court held a sentencing hearing. The state stayed silent as to a sentence recommendation. The court considered Ms. Hawkins's victim impact statement, and Ms. Hawkins's representative, Jack Hawkins, her estranged ex-husband, spoke on her behalf. Mr. Hawkins told the court that his children (with Ms. Hawkins) are in fear for their mother's safety and that Mr. Middleton told Ms. Hawkins he will be ...


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