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State v. Dunkle

Court of Appeals of Ohio, Fifth District, Muskingum

June 28, 2019

STATE OF OHIO Plaintiff-Appellee
v.
KELLY J. DUNKLE Defendant-Appellant

          Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR2018-0515 & CR2018-0728

          For Plaintiff-Appellee D. MICHAEL HADDOX Muskingum County Prosecutor

          For Defendant-Appellant JEREMY M. MCLENDON Micheli, Baldwin, Mortimer McLendon & Whitacre, LLP

          JUDGES: Hon. W. Scott Gwin, P.J Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

          OPINION

          Hoffman, J.

         {¶1} Appellant Kelly Jo Kunkle appeals the judgments entered by the Muskingum County Common Pleas Court convicting her of trafficking in drugs (R.C. 2925.03(A)(2)), possession of drug paraphernalia (R.C. 2929.14(C)(1)), and two counts of obstructing justice (R.C. 2921.32(A)(2)) following her pleas of guilty, and sentencing her to an aggregate term of incarceration of five years.

         STATEMENT OF THE CASE[1]

         {¶2} In case number CR2018-0515, Appellant entered pleas of guilty to trafficking in drugs and possession of drug paraphernalia on December 10, 2018. Also on December 10, 2018, Appellant entered pleas of guilty to two counts of obstructing justice in case number CR2018-0728.

         {¶3} Both cases proceeded to sentencing on January 14, 2019. In case number CR2018-0515, the court sentenced Appellant to twenty-four months incarceration for trafficking in drugs and a term of local incarceration of 30 days for possession of drug paraphernalia, to be served concurrently with each other. Appellant filed a notice of appeal (Case No. CT2019-0009).

         {¶4} In case number CR2018-0728, Appellant was sentenced to thirty months incarceration on each obstructing justice conviction, to be served consecutively with each other but concurrently with the sentences imposed in CR2018-0515. She also filed a notice of appeal from this judgment (Case No. CT2019-0010).

         {¶5} Appellate counsel for Appellant has filed a Motion to Withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), rehearing den., 388 U.S. 924, indicating the within appeal is wholly frivolous. Counsel for Appellant has raised one potential assignment of error in each case, asking this Court to determine in each case whether the trial court erred in the sentence imposed upon Appellant. Appellant was given an opportunity to file a brief raising additional assignments of error, but none was filed.

         {¶6} In Anders, the United States Supreme Court held if, after a conscientious examination of the record, a defendant's counsel concludes the case is wholly frivolous, then he or she should so advise the court and request permission to withdraw. Id. at 744. Counsel must accompany the request with a brief identifying anything in the record which could arguably support the appeal. Id. Counsel also must: (1) furnish the client with a copy of the brief and request to withdraw; and, (2) allow the client sufficient time to raise any matters the client chooses. Id. Once the defendant's counsel satisfies these requirements, the appellate court must fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court also determines the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id.

         {¶7} Counsel in this matter has followed the procedure as set forth in Anders. We now will address the merits of Appellant's potential Assignments of Error.

         Case ...


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