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State v. Gay

Court of Appeals of Ohio, Second District, Montgomery

August 23, 2019

STATE OF OHIO Plaintiff-Appellee
v.
MARVIN ANTHONY GAY, SR. Defendant-Appellant

          Criminal Appeal from Common Pleas Court No. 2017-CR-1089

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

          S. TODD BRECOUNT, Atty. Reg. No. 0065276, Attorney for Defendant-Appellant.

          OPINION

          TUCKER, J.

         {¶ 1} Following a no contest plea, Appellant, Marvin Gay, Sr., was found guilty of failure to comply with an order or signal of a police officer, and he was sentenced to a term of community control sanctions (CCS). Appellate counsel has filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating he could not find any arguably meritorious appellate issues. We agree with this conclusion. As such, the trial court's judgment will be affirmed.

         Facts and Procedural History

         {¶ 2} Gay was indicted for failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(B), (C)(5), a third-degree felony, and tampering with evidence in violation of R.C. 2921.12(A)(1), also a third-degree felony. Gay filed a motion to suppress, which was overruled. Following this, Gay and the State entered into a plea agreement. The agreement provided that Gay would enter a no contest plea to the failure to comply count, and the tampering count would be dismissed. The agreement further provided that Gay would be sentenced to a term of CCS, that the alternate sentence upon a CCS revocation would be 18 months, and that Gay's bond would be modified so that he would be released from the Montgomery County Jail pending completion of a presentence investigation (PSI). Following receipt of the PSI, Gay was so released, and the trial court sentenced Gay to CCS with the alternate sentence being 18 months.

         {¶ 3} Gay's original appellate counsel also filed an Anders brief, but this brief was rejected, and new counsel appointed, because the appellate record did not include a transcript of the suppression hearing. Current counsel has supplemented the record with the suppression hearing transcript. Current counsel then filed the noted Anders brief, and he also requested leave to withdraw as Gay's attorney. Gay was informed of the Anders brief and of his right to file a pro se brief within 60 days of the Anders notice. Gay has not filed a brief.

         Anders Standard

         {¶ 4} An appellate court, upon the filing of an Anders brief, has a duty to determine, "after a full examination of the proceedings," whether the appeal is, in fact, "wholly frivolous." Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one about which, "on the facts and law involved, no responsible contention can be made that offers a basis for reversal." State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders brief and appoint new counsel to represent the defendant.

         Anders Analysis

         {¶ 5} Consistent with his duty under Anders, counsel has articulated two potential assignments of error: (1) that the trial court erred in overruling Gay's motion to suppress, and (2) that the plea hearing did not conform to the Crim.R. 11 requirements.

         Motion to Suppress

         {¶ 6} Gay's motion to suppress asserted that the stop of his vehicle was illegal and following the stop, he made statements subject to suppression. Moraine Police Officer William Olinger testified at the suppression hearing that his cruiser was parked so that he could observe the parking lot of the Knights Inn located on Dryden Road. While so positioned, Olinger observed an automobile enter the Knights Inn parking lot. This vehicle was driven by Gay. Gay, left the engine running, exited the vehicle, walked to a motel room door, and, it appeared to ...


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