Court of Appeals of Ohio, Second District, Montgomery
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
TODD BRECOUNT, Atty. Reg. No. 0065276, Attorney for
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.
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
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.
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
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.
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 ...