from the Perry County Court of Common Pleas, Case No.
Plaintiff-Appellee JOSEPH A. FLAUTT Perry County Prosecuting
Defendant-Appellant JAMES S. SWEENEY James Sweeney Law, LLC
JUDGES: Hon. William B. Hoffman, P.J Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Defendant-appellant Joshua McCabe appeals the April 10, 2019
Judgment Entry entered by the Perry County Court of Common
Pleas, which revoked his community control and sentenced him
to a definite term of incarceration of seventeen (17) months,
after he admitted he violated his community control.
Plaintiff-appellee is the state of Ohio.
OF THE CASE
On August 29, 2014, Appellant pled guilty to one count of
trafficking in cocaine, a violation of R.C. 2925.03(A)(1) and
(C)(4)b), a felony of the fourth degree. The trial court
sentenced Appellant to community control for a period of five
years with the special requested condition he complete a
community based correctional facility. The trial court also
imposed a reserved sentence of eighteen months in prison.
The state filed a motion alleging Appellant had violated
conditions of his community control. On May 10, 2016,
Appellant admitted he violated his community control. The
trial court tolled Appellant's community control while he
completed his prison term on another charge. The trial court
also imposed an additional community control condition, to
wit: Appellant attend and successfully complete a residential
treatment program upon his release from prison. Subsequently,
on July 28, 2017, the state filed another motion alleging
Appellant had again violated the terms of his community
control. The trial court again tolled Appellant's
probation and issued a felony warrant for his arrest.
Appellant was convicted of falsification in Zanesville
Municipal Court Case No. CRB 1801526B, on November 19, 2018.
Thereafter, on March 5, 2019, Appellant was convicted of two
counts of possession of drugs in Muskingum County Court of
Common Pleas Case No. CR2018-0011. On April 9, 2019,
Appellant admitted to the probation violation at issue
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, asking this Court to determine whether the trial court
erred in the prison sentence imposed upon Appellant.
Appellant was given an opportunity to file a brief raising
additional assignments of error, but he has not filed such.
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.
Via Judgment Entry filed September 23, 2019, this Court found
Counsel had filed an Anders brief and had served Appellant
with the brief. The judgment entry advised Appellant he
"may file a pro se brief in support of the appeal on or
before October 31, 2019." A copy of the judgment entry