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State v. McCabe

Court of Appeals of Ohio, Fifth District, Perry

December 23, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JOSHUA E. McCABE Defendant-Appellant

          Appeal from the Perry County Court of Common Pleas, Case No. 14-CR-34

         JUDGMENT: Affirmed

          For Plaintiff-Appellee JOSEPH A. FLAUTT Perry County Prosecuting Attorney

          For 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.

          OPINION

          HOFFMAN, P.J.

         {¶1} 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.

         STATEMENT OF THE CASE[1]

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 herein.

         {¶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, 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.

         {¶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} 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 was ...


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