[Cite as State v. Millan,
2016-Ohio-4695.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103431
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSE M. MILLAN
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-592135-A
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: June 30, 2016
ATTORNEY FOR APPELLANT
David L. Doughten
David L. Doughten Co. L.P.A.
4403 St. Clair Avenue
Cleveland, OH 44103
Also listed:
Jose M. Millan
Inmate No. A581394
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, OH 44905
ATTORNEY FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Jose M. Millan, appeals from his conviction of
unauthorized use of a motor vehicle. Millan’s appointed appellate counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967),
and requested leave to withdraw as counsel. After a review of the record, we grant
counsel’s motion to withdraw and dismiss this appeal.
{¶2} In Anders, the United States Supreme Court held that if appointed counsel,
after a conscientious examination of the case, determines that the appeal is wholly
frivolous, counsel may advise the court and request permission to withdraw from the case.
Anders at 744. The request must be accompanied by a brief identifying issues that
could arguably support the appeal.
Id. The brief must be furnished to the client, who
must then be allowed sufficient time to file his or her own brief.
{¶3} Millan’s counsel filed a motion to withdraw in compliance with these
requirements.1 This court ordered counsel’s motion be held in abeyance pending our
independent review of the case.
{¶4} In accordance with Anders, once appellant’s counsel satisfied the
requirements, this court then “examines the proceedings below to determine if any
In a motion dated April 28, 2016, filed by Millan’s counsel, which this court construed as a
1
notice of compliance, counsel certified that he had mailed his motion to withdraw to Millan on March
1, 2016, at his last known address (Lorain Correctional Institution at 2075 South Beldon Road,
Grafton, Ohio) and that counsel will resend a copy of the motion to Millan at his last known address.
This court subsequently notified Millan that he may file a pro se brief by June 10,
2016, but Millan did not do so.
meritorious issues exist. If we conclude the appeal is wholly frivolous, we may grant
counsel’s request to withdraw and dismiss the appeal without violating constitutional
requirements, or we may proceed to a decision on the merits if state law so requires.”
Anders, 386 U.S. at 744,
87 S.Ct. 1396,
18 L.Ed.2d 493.
{¶5} In this case, the Cuyahoga County Grand Jury indicted Millan for one count
of grand theft, a fourth-degree felony, pursuant to R.C. 2913.02(A)(2). Millan
subsequently entered a guilty plea to a reduced charge of unauthorized use of a motor
vehicle under R.C. 2913.03(B), a fifth-degree felony. The trial court sentenced him to
124 days in jail but gave him jail-time credit of 124 days, which he already served. The
trial court also ordered him to pay restitution of $679.
{¶6} In his Anders brief, Millan’s counsel states that he has thoroughly reviewed
the record and determined that there were no meritorious arguments he could make on
Millan’s brief. Counsel nonetheless sets forth two potential arguments pursuant to
Anders: first, whether his plea was knowingly and voluntarily entered pursuant to Crim.R.
11; and second, whether his trial counsel provided ineffective assistance counsel at the
plea proceeding.
{¶7} As part of the independent review of Millan’s case, this court has examined
and considered the potential arguments identified in counsel’s Anders brief. Our own
review shows that Millan entered the guilty plea knowingly, intelligently, and voluntarily.
The trial court fully complied with the dictates of Crim.R. 11(C) in accepting Millan’s
plea. Likewise, we did not find his trial counsel provided ineffective assistance counsel
under Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
{¶8} We, therefore, conclude that there are no arguable legal points on the merits
of this matter. This appeal is wholly frivolous pursuant to Anders, 386 U.S. 738,
87
S.Ct. 1396,
18 L.Ed.2d 493. Counsel’s request to withdraw is granted, and we dismiss
this appeal.
{¶9} Appeal dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR
