[Cite as State v. Burns,
2019-Ohio-2182.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vsCase No. 2018 CA 0008
JOSEPH BURNS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2017 CR 0125
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 3, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON GIVEN JEFFREY A. MULLEN
PROSECUTING ATTORNEY PUBLIC DEFENDER
318 Chestnut Street 239 North Fourth Street
Coshocton, Ohio 43812 Coshocton, Ohio 43812
Coshocton County, Case No. 2018 CA 0008 2
Wise, John, P. J.
{¶1} Defendant-appellant Joseph D. Burns appeals his conviction on one count
of Domestic Violence, following a plea of guilty in the Coshocton County Court of Common
Pleas.
Facts and Procedural History
{¶2} On November 17, 2017, Appellant Burns was indicted on one count of
Domestic Violence, in violation of R.C. §2919.25(A), a felony of the fourth degree.
{¶3} Appellant initially pled not guilty and discovery proceeded in this matter.
{¶4} On September 14, 2018, Appellant came before the court for a change of
plea wherein Appellant entered a plea of guilty as charged in the indictment. In the
Judgment Entry Plea of Guilty the State of Ohio agreed that in exchange for Appellant’s
plea of guilty it would recommend community control sanctions and that Appellant be
sentenced to a Community Based Correctional Facility. The State of Ohio further agreed
to take no position on judicial release and to not oppose a pre-sentence investigation.
{¶5} The trial court accepted Appellant’s guilty plea, ordered a pre-sentence
investigation and set the matter for a sentencing hearing on November 2, 2018.
{¶6} At the sentencing hearing on November 2, 2018, and memorialized in a
Judgment Entry filed November 7, 2018, the trial court sentenced Appellant to seventeen
(17) months imprisonment.
{¶7} In the Sentencing Entry the trial court explained that it could not adhere to
the joint sentencing recommendation due to the actions of Appellant while on bond after
the change of plea hearing. The court stated:
Coshocton County, Case No. 2018 CA 0008 3
While awaiting sentencing, the Defendant failed to report to the court
as ordered on October 9, 2018; failed to keep his GPS monitor charged; the
GPS monitor was then removed by the Defendant without permission from
the court; and the Defendant used methamphetamine while awaiting his
presentence investigation. (Judgment Entry on Sentencing at 2).
{¶8} In its Sentencing Entry the trial court also noted that Appellant orally moved
the court to withdraw his guilty plea, but the court found the motion to be not well-taken
and denied same from the bench. Id.
{¶9} Counsel for Appellant filed a Motion to Withdraw and a Brief pursuant to
Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493(1967) asserting one
potential assignment of error:
{¶10} “I. THE TRIALS COURT’S SENTENCE WAS CONTRARY TO LAW”.
Law and Analysis
{¶11} 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 should so advise the court and request permission to withdraw. 386 U.S. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal.
Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to
raise any matters that 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
that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss
Coshocton County, Case No. 2018 CA 0008 4
the appeal without violating constitutional requirements, or may proceed to a decision on
the merits if state law so requires.
Id.
{¶12} In his brief, filed January 2, 2019, counsel gave the following notice to
Appellant:
Notice is hereby given to the Defendant/Appellant, Joseph Burns, of
his right to raise any issues, objections or points he wishes to make on his
own behalf to the Fifth District Court of Appeals. Any issues, objections or
points must be submitted in writing and filed no later than thirty (30) days
after receipt of this Motion/Brief.
{¶13} The Certificate of Service certifies that a copy was served on the prosecutor.
{¶14} By Judgment Entry filed March 27, 2019, this Court noted that counsel had
filed an Anders brief and had indicated to the Court that he had served Appellant with the
brief. Although the brief contains a notice to the Appellant of his right to file a pro se brief,
the certificate of service did not indicate that the brief was served upon Appellant.
Accordingly, this Court ordered the Clerk to send a copy of the brief filed by Appellant’s
counsel to Appellant and further notified Appellant via Certified U.S. Mail that he “may file
a pro se brief in support of the appeal on or before May 15, 2019.”
{¶15} Appellant has not filed anything with this Court.
{¶16} We find Appellant’s counsel in this matter has adequately followed the
procedures required by Anders.
Law and Analysis
{¶17} Pursuant to Loc.App.R. 16(C) and Anders, this Court has conducted an
independent examination of the record to determine if there are any issues of arguable
Coshocton County, Case No. 2018 CA 0008 5
merit. Anders instructs that if the appellate court determines that the appeal would be
“wholly frivolous” (i.e., there are no legal points of arguable merit), the court may grant
counsel's request to withdraw and dismiss the appeal. If, however, the court finds any
legal points arguable on their merits, the court must afford appellant the assistance of
counsel before deciding the merits of the case. Anders, 386 U.S. at 744,
87 S.Ct. 1396,
18 L.Ed.2d 493.
{¶18} Upon a complete review of the record, this Court agrees that no prejudicial
error occurred in the lower court, and any appeal on Appellant’s behalf would be frivolous.
{¶19} Accordingly, the motion of appointed counsel to withdraw is granted, and
the appeal of the judgment of the Court of Common Pleas of Coshocton County, Ohio, is
dismissed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0312
