State v. Hinkle

[Cite as State v. Hinkle, 

.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


  STATE OF OHIO,                              Case No. 25-COA-025

  Plaintiff - Appellee                        Opinion And Judgment Entry

  -vs-                                        Appeal from the Ashland County Court of
                                              Common Pleas, Case No. 25-CRI-044
  DAKOTA HINKLE,
                                              Judgment: Affirmed
  Defendant – Appellant
                                              Date of Judgment Entry: January 20, 2026



BEFORE: William B. Hoffman; Andrew J. King; Robert G. Montgomery, Judges

APPEARANCES: CHRISTOPHER R. TUNNELL, Ashland County Prosecuting
Attorney, by JAMES B. REESE III, Assistant Prosecuting Attorney, for Plaintiff-Appellee;
CHRISTOPHER BAZELEY, for Defendant-Appellant.




Montgomery, J.


         {¶1}    This matter comes before the Court upon the Motion to Withdraw and

Anders brief filed by Attorney Christopher Bazeley, appointed appellate counsel for

Defendant-Appellant, Dakota Hinkle (“Appellant”). After timely filing the notice of appeal,

appellate counsel filed the instant Motion and brief pursuant to Anders v. California, 

 (1967).

                                STATEMENT OF FACTS AND CASE

         {¶2}    On April 10, 2025, Appellant was indicted on one count of Strangulation, in

violation of R.C. 2903.18, a fourth-degree felony, and one count of Domestic Violence in
violation of R.C. 2929.25, a fourth-degree felony. The charges stemmed from allegations

that Appellant engaged in an altercation with his girlfriend. Appellant pled guilty to the

charge of Domestic Violence and on August 11, 2025, he was sentenced to 12 months

incarceration. Appellant consented to appearing remotely for both the plea hearing and

the sentencing hearing. The trial court did not advise Appellant of his rights under Crim.R.

43. Appellant filed a timely appeal on August 25, 2025.

       {¶3}   Attorney Bazeley later filed the instant brief pursuant to Anders v. California,

 (1967) and a corresponding Motion to Withdraw. The Motion to Withdraw

and Anders Brief state that counsel has reviewed the entire record, researched potential

issues, and determined that there are no non-frivolous issues to support an appeal.

Attorney Bazeley requests that this Court make an independent review of the record to

determine whether there are any additional issues that would support an appeal.

                                STANDARD OF REVIEW

       {¶4}   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. Anders v.

California, 

 (1967). Counsel must accompany his request with a brief

identifying anything in the record that could arguably support his client's appeal. 

 The

Anders procedure “permit[s] appellate counsel to represent an indigent client and yet

avoid the ethical pitfall of filing a frivolous appeal.” State v. Tsibouris, 

 (1st Dist.). Thus, a defendant's right to appeal does not include a frivolous appeal.

State v. Taylor, 

 (8th Dist.), citing Penson v. Ohio, 

(1988).
          {¶5}   The Anders procedure is designed for cases in which “counsel finds [the]

case to be wholly frivolous, after a conscientious examination” of the record. Anders, at

744. Accordingly, a comprehensive review of the record is a fundamental first step.

“Counsel cannot conclude an appeal is frivolous without first conducting a detailed review

of the case.” Tsibouris, at ¶ 6. This detailed review must include a complete review of the

case, including all transcripts. See Tsibouris; In re A.J.F., 

 (11th

Dist.).

          {¶6}   Counsel must also: (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. Anders, at 744. Once 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 the appeal without violating constitutional

requirements or may proceed to a decision on the merits if state law so requires. 

          {¶7}   By Judgment Entry filed October 27, 2025, this Court indicated that it had

received notice pursuant to Anders that Attorney Bazeley provided Appellant a copy of

the Anders brief. In that same Judgment Entry, we informed Appellant he may file a pro

se brief in support of the appeal within 60 days from the date of the Entry.               On

November 18, 2025, the State filed its Response. Appellant has not filed anything to date.

          {¶8}   The record establishes that Appellant’s counsel satisfied Anders

requirements. Accordingly, we proceed to review the potential assignments of error to

determine if any arguably meritorious issues exist, keeping in mind that:
       Anders equates a frivolous appeal with one that presents issues lacking in

       arguable merit. An issue is not lacking in that regard merely because the

       prosecution can be expected to present a strong argument in reply. An issue

       lacks arguable merit if, on the facts and law involved, no responsible

       contention can be made that it offers a basis for reversal.

       {¶9}     State v. Pullen, 

, ¶ 4 (2d Dist.); State v. Moore, 2009-Ohio-

1416, ¶ 4 (2d Dist.); State v. Grant, 

 (5th Dist.); State v. Reynolds,

 (5th Dist.).

                          POTENTIAL ASSIGNMENT OF ERROR

     {¶10} “I. THE TRIAL COURT ERRED WHEN IT REQUIRED HINKLE TO
APPEAR REMOTELY FOR HIS PLEA AND SENTENCING HEARINGS BUT FAILED TO
ADVISE HIM OF HIS RIGHTS UNDER CRIM.R. 43.”

                                          ANALYSIS

       {¶11} A criminal defendant has a fundamental right to be physically present at all

critical stages of the proceedings.       State v. Hale, 

, ¶ 100; Crim.R.

43(A)(1).     Indeed, the United States Supreme Court mandates that an accused "is

guaranteed the right to be present at any stage of the criminal proceeding that is critical

to its outcome if his presence would contribute to the fairness of the procedure." Kentucky

v. Stincer, 

 (1987).

       {¶12} However, Crim.R. 43(A)(2) specifically allows remote contemporaneous

video for any proceeding if all of the following apply:

       (a)      The court gives appropriate notice to all the parties;

       (b)      The video arrangements allow the defendant to hear and see the

       proceeding;
       (c)     The video arrangements allow the defendant to speak, and to be

       seen and heard by the court and all parties;

       (d)     The court makes provision to allow for private communication

       between the defendant and counsel. The court shall inform the defendant

       on the record how to, at any time, communicate privately with counsel.

       Counsel shall be afforded the opportunity to speak to defendant privately

       and in in person. Counsel shall be permitted to appear with defendant at the

       remote location if requested.

       (3) The defendant may waive, in writing or on the record, the defendant's

       right to be physically present under these rules with leave of court.

       {¶13} Here, the transcripts of both the plea hearing and the sentencing hearing

reveal that Appellant expressly consented to proceeding remotely prior to any substantive

matters being discussed. Change of Plea Tr., p. 3; Sentencing Tr., p. 3. It is equally clear

that the trial court did not expressly advise him on the record of his rights under Crim.R.

43. However, Appellant nor his counsel made any objection to proceeding with the

hearings remotely. Therefore, we must review Hinkle's assignment of error under a

Crim.R. 52(B) plain error analysis. State v. Wood, 

 (5th Dist.).

       {¶14} Under this rule, "[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court." The rule places the

following limitations on a reviewing court's determination to correct an error despite the

absence of timely objections at trial: (1) "there must be an error, i.e. a deviation from a

legal rule," (2) "the error must be plain," that is an error that constitutes "an 'obvious' defect

in the trial proceedings," and (3) the error must have affected "substantial rights" such
that "the trial court's error must have affected the outcome of the trial." State v. Dunn,

 (5th Dist.), citing State v. Morales, 

, ¶ 19 (10th

Dist.); Wood, ¶ 18. In other words, an alleged error is plain error only if the error is

"obvious," and "but for the error, the outcome of the trial clearly would have been

otherwise." State v. Long, 

 (1978), paragraph two of the syllabus; State

v. Sanders, 

; State v. Hale, 

. The decision to correct a

plain error is discretionary and should be done "with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 

 (1978), paragraph three of the syllabus.

       {¶15} In 

 the defendant intentionally waived, in writing and verbally

on the record, his right to be present, in the courtroom, both for the change of plea and

sentencing hearings. Wood also did not object to the trial court's omission pertaining to

Crim.R. 43(A)(2)(d).      In analyzing whether plain error occurred sufficient to warrant

reversal, this Court stated:

       We find the facts here almost identical to those reviewed by the Eighth

       District Court of Appeals in the Sherels case. In Sherels, appellant expressly

       waived his right to be present in the courtroom and agreed to proceed by

       video conference. State v. Sherels, 

. However, the

       trial court did not inform appellant on the record how to communicate

       privately with his attorney as required by Crim.R. 43(A)(2)(d). 

 No

       objection was made on the record concerning this omission. 

 The court

       of appeals held:
       Appellant is unable to demonstrate plain error in the present case because

       he cannot demonstrate that he was prejudiced, in any manner, by the trial

       court's failure to advise him pursuant to Crim.R. 43(A)(2)(d). As noted

       above, at no point during the hearing did appellant ask to speak with his

       attorney privately. Furthermore, appellant does not present any argument

       as to how a private communication with his attorney would have possibly

       changed the outcome of the proceedings. Id. at ¶ 8.

       

.

       {¶16} Likewise, here, Appellant consented to appearing remotely at both hearings

and so consented prior to any substantive matters being addressed. Appellant’s brief

itself states that “the record does not suggest that he had any issues communicating with

the trial court or his attorney.” Appellant’s Anders Brief, p. 3. There is simply nothing to

suggest that the outcome would have been different in any manner. Thus, Appellant fails

to demonstrate plain error, and his sole assignment of error is without merit.
                                    CONCLUSION

      {¶17} After independently reviewing the record, we agree with appellate counsel’s

conclusion that no arguably meritorious claims exist upon which to base an appeal. We

therefore find the appeal to be wholly frivolous under Anders. Attorney Bazeley’s motion

to withdraw as counsel for Appellant is hereby granted. The judgment of the Ashland

County Court of Common Pleas is affirmed.

      {¶18} Costs to Appellant.


By: Montgomery, J.

Hoffman, P.J. and

King, J. concur.