State v. Diaz, Unpublished Decision (6-21-2000) ( 2000 )

JUDGMENT ENTRY. This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1).

Following a bench trial, appellant Luiz Diaz was convicted of felonious assault in violation of R.C. 2903.11(A)(2) and acquitted of aggravated burglary and another felonious assault charge. The trial court sentenced him to two years' incarceration, the minimum prison term for a second-degree felony.

In accordance with Anders v. California,¹ Diaz's appointed counsel has filed an affidavit advising this court that she has found no viable issues for appeal, that she has attempted to contact Diaz about her findings, and that she has informed Diaz that she has filed a brief with no assignments of error. According to the affidavit, Diaz has not responded. Counsel has also submitted a motion to withdraw and has requested that this court conduct an independent review of the record to determine if prejudicial error exists.

We have reviewed the entire record, including the trial court's sentencing hearing, and conclude that Diaz's appointed counsel has provided a conscientious examination of the law and the record and that the record fails to demonstrate any arguable issues. Therefore, we hold this appeal to be wholly frivolous. We overrule the motion to withdraw filed by Diaz's appointed counsel and affirm the judgment of the trial court. Although this appeal is frivolous under App.R. 23 and R.C. 2505.35, we refrain from taxing costs and expenses against Diaz because he is clearly indigent.

Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.

__________ Doan, P.J.

Painter, and Winkler, JJ.

¹ Anders v. California (1967), 386 U.S. 738,87 S.Ct. 1396.