State v. Kaltenbach ( 2019 )

[Cite as State v. Kaltenbach, 2019-Ohio-687.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18 AP 0008
DOUGLAS KALTENBACH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Anders
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: February 19, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK J. HOWDYSHELL JAMES S. SWEENEY
PROSECUTING ATTORNEY JAMES SWEENEY LAW, LLC
19 East Main Street 97 South Liberty Street
McConnelsville, Ohio 43756 Powell, Ohio 43065
Morgan County, Case No. 18 AP 0008 2
Wise, P. J.
{¶1} Defendant-appellant Douglas Kaltenbach appeals his conviction on one
count of Having Weapons While Under Disability, following a plea of no contest in the
Morgan County Court of Common Pleas.
Facts and Procedural History
{¶2} On September 30, 2017, Appellant Kaltenbach was indicted on one count
of Having Weapons While Under Disability, in violation of R.C. §2923.13(A)(3), a felony
of the third degree.
{¶3} Appellant initially pled not guilty and discovery proceeded in this matter.
{¶4} On May 7, 2018, Appellant came before the court for a change of plea
wherein Appellant agreed to enter a plea of guilty as charged in the indictment and the
state of Ohio recommended community control supervision for a period of five (5) years.
The state further agreed to return the money seized as unrelated to the offense charged.
The state did state that it would seek forfeiture of the firearms, which the defendant
opposed. The trial court accepted Appellant’s plea of no contest and set a sentencing
hearing for July 2, 2018.
{¶5} At the sentencing hearing on July 2, 2018, and memorialized in a Judgment
Entry filed July 10, 2018, the trial court sentenced Appellant to five (5) years community
control supervision. The court further ordered Appellant to pay court costs but did not
impose a fine in this matter. The court also ordered forfeiture of the firearms and
ammunition seized under the search warrant, but ordered the return of all other seized
property.
Morgan County, Case No. 18 AP 0008 3
{¶6} On November 15, 2018, 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 as to the forfeiture of the firearms,
claiming that same were owned by Appellant’s son.
Law and Analysis
{¶7} 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
the appeal without violating constitutional requirements, or may proceed to a decision on
the merits if state law so requires. Id.{¶8} By Judgment Entry filed November 26, 2018, this Court noted that counsel
had filed an Anders brief and had indicated to the Court that he had served Appellant with
the brief. Accordingly, this Court notified Appellant via Certified U.S. Mail that he “may
file a pro se brief in support of the appeal on or before December 31, 2018.”
{¶9} On December 27, 2018, Appellant filed a pro se, two-page, handwritten
document titled “Brief”.
Morgan County, Case No. 18 AP 0008 4
{¶10} We find Appellant’s counsel in this matter has adequately followed the
procedures required by Anders.
App.R. 16
{¶11} The document Appellant filed on December 27, 2018, we have construed
as his pro se brief in support of his appeal. This document fails in almost every respect to
comply with the requirements governing the content of the brief of the Appellant. App.R.16
(A)(1)-(7). Briefs filed in this Court, whether by counsel or pro se, must comply with App.R.
16.
{¶12} Most importantly, Appellant has failed, inter alia, to set forth any
assignments of error or propositions of law or cite to the record in this matter. App.R.
16(A)(3) requires that a brief contain assignments of error presented for review on appeal
and that they be included in a separate statement.
Law and Analysis
{¶13} 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
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.
{¶14} 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.
Morgan County, Case No. 18 AP 0008 5
{¶15} Accordingly, the motion of appointed counsel to withdraw is granted, and
the appeal of the judgment of the Court of Common Pleas of Morgan County, Ohio, is
dismissed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 0211