State v. Shamblin ( 2011 )

[Cite as State v. Shamblin, 2011-Ohio-2688.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2010-CA-00126
KAYLON D. SHAMBLIN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case Nos.
10CR312 and 10CR361
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 2, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
No Appearance JUSTIN T. RADIC
57 East Main Street
Newark, OH 43055
[Cite as State v. Shamblin, 2011-Ohio-2688.]
Gwin, P.J.
{¶1} Appellant, Kaylon D. Shamblin, was indicted in two cases which were later
consolidated for the purposes of sentencing. In the first case, Appellant was indicted on
one count of abduction, a felony of the third degree, in violation of R.C. 2905.02(A)(2),
one count of gross sexual imposition, a felony of the fourth degree, in violation of R.C.
2907.05(A)(1), and one count of disseminating matter harmful to juveniles, a felony of
the fifth degree. In the second case, Appellant was indicted on four counts of unlawful
sexual conduct with a minor, felonies of the fourth degree in violation of R.C. 2907.04(A)
and (B)(1).
{¶2} Appellant entered pleas of guilty to all counts in both cases. Appellant
was sentenced to a term of two years on the abduction charge, a term of one year on
the gross sexual imposition charge, and a nine month prison term for disseminating
matter harmful to juveniles. All three of these sentences were ordered served
concurrent with one another, however, they were also ordered to be served consecutive
to the sentences imposed in the second case for unlawful sexual conduct with a minor.
The trial court imposed one year prison terms for each of the four counts of unlawful
sexual conduct with a minor for a total prison term of six years. The trial court also
imposed a five year period of mandatory post release control.
{¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth two proposed
Assignments of Error. Appellant did not file a pro se brief alleging any additional
Assignments of Error. Appellee did not file a brief. Counsel for Appellant has raised a
Licking County, Case No. 2010-CA-00126 3
potential assignment of error asking this Court to determine whether Appellant’s plea
was entered knowingly, intelligently, and voluntarily.
{¶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. Id. 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.
{¶5} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738. We now will address the merits of Appellant’s Potential
Assignment of Error.
I.
{¶6} In his potential Assignment of Error, Appellant suggests his plea was not
entered knowingly, intelligently, and voluntarily. A review of the plea hearing
demonstrates the trial court complied with the mandate of Crim. R. 11 in accepting
Appellant’s guilty plea. The trial court explained to Appellant all of his rights, the
potential penalties, and the effect of entering the guilty pleas.
Licking County, Case No. 2010-CA-00126 4
{¶7} As we outlined in State v. Sullivan, 2007 WL 2410108, 2-3 (Ohio App. 5
Dist.,2007), a determination of whether a plea is knowing, intelligent, and voluntary is
based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272. If a
criminal defendant claims that his plea was not knowingly, voluntarily, and intelligently
made, the reviewing court must review the totality of the circumstances in order to
determine whether or not the defendant's claim has merit. State v. Nero (1990), 56 Ohio
St.3d 106, 108.
{¶8} To ensure that a plea is made knowingly and intelligently, a trial court
must engage in oral dialogue with the defendant in accordance with Crim.R. 11(C)(2).
Engle, 74 Ohio St.3d at 527.
{¶9} The Appellant indicated he had read the indictment, read plea of guilty
forms, which contain an explanation of Appellant’s constitutional rights, and discussed
these items with his attorney. The trial court orally went over all of the required
information to comply with Crim.R. 11. There is absolutely no evidence Appellant’s plea
was not entered knowingly, intelligently, and voluntarily.
{¶10} Appellant’s first Assignment of Error is overruled.
Licking County, Case No. 2010-CA-00126 5
{¶11} For these reasons, after independently reviewing the record, we agree
with counsel's conclusion that no arguably meritorious claims exist upon which to base
an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant
counsel's request to withdraw, and affirm the judgment of the Licking County Court of
Common Pleas.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0601
[Cite as State v. Shamblin, 2011-Ohio-2688.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
KAYLON D. SHAMBLIN :
:
:
Defendant-Appellant : CASE NO. 2010-CA-00126
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE