State v. Kirby ( 2011 )

[Cite as State v. Kirby, 2011-Ohio-2636.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25412
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY J. KIRBY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 06 11 4030
DECISION AND JOURNAL ENTRY
Dated: June 1, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} A jury convicted Anthony Kirby of felonious assault, receiving stolen property,
and driving under suspension. He appealed, and this Court affirmed his convictions.
Subsequently, the trial court conducted a hearing in accordance with Section 2929.19.1 of the
Ohio Revised Code to correctly impose postrelease control. Mr. Kirby has appealed from that
hearing. The lawyer who was appointed to represent him has submitted a brief under Anders v.
California, 386 U.S. 738 (1967), alleging that no arguable issues exist for appeal. She has also
moved to withdraw as Mr. Kirby’s lawyer. Having reviewed the entire record and concluded
that the resentencing proceedings were proper, this Court grants the motion to withdraw and
affirms the judgment of the trial court.
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ANDERS BRIEF
{¶2} In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court
wrote that, if a court-appointed lawyer conducts “a conscientious examination” of the record and
concludes that an appeal would be “wholly frivolous,” “[she] should so advise the court and
request permission to withdraw.” Id. at 744. Her request, however, must be accompanied by a
brief “referring to anything in the record that might arguably support the appeal.” Id. A proper
Anders brief “serves the dual purpose of assisting the court in determining both that counsel has
in fact conducted a review of the record and that the case may be decided without an adversary
presentation.” State v. Lowe, 9th Dist. No. 97CA006758, 1998 WL 161274 at *1 (Apr. 8, 1998).
{¶3} When this Court receives an Anders brief, “it must then itself conduct ‘a full
examination of all the proceeding[s] to decide whether the case is wholly frivolous.’” Penson v.
Ohio, 488 U.S. 75, 80 (1988) (quoting Anders v. California, 386 U.S. 738, 744 (1967)). “Only
after this separate inquiry, and only after [this Court] finds no nonfrivolous issue for appeal, may
[it] proceed to consider the appeal on the merits without the assistance of counsel.” Id. If this
Court “disagrees with counsel . . . and concludes that there are nonfrivolous issues for appeal, ‘it
must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.’” Id.(quoting Anders, 386 U.S. at 744).
STATE v. FISCHER
{¶4} Mr. Kirby’s lawyer submitted a brief containing five assignments of error, all of
which related to his trial rather than to any aspect of his resentencing. She noted that “how this
case proceeds is going to be determined by the Ohio Supreme Court’s anticipated decision in
State v. Fischer, [128 Ohio St. 3d 92, 2010-Ohio-6238.]” She requested that, “[i]f the [Ohio]
Supreme Court affirms this Court’s decision in [State v. Fischer, 181 Ohio App. 3d 758, 2009-
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Ohio-1491], and [Mr.] Kirby’s case cannot receive a fresh review,” this Court treat the brief as
an Anders brief because “[Mr.] Kirby’s previous appeal would constitute the law of the case and
would bar new issues, [and] no arguable issues would exist for appeal[.]”
{¶5} In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, the Supreme Court held
that, “when a judge fails to impose statutorily mandated postrelease control as part of a
defendant’s sentence, that part of the sentence is void and must be set aside.” Id. at ¶26. “[R]es
judicata still applies to other aspects of the merits of a conviction, including the determination of
guilt and the lawful elements of the ensuing sentence. The scope of an appeal from a
resentencing hearing in which a mandatory term of postrelease control is imposed is limited to
issues arising at the resentencing hearing.” Id. at ¶40.
{¶6} Mr. Kirby has asserted that he was denied a fair trial, that he was denied the right
to confront witnesses, that his felonious assault conviction was not supported by sufficient
evidence and was against the manifest weight of the evidence, and that he received ineffective
assistance of counsel at trial. All of these alleged errors were raised or could have been raised on
Mr. Kirby’s first appeal and, therefore, are barred by res judicata. State v. Ketterer, 126 Ohio St.
3d 448, 2010-Ohio-3831, at ¶59. Because none of Mr. Kirby’s assigned errors arise from his
postrelease control hearing, they are outside the scope of this appeal. State v. Fischer, 128 Ohio
St. 3d 92, 2010-Ohio-6238, at ¶40.
{¶7} This Court has fully reviewed the record and proceedings and has not identified
any nonfrivolous issues for appeal. Accordingly, having independently reviewed the entire
record and determined that all the proceedings were proper, this Court concludes that the trial
court’s judgment should be affirmed.
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CONCLUSION
{¶8} Mr. Kirby’s lawyer’s motion to withdraw as counsel is granted. The judgment of
the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.