State v. Brocar, 22256 (10-24-2008) , 2008 Ohio 5513 ( 2008 )

OPINION {¶ 1} This is Ronald Brocar's appeal from resentencing upon remand from this court. The trial court resentenced Brocar to the same sentences it imposed originally.

{¶ 2} Counsel was appointed to prosecute this appeal, and on June 24, 2008, counsel filed an Anders brief pursuant to Anders v.California (1967), 386 U.S. 738. Counsel proposed three possible assignments of error, but concluded they lacked merit: error in overruling Brocar's motion for polygraph examination; sentence was imposed in violation of the Ex Post Facto Clause of the Constitution of the United States; sentence was contrary to law.

{¶ 3} By order of July 2, 2008, we advised Brocar that his counsel had filed an Anders brief, and of the significance of an Anders brief. We invited Brocar to file his own brief, which he has done.

{¶ 4} On his own behalf, Brocar has filed a pro se brief asserting that sentence imposed upon remand, which remand was pursuant toState v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, violated the Ex Post Facto and Due Process clauses of the Constitution of the United States.

{¶ 5} The sentence imposed upon remand was in accord withFoster, and we have said on several occasions that we are without jurisdiction to declare decisions of the Supreme Court of Ohio, such asFoster, violative of the Ex Post Facto and Due Process clauses of the federal constitution. See, e.g., State v. Burkhart, Champaign App. No. 06 CA 18, 2007-Ohio-3436, 2007 WL 1934357.

{¶ 6} We also agree with appointed appellate counsel that his proposed assignments of error lack arguable merit. We have independently reviewed the proceedings upon remand and conclude, as did appellate counsel, that there are no arguably meritorious issues, and that this appeal is frivolous.

{¶ 7} The judgment will be affirmed.

BROGAN, J. and DONOVAN, J., concur.

Copies mailed to:

R. Lynn Nothstine

Anthony S. Vannoy

Ronald W. Brocar

Hon. Dennis J. Langer