State v. Lariche , 2020 Ohio 804 ( 2020 )

[Cite as State v. Lariche, 2020-Ohio-804.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108512
v. :
MICHAEL LARICHE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: March 5, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-13-575887-C, CR-15-595648-A, and CR-16-611898-A
Appearances:
Olivia A. Myers, for appellant.
LARRY A. JONES, SR., J.:
Defendant-appellant Michael Lariche (“Lariche”) filed a notice of
appeal of the trial court’s April 2, 2019 judgments resentencing him pursuant to this
court’s mandate in State v. Lariche, 8th Dist. Cuyahoga No. 106106, 2018-Ohio-
3581. Lariche was appointed counsel, and after counsel’s review of the record, she
filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967), seeking leave to withdraw as counsel and dismiss the appeal.
For the reasons that follow, we grant counsel’s request to withdraw and dismiss the
appeal.
This appeal involves drug-related charges brought against Lariche in
three cases: Cuyahoga C.P. Nos. CR-13-575887-C, CR-15-595648-A, and CR-16-
611898-A. In the first two cases, Lariche violated his community control sanctions,
and in the third case he was charged with escape for removing his court-ordered
GPS monitoring device. After Lariche had violated his community control sanctions
several times, the trial court terminated the sanctions and sentenced Lariche to a
five-year prison term, which included consecutive terms. Lariche appealed,
challenging the sentence.
This court found that the trial court failed to make all the statutorily
mandated findings for the imposition of consecutive terms under R.C.
2929.14(C)(4) and incorporate the findings into the sentencing entries as required
by State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659; this court
therefore reversed the consecutive sentences and remanded for resentencing.
Lariche at ¶ 25-28. On remand, the trial court held a resentencing hearing and again
sentenced Lariche to an aggregate five-year prison sentence, which included
consecutive terms. This appeal follows.
As mentioned, based on the belief that no prejudicial error occurred
in the trial court and that any ground for appeal would be frivolous, Lariche’s
counsel filed a motion to withdraw and dismiss the appeal under the authority of
Anders. This court granted Lariche approximately a month and a half after counsel’s
motion was filed to submit a pro se brief. That time has expired and no brief has
been filed.
In Anders, the United States Supreme Court outlined the procedure
that counsel must follow to withdraw due to the lack of any meritorious grounds for
appeal. Specifically, if appointed counsel, after a conscientious examination of the
case, determines the appeal to be wholly frivolous, he or she should advise the court
of that fact and request permission to withdraw. Anders, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493, at 744. However, the request must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id.
Counsel must also furnish the client with a copy of the brief, and the defendant must
be allowed sufficient time to file his or her own brief, pro se. Id.
When these requirements have been met, the appellate court must
complete an independent examination of the trial court proceedings to determine
whether the appeal is “wholly frivolous.” Id. If the court, in its independent review,
determines that a possible issue exists, it must discharge current counsel and
appoint new counsel to prosecute the appeal. Id. If, however, the court determines
that the appeal is wholly frivolous, the appellate court will grant counsel’s motion to
withdraw and dismiss the appeal. Id.
Former Loc.App.R. 16(C) of the Eighth District Court of Appeals set
forth the procedure regarding Anders briefs and defense counsel’s motions to
withdraw. The rule was amended, effective February 1, 2019, however, and now no
longer includes any procedure on Anders briefs and motions to withdraw. This
court has decided that the “absence of a local rule governing Anders briefs does not
prevent [it] from accepting these briefs nor from following the procedure the United
States Supreme Court outlined in Anders.” State v. Sims, 8th Dist. Cuyahoga No.
107724, 2019-Ohio-4975, ¶ 9. “As a result, we will continue to adhere to the
procedures outlined in Anders pertaining to both counsel and the court when
appointed appellate counsel files a motion to withdraw because an appeal would be
wholly frivolous.” Id. at ¶ 14.1
Potential Issue for Review under Anders
Lariche’s appointed counsel reviewed the record relating to the
resentencing (the only issue that could be appealed), and concluded that she could
not make any meritorious arguments on Lariche’s behalf. Nonetheless, she presents
the imposition of consecutive sentences as a possible assignment of error for our
Anders review.
Our review of felony sentences is under the standard provided in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. Under R.C. 2953.08(G)(2), a reviewing court may overturn the
imposition of consecutive sentences only if it clearly and convincingly finds that
1See Sims for discussion involving different Ohio appellate courts’ views on Anders
briefs, and this court’s ultimate decision that “until the Ohio Supreme Court resolves the
split among the Ohio Appellate Districts regarding the application of Anders * * *, we
decline to adopt the reasoning” of the districts that no longer accept motions to withdraw
pursuant to Anders. Id. at ¶ 14.
either (1) “the record does not support the sentencing court’s findings under R.C.
2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.”
Before a trial court may impose consecutive sentences, the court must
make specific findings mandated by R.C. 2929.14(C)(4) and then incorporate those
findings in the sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 37. The trial court is not required to state its reasons to
support its findings, nor is it required to give a rote recitation of the statutory
language. Id. “As long as the reviewing court can discern that the trial court engaged
in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
R.C. 2929.14(C)(4) authorizes the court to order consecutive service
of multiple sentences if it finds that (1) it is necessary to protect the public from
future crime or to punish the offender; (2) it is not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public; and (3) one of the following applies (a) the offender committed the offense
while awaiting trial or sentencing, under community control monitoring, or under
postrelease control for a prior offense; (b) at least two of the offenses caused harm
so great and unusual that no single term for any offense adequately reflects the
seriousness of the offender’s conduct; or (c) the offender’s history of criminal
conduct demonstrates the necessity of consecutive sentences to protect the public
from future crime. State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197,
2016-Ohio-709, ¶ 6.
In the first case (Case No. CR-575887-C), the trial court sentenced
Lariche to concurrent terms on each of the two counts, to be served consecutive to
the sentences in the other two cases (Case Nos. CR-595648-A and CR-611898-A),
and the trial court made the following findings on the record:
The Court finds [consecutive sentences] are necessary to protect the
public and punish the offender and not disproportionate to the
seriousness of the conduct, and the crimes were committed while
awaiting trial or sentencing or under sanction or under postrelease
control, and that the offender’s criminal history shows that consecutive
terms are necessary to protect the public.
The second instance in which the trial court imposed consecutive
sentences was in Case No. CR-611898-A, where it ordered the sentence on the sole
count to run consecutive to the sentences in the other two cases (Case Nos. CR-
575887-C and CR-595648-A). In doing so, the court made the following findings:
The Court finds that [consecutive sentences are] necessary to protect
the public and punish the offender and not disproportionate to the
seriousness of the conduct, and the crimes were committed while
awaiting trial or under sentencing or under sanction or under
postrelease control, and that the offender’s criminal history shows that
consecutive terms are needed to protect the public.
The findings were repeated in the trial court’s sentencing judgment
entries. Therefore, the trial court made the statutorily mandated findings for the
imposition of consecutive sentences and incorporated those findings into its
sentencing judgment entries as required under Bonnell, 140 Ohio St. 3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 37.
Upon further review, we do not find, by clear and convincing
evidence, that the record does not support the trial court’s consecutive sentence
findings, or that the sentence is otherwise contrary to law. On this record, therefore,
we find counsel’s request to withdraw well taken.
Accordingly, pursuant to Anders, counsel’s request to withdraw is
granted, and the appeal is dismissed.
Dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR