State v. Wonders , 2017 Ohio 7268 ( 2017 )

[Cite as State v. Wonders, 2017-Ohio-7268.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 17-CA-12
:
JASON M. WONDERS, JR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 15 CR 003
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 15, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
NATE HURST ROBERT C. BANNERMAN
Assistant Prosecuting Attorney P.O. Box 77466
Licking Co. Prosecutor’s Office Columbus, OH 43207-0098
20 S. Second St., 4th Floor
Newark, OH 43055
Licking County, Case No. 17-CA-12 2
Delaney, P.J.
{¶1} Appellant Jason M. Wonders, Jr. appeals from his conviction and sentence
upon one count of burglary following a plea of guilty. Appellate counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967),
asserting he found no potential assignments of error having arguable merit. We have
performed our duty, under Anders, to review the record independently, and we also find
no potential assignments of error having arguable merit. See, State v. Parrish, 2nd Dist.
Montgomery No. 25599, 2013-Ohio-5622, ¶ 1.
{¶2} Appellee is the state of Ohio and did not appear.
FACTS AND PROCEDURAL HISTORY
{¶3} The following facts are adduced from the record of the change-of-plea
hearing on April 3, 2017.
{¶4} On December 18, 2014, someone forced entry into a residence in Newark,
Ohio and stole a .357 handgun, an X-Box 360, a laptop computer, video games, movies,
and a black duffel bag. The homeowner provided Newark police with the name of a
suspect, appellant, and an investigation was launched. Police discovered appellant sold
some of the stolen video games at “Bryan’s Video Trader” in Heath, Ohio. During an
interview with a detective, appellant admitted he entered the home with a drawstring bag
to steal items, but the bag he brought with him was too small so he stole the black duffel
bag to transport the stolen items. Appellant returned the laptop and the X-Box. Appellee
stated appellant was also helpful in identifying the person now in possession of the stolen
handgun.
Licking County, Case No. 17-CA-12 3
{¶5} Appellant waived prosecution by indictment and was charged by bill of
information with one count of burglary pursuant to R.C. 2911.12(A)(3), a felony of the third
degree.
{¶6} On March 9, 2015, appellant entered a counseled plea of guilty as charged
and the trial court imposed a 5-year term of community control.
{¶7} On March 10, 2016, appellee filed a motion to revoke appellant’s community
control due to numerous violations of conditions, including, e.g., drug use and failure to
report to probation officers and treatment programs.
{¶8} On March 14, 2016, appellee moved to dismiss revocation proceedings
against appellant because he was placed in a halfway house. The trial court granted the
motion to dismiss; successful completion of the halfway house program was added as a
condition of appellant’s community control.
{¶9} On May 13, 2016, appellee again moved to revoke appellant’s community
control on the same grounds, in addition to appellant’s unsuccessful termination from the
halfway house. A magistrate found probable cause to continue revocation proceedings
and counsel was appointed.
{¶10} On June 1, 2016, appellant appeared before the trial court, waived his right
to a hearing and admitted violating the conditions of community control. The trial court
thereupon imposed a prison term of one year and a discretionary 3-year period of post-
release control.
{¶11} On December 30, 2016, appellee filed a motion for post-release control
resentencing, noting appellant’s burglary conviction required a mandatory 3-year period
of post release control pursuant to R.C. 2967.28(B)(3). The trial court again appointed
Licking County, Case No. 17-CA-12 4
counsel for appellant and scheduled a hearing via video conference pursuant to R.C.
2929.191(C).
{¶12} On January 20, 2017, appellant filed a motion to dismiss and memorandum
in opposition to resentencing. Also on that date, the trial court overruled the motion to
dismiss and re-imposed the one-year prison term with a mandatory 3-year period of post
release control.
{¶13} Appellant now appeals from his conviction and sentence. Appellate counsel
has filed a brief pursuant to Anders, supra, stating that he can find no potential
assignments of error having arguable merit. By entry filed on May 26, 2017, appellant
was advised that an Anders brief had been filed on his behalf, and he was advised to file
his own pro se brief on or before June 21, 2017. Appellant has not filed a pro se brief.
{¶14} Appellate counsel raised the following sole assignment of error:
ASSIGNMENT OF ERROR
{¶15} “COUNSEL MOVES THIS COURT TO CONDUCT AN INDEPENDENT
REVIEW OF THE RECORD IN ACCORDANCE WITH ANDERS V. CALIFORNIA, 386
U.S. 738 (1967) TO DETERMINE WHETHER PREJUDICIAL ERROR OCCURRED.”
ANALYSIS
{¶16} In Anders, the United States Supreme Court held that 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
Licking County, Case No. 17-CA-12 5
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.{¶17} Counsel in this matter has followed the procedure in Anders. In the brief,
counsel acknowledges the trial court’s actions in resentencing appellant to impose the
mandatory term of post-release control complies with the decisions of the Ohio Supreme
Court in, e.g., State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 and
State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382.
{¶18} An appeal is wholly frivolous if the record is devoid of any legal points
arguable on the merits. State v. Middaugh, 5th Dist. Coshocton No. 02 CA 17, 2003-Ohio-
91, ¶ 13. If the appellate court determines the appeal is frivolous, it may then grant
counsel's request to withdraw and then dismiss the appeal without violating any
constitutional requirements, or the court can proceed to a decision on the merits if state
law requires it. Anders at 744.
{¶19} In this case, the requirements in Anders have been satisfied. Upon our
independent review of 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. See, State v. Hill, 5th Dist.
Licking County, Case No. 17-CA-12 6
Licking No. 15-CA-13, 2016-Ohio-1214, ¶ 20, appeal not allowed, 147 Ohio St.3d 1412,
2016-Ohio-7455, 62 N.E.3d 185.
CONCLUSION
{¶20} Counsel’s motion to withdraw is granted. The judgment of the Licking
County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Wise, John, J. and
Wise, Earle, J., concur.