State v. Gilbert

[Cite as State v. Gilbert, 2022-Ohio-602.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30085
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RYAN GILBERT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2020-05-1231
DECISION AND JOURNAL ENTRY
Dated: March 2, 2022
SUTTON, Judge.
{¶1} Defendant-Appellant, Ryan Gilbert, appeals his conviction and sentence
following a guilty plea taken by the Summit County Court of Common Pleas. This Court
affirms.
I.
Relevant Background
{¶2} The present appeal arises from an incident at Circle K where Mr. Gilbert punched
J.J., the mother of his child, twice in the face. After engaging in a plea colloquy with the trial
court, pursuant to Crim.R. 11, Mr. Gilbert pleaded guilty to domestic violence, in violation of
R.C. 2919.25(A) and R.C. 2919.25(D)(3), a felony of the fourth degree. Although the State
recommended prison time, the trial court sentenced Mr. Gilbert to: (1) 30 months community
control; (2) an additional 9 months in the Residential Institutional Probation Program at Oriana
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House; (3) a reserved prison sentence up to 18 months; and (4) a continued protection order for
the victim.
{¶3} On September 8, 2021, this Court granted Mr. Gilbert leave to file a delayed
appeal. Mr. Gilbert’s counsel, pursuant to Anders v. California, 386 U.S. 738 (1967), then filed
a motion for leave to withdraw accompanied by an Anders brief. Consistent with the guidelines
set forth in Anders, Mr. Gilbert’s counsel asserted that, after a review of the record, he was
unable to find any issues that might support an appeal. Anders at 744. The record reveals Mr.
Gilbert was served with a copy of his counsel’s brief, and this Court afforded Mr. Gilbert the
opportunity to raise arguments after review of the Anders brief. Mr. Gilbert, however, has not
responded to his counsel’s Anders brief or raised any additional arguments for our review.
II.
ASSIGNMENT OF ERROR
[MR.] GILBERT’S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY,
OR VOLUNTARILY ENTERED INTO[.]
{¶4} Upon the filing of an Anders brief, this Court conducts a full examination of the
proceedings to decide whether the case is “wholly frivolous.” State v. Baldwin, 9th Dist. Summit
No. 291765, 2019-Ohio-2542, ¶ 4.
Anders equates a frivolous appeal with one that presents issues lacking in
arguable merit. An issue does not lack arguable merit merely because the
prosecution can be expected to present a strong argument in reply or because it is
uncertain whether an appellant will ultimately prevail on that issue on appeal. “An
issue lacks arguable merit if, on the facts and law involved, no responsible
contention can be made that it offers a basis for reversal.”
Id., quoting State v. Moore, 2d Dist. Greene No. 07-CA-97, 2009-Ohio-1416, ¶ 4, quoting State
v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. “If this Court’s independent
review reveals that any issue presented is not wholly frivolous or that there are other arguable
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issues, we must appoint different appellate counsel to represent the appellant.” Id. at ¶ 4, citing
Pullen at ¶ 2.
{¶5} In the Anders brief, counsel identified one possible issue for appeal, but
concluded it was not viable. Specifically, counsel stated:
[Mr. Gilbert] wanted probation for his plea of guilt. * * * The [c]ourt advised [Mr.
Gilbert] that no attorney could make that guarantee. * * * At sentencing the
[c]ourt imposed probation, however, the [c]ourt added nine months [in the
Residential Institutional Probation Program] as another condition of [Mr.
Gilbert’s] sentence. * * *
However, the [c]ourt inquired of [Mr. Gilbert] extensively and made sure it had
gone over [Mr. Gilbert’s] rights, prior to [Mr. Gilbert] entering his plea. Thus,
this assignment of error is without merit.
{¶6} Subsequent to this Court’s own full, independent examination of the record,
including the plea and sentencing transcripts, we agree there are no appealable, non-frivolous
issues in this case. See Baldwin at ¶ 8; see also State v. Randles, 9th Dist. Summit No. 23857,
2008-Ohio-662, ¶ 6. Thus, pursuant to Anders, supra, Mr. Gilbert’s appeal is meritless and
wholly frivolous.
{¶7} Accordingly, this Court grants Mr. Gilbert’s counsel’s motion to withdraw and
affirms the judgment of the Summit County Court of Common Pleas.
III.
{¶8} For the reasons stated above, Mr. Gilbert’s counsel’s motion to withdraw is
granted. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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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(C). 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.
BETTY SUTTON
FOR THE COURT
TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
WESLEY C. BUCHANAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE CORGAN, Assistant
Prosecuting Attorney, for Appellee.