State v. Fine

[Cite as State v. Fine, 2017-Ohio-7013.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 16CA010917
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ALBERT C. FINE COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 12CR086127
DECISION AND JOURNAL ENTRY
Dated: July 31, 2017
TEODOSIO, Judge.
{¶1} Appellant, Albert Fine, appeals from his convictions in the Lorain County Court
of Common Pleas. We affirm.
I.
{¶2} According to his own lengthy confession to Lorain police officers, Mr. Fine
viciously attacked, murdered, and dismembered his girlfriend, C.H., in June of 2012. He cut off
one of her arms with a butcher knife and discarded it in a dumpster. He cut off her legs with a
hand saw and stored her remains in a large, plastic tote. He moved the tote several times in their
apartment and eventually glued it shut and left it in the apartment’s storage unit. He posed as
C.H. on Facebook and through her cell phone, used her ATM card, and later moved her car on
two occasions to make it appear as though she “took off.”
{¶3} C.H.’s family soon reported her missing. One day after speaking to FBI agents,
Mr. Fine fled to Kentucky. C.H.’s remains were discovered and Mr. Fine was tracked down and
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arrested the next day. Lorain police officers traveled to Kentucky and obtained a waiver of his
rights and confession from Mr. Fine. He fought extradition, but was returned to Ohio by a
Governor’s warrant in October of 2012.
{¶4} Mr. Fine was indicted on two counts of aggravated murder, each with two death
specifications, two counts of murder, three counts of kidnapping, aggravated robbery, felonious
assault, two counts of tampering with evidence, three counts of theft, misuse of credit cards, and
two counts of abuse of a corpse. On the day before trial, he pled guilty to an amended
indictment and agreed to a sentence of life in prison without the possibility of parole in exchange
for the State dismissing the death specifications. He waived all appellate review and collateral
attacks on the convictions. The trial court accepted Mr. Fine’s guilty pleas, found him guilty,
and sentenced him to life in prison without the possibility of parole.
{¶5} The trial court appointed appellate counsel and Mr. Fine timely appealed.
II.
{¶6} Mr. Fine’s appellate counsel filed a brief on behalf of Mr. Fine pursuant to Anders
v. California, 386 U.S. 738 (1967). In Anders, the United States Supreme Court stated:
[I]f counsel finds his case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to
withdraw. That request must, however, be accompanied by a brief referring to
anything in the record that might arguably support the appeal. A copy of
counsel’s brief should be furnished the indigent and time allowed him to raise any
points that he chooses; the court—not counsel—then proceeds, after a full
examination of all the proceedings, to decide whether the case is wholly frivolous.
If it so finds it may grant counsel’s request to withdraw and dismiss the appeal
insofar as federal requirements are concerned, or proceed to a decision on the
merits, if state law so requires. On the other hand, if it finds any of the legal
points arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.
Id. at 744.
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{¶7} Mr. Fine’s counsel asserts that there are no non-frivolous issues for appeal and
asks to withdraw as counsel of record in this matter. This Court issued a magistrate’s order to be
served upon Mr. Fine, affording him twenty days to file a response raising any points he felt
were necessary. Mr. Fine filed a letter pro se claiming ineffective assistance of appellate counsel
and requesting new counsel to be appointed.
{¶8} Mr. Fine’s appellate counsel asserts that he made a conscientious examination of
the entire case. He has specifically identified several issues that he researched and reviewed,
including: (1) the waiver of appellate rights; (2) the waiver of prosecutorial misconduct and
ineffective assistance of counsel; (3) limitations on ineffective assistance appeals; (4) subject
matter jurisdiction; (5) competency; (6) plea colloquy; (7) whether a life sentence was proper; (8)
imposition of court costs; (9) prosecutorial misconduct; (10) the acceptance of a guilty plea by a
single judge after the assignment of a three-judge panel; and (11) counsel’s failure to file a
motion to suppress based on a right to counsel under the Sixth Amendment. Counsel’s brief
examines the relevant law regarding each issue and how it applies to Mr. Fine’s case, and
concludes that none of the issues present a basis for appellate review.
{¶9} Counsel ultimately lists two potential assignments of error that Mr. Fine could
possibly argue on appeal, but believes them to be wholly frivolous. First, the death penalty in
this case is an equal protection violation because it allows the State to arbitrarily decide on
harsher penalties. However, the Supreme Court of Ohio has previously addressed and rejected
this argument. See, e.g., State v. Brown, 38 Ohio St.3d 305, 320 (1988). Second, due to the
death of Justice Scalia, counsel suggests that Mr. Fine could possibly argue that the holding in
Jackson should be reaffirmed by the United States Supreme Court. See Michigan v. Jackson,
475 U.S. 625 (1986), overruled Montejo v. Louisiana, 556 U.S. 778 (2009).
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{¶10} Mr. Fine filed a letter pro se claiming ineffective assistance of appellate counsel
and requesting new counsel to be appointed. However, “claims relating to the ineffective
assistance of appellate counsel cannot be made on direct appeal.” City of Akron v. Jones, 9th
Dist. Summit No. 19428, 2001 WL 22301, *2 (Jan. 10, 2001), citing App.R. 26(B).
{¶11} Based upon this Court’s own full, independent examination of the record before
us, we agree with appellate counsel and conclude that there are no appealable, non-frivolous
issues in this case. See State v. Randles, 9th Dist. Summit No. 23857, 2008-Ohio-662, ¶ 6; State
v. Lowe, 9th Dist. Lorain No. 97CA006758, 1998 WL 161274, *2 (Apr. 8, 1998). Accordingly,
we grant appellate counsel’s motion to withdraw as counsel of record and affirm the judgment of
the Lorain County Court of Common Pleas.
III.
{¶12} Appellate counsel’s motion to withdraw as counsel of record is granted. The
judgment of the Lorain County Court of Common Pleas 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 Lorain, 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
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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.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JOHN D. TOTH, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, for Appellee.