State v. Green

[Cite as State v. Green, 2018-Ohio-2378.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170477
TRIAL NO. B-1703156
Plaintiff-Appellee, :
vs. : O P I N I O N.
RAFEVEL GREEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Motion to Withdraw as Counsel for Appellant is
Granted, New Counsel for Appellant is Appointed,
Further Briefing is Ordered, and Appeal is
Ordered to be Resubmitted
Date of Judgment Entry on Appeal: June 20, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Brian T. Goldberg, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Following guilty pleas, Rafevel Green was convicted of having a
weapon while under a disability, trafficking in cocaine, trafficking in heroin,
aggravated possession of drugs, and child endangering. Green’s appointed appellate
counsel has filed a no-error brief in accordance with Loc.R. 16.2 following the
procedures identified in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967).
{¶2} Counsel has advised this court that, after a thorough review of the
record, he has found nothing that would arguably support Green’s appeal, and that
the appeal is wholly frivolous. See id. Counsel has communicated his conclusion to
Green and has offered him an opportunity to respond and to raise any issues. Green
has not done so. Counsel has, therefore, moved for permission to withdraw as
counsel. See Anders at 744; see also 1st Dist. Loc.R. 16.2(C)(1) and 16.2(D)(2).
{¶3} Counsel now requests that this court independently examine the
record to determine whether the appeal is wholly frivolous. See Anders at 744. If we
determine that the appeal is wholly frivolous, we may proceed to a decision on the
merits. See In re Booker, 133 Ohio App. 3d 387, 390, 728 N.E.2d 405 (1st Dist.1999),
citing Anders at 744. If, however, we conclude that “any legal points arguable on
their merits and prejudicial to the defendant exist, we must ensure, prior to decision,
that the indigent defendant receives the assistance of counsel to argue the appeal.”
State v. Gilbert, 1st Dist. No. C-110382, 2012-Ohio-1366, ¶ 6, citing Booker at 390-
391.
{¶4} Based on our review of the record and the applicable law, we cannot
say that Green’s appeal is wholly frivolous. We find that an arguable issue exists as
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OHIO FIRST DISTRICT COURT OF APPEALS
to the validity of Green’s guilty pleas where the trial court failed to notify him of his
constitutional right to confront his accusers. See State v. Veney, 120 Ohio St. 3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 19, 29.
{¶5} Because legal points arguable on their merits remain to be resolved,
this court cannot now, without the assistance of counsel to argue these matters for
Green, and without the state’s response, reach a decision on the merits of the appeal.
See Gilbert at ¶ 9, citing Anders, 386 U.S at 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493. We,
therefore, grant counsel’s motion to withdraw. We appoint attorney Scott A.
Rubenstein, Attorney Registration Number 0071655, to serve as counsel for Green.
We order him to present, in accordance with App.R. 12 and 16(A), an assignment of
error on the issue of the validity of Green’s guilty plea, and on any other matter that
counsel may discover in a diligent review of the record.
{¶6} We further order new counsel to file a brief on or before July 16, 2018,
2018, and counsel for the state to file a responsive brief on or before August 16, 2018.
Judgment accordingly.
CUNNINGHAM, P.J. and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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