State v. Kocak

[Cite as State v. Kocak, 2017-Ohio-945.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 15 MA 0173
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ANDREW KOCAK )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 14 CR 915C
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Ryan D. Ingram
7330 Market Street
Youngstown, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: March 15, 2017
[Cite as State v. Kocak, 2017-Ohio-945.]
WAITE, J.
{¶1} Appellant Andrew Kocak appeals a September 10, 2015 Mahoning
County Common Pleas Court judgment entry finding him guilty of violating his
probation and reimposing his original sentence. Appellant’s counsel filed a no merit
brief requesting leave to withdraw. A complete review of the case reveals no
appealable issues. Accordingly, appointed counsel’s motion to withdraw is granted
and the convictions and sentence are affirmed.
Factual and Procedural History
{¶2} On September 18, 2014, Appellant was indicted on the following
charges: endangering children, a felony of the second degree in violation of R.C.
2919.22(B)(1)(E), (1)(d); corrupting another with drugs, a felony of the fourth degree
in violation of R.C. 2925.02(A)(4)(a), (C)(3), felonious assault, a felony of the second
degree in violation of R.C. 2903.11(A)(1), (D), and two counts of intimidation, felonies
of the third degree in violation of R.C. 2921.04(B)(2), (D). Pursuant to a Crim.R. 11
plea agreement, Appellant pleaded guilty to all charges. According to the agreement,
Appellant would be eligible for judicial release after six months and the state agreed
to stand silent regarding judicial release.
{¶3} The trial court imposed the following sentence: three years of
incarceration for endangering children, eighteen months on the corrupting another
with drugs count, three years for felonious assault, and one year of incarceration on
each intimidation count. The trial court ordered the sentences to run concurrently
and concurrent to Appellant’s sentence in case number 13 CR 1172. Hence, the trial
court imposed an aggregate sentence of three years of incarceration.
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{¶4} On May 7, 2015, Appellant filed a motion for judicial release; as per the
plea agreement, the state stood silent. On July 24, 2015, the trial court held a
hearing on the motion. On July 29, 2015, the trial court sustained Appellant’s motion
and imposed a five-year community control period. The trial court’s entry stated that
it would reimpose the original sentence if Appellant violated his community control.
{¶5} On August 3, 2015, the state filed a motion to extend or revoke
Appellant’s probation. Appellant stipulated to probable cause and was found guilty of
a probation violation. On September 10, 2015, the trial court reimposed Appellant’s
three-year sentence, with credit for 335 days served. This timely appeal followed.
No Merit Brief
{¶6} Based on a review of this matter, appellate counsel seeks to withdraw
after finding no potentially meritorious arguments for appeal. This filing is known as a
no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967). In our district, it is referred to as a Toney brief. See
State v. Toney, 23 Ohio App. 2d 203, 262 N.E.2d 419 (7th Dist.1970).
{¶7} In Toney, this Court established the procedure to be used when
appellate counsel wishes to withdraw from a case deemed a frivolous appeal.
3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is
frivolous and that there is no assignment of error which could be
arguably supported on appeal, he should so advise the appointing court
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by brief and request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
***
7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as
counsel of record should be allowed, and the judgment of the trial court
should be affirmed.
Id. at syllabus.
{¶8} On January 15, 2016, appellate counsel filed the no merit brief in this
matter. On February 1, 2016, we filed a judgment entry informing Appellant that his
counsel had filed a no merit brief and giving him thirty days to file his own brief.
Appellant failed to file a brief in this matter. Accordingly, we must independently
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examine the record to determine whether there are any potentially meritorious issues
in this matter.
Judicial Release
{¶9} “The court, in its discretion, may revoke the judicial release if the
offender violates the community control sanction described in division (R)(1) of this
section.” R.C. 2929.20(R)(2). On August 3, 2015, the state filed a motion to revoke
Appellant’s probation. Appellant stipulated to probable cause. On September 3,
2015, the trial court held a probation revocation hearing. As a probation revocation
hearing is not a criminal trial, the state need not prove a violation beyond a
reasonable doubt. State v. Harris, 7th Dist. No. 11 MA 51, 2012-Ohio-1304, ¶ 13,
citing State v. Delaine, 7th Dist. No. 08 MA 257, 2010-Ohio-609, ¶ 14; State v.
Hylton, 75 Ohio App. 3d 778, 782, 600 N.E.2d 821 (4th Dist.1991). Instead, the state
must present “substantial proof that a defendant violated the terms of his community
control sanction.” Harris at ¶ 13.
{¶10} At the hearing, Appellant admitted to stealing the following items from
his mother: a car, an iPad, three television sets, and $40. He also admitted that he
bought and ingested heroin in an attempt to kill himself. Although he denied
threatening or attempting to harm the victims, his drug use and theft crimes constitute
substantial evidence of a probation violation. Based on Appellant’s admissions, the
trial court did not abuse its discretion in revoking Appellant’s judicial release. Thus,
there are no appealable issues regarding the revocation of Appellant’s judicial
release.
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Sentencing
{¶11} Pursuant to R.C.2929.20(K):
If the court grants a motion for judicial release under this section, the
court shall order the release of the eligible offender, shall place the
eligible offender under an appropriate community control sanction,
under appropriate conditions, and under the supervision of the
department of probation serving the court and shall reserve the right to
reimpose the sentence that it reduced if the offender violates the
sanction. (Emphasis added.)
{¶12} The trial court’s July 29, 2015 judgment entry stated that “[t]he
Defendant was further advised that should he violate any term or condition of his
Community Control Sanction, this court would send him back to the penitentiary for
the remainder of his sentence.” (Emphasis deleted.) (7/29/15 J.E., p. 1.) Thus,
pursuant to R.C. 2929.20(K), the trial court reserved the right to reimpose Appellant’s
original sentence if he violated his community control. As such, the trial court
properly reimposed Appellant’s original sentence. Thus, there are no appealable
issues as to Appellant’s sentence.
Conclusion
{¶13} Appellate counsel seeks to withdraw as a review of the record did not
reveal any potentially meritorious arguments. For the reasons provided, this record
reveals no potentially meritorious arguments. Accordingly, counsel’s motion to
withdraw is granted and the judgment of the trial court is affirmed.
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Donofrio, J., concurs.
Robb, P.J., concurs.