State v. Whiting

[Cite as State v. Whiting, 2016-Ohio-3181.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103765
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
NIESHA P. WHITING
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-595765-A
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: May 26, 2016
ATTORNEY FOR APPELLANT
Mary Elaine Hall
245 Leader Building
526 Superior Avenue, East
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Carl Mazzone
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
Also listed:
Neisha Whiting
Ohio Reformatory for Women
1479 Collins Avenue
Marysville, Ohio 43040
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Niesha Whiting, appealed the trial court’s judgment in
Cuyahoga C.P. No. CR-15-595765-A. Appointed counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1997), and has moved
for leave to withdraw as counsel pursuant to Loc.App.R. 16.
{¶2} In Anders, the United States Supreme Court held that if counsel thoroughly
reviews the record and concludes that the appeal is “wholly frivolous,” counsel may
advise the court of that fact and request permission to withdraw from the case. Anders at
744. However, counsel’s request to withdraw must “be accompanied by a brief referring
to anything in the record that might arguably support the [a]ppeal.” Id. Counsel must
also furnish a copy of the brief to his client in sufficient time to allow the appellant to file
his own brief, pro se. Id.
{¶3} In this case, appointed counsel complied with the requirements of Anders and
Loc.R. 16(C). This court granted Whiting until March 18, 2016, to file a pro se brief.
Whiting did not file a pro se brief.
{¶4} In her Ander’s brief, appellate counsel set forth the following potential
assignment of error:
Whether the trial court imposed a two year consecutive sentence upon the
defendant-appellant, Niesha Whiting contrary to law?
{¶5} As part of the independent review, this court has examined and considered
the potential arguments identified in counsel’s Anders brief. In addition, this court has
conducted an independent examination of the relevant portions of the sentencing
transcript to determine if any arguably meritorious issues exist. Anders, 386 U.S. at 744,
87 S.Ct.1396, 18 L.Ed.2d 493.
{¶6} Anders instructs that if the appellate court determines that the appeal would
be “wholly frivolous” (that there are no legal points of arguable merit), “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.” Anders, 386
U.S. at 744. If, however, the court finds any legal points arguable on their merits, it
must afford the appellant assistance of counsel before deciding the merits of the case. Id.{¶7} Upon a complete review of the record, this court agrees that the potential
assignment of error advanced by appellate counsel is without merit and has found no
other error of arguable merit that resulted in prejudice to Whiting. The motion of
appointed counsel to withdraw is granted. This appeal is dismissed in accordance with
Anders.
{¶8} Appeal dismissed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR