State v. Cubic

[Cite as State v. Cubic, 2020-Ohio-228.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 18CA0099-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PHILLIP CUBIC COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 17 CR 0870
DECISION AND JOURNAL ENTRY
Dated: January 27, 2020
CARR, Presiding Judge.
{¶1} Appellant, Phillip Cubic, appeals the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} On October 4, 2017, the Medina County Grand Jury returned an indictment
charging Cubic with one count of aggravated menacing in violation of R.C. 2903.21(A), a felony
of the fifth degree. Cubic initially pleaded not guilty to the charge at arraignment. Thereafter,
Cubic appeared for a change of plea hearing and entered a plea of no contest. The trial court
found Cubic guilty and imposed a three-year term of community control with a number of
sanctions. The trial court issued its sentencing entry on October 3, 2018.
{¶3} Cubic filed a timely notice of appeal.
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II.
{¶4} On February 14, 2019, Cubic’s appellate counsel filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that he had reviewed the record and concluded that
there were no assignments of error to be found in this case. Thereafter, this Court issued a
magistrate’s order striking the filing on the basis that it did not comport with the requirements for
a proper Anders brief. Appellate counsel subsequently filed an amended Anders brief and moved
to withdraw as counsel. Appellate counsel also filed a certificate of service stating that he had
served Cubic with a copy of the Anders brief, as well as a copy of the motion to withdraw. On
August 19, 2019, this Court issued a magistrate’s order affording Cubic an opportunity to raise
any points or arguments in response to the Anders brief that he considered necessary. Cubic has
not submitted additional arguments for our consideration or otherwise responded.
{¶5} In the Anders brief, Cubic’s appellate counsel identified three potential issues for
appeal, although he ultimately concluded that none of the issues presented a valid basis for
appellate review. First, appellate counsel addressed whether the indictment in this case was
sufficient to charge the offense of aggravated menacing. Second, appellate counsel explored
whether ineffective assistance of trial counsel was a possible issue. Finally, appellate counsel
examined whether Cubic’s sentence was reasonable and, further, whether it comported with the
parties’ sentencing agreement. After reviewing the record, appellate counsel determined that an
appeal predicated on any of the aforementioned issues would be wholly frivolous.
{¶6} Upon this Court’s own thorough, independent examination of the record before
us, we conclude that there are no appealable, non-frivolous issues in this case. See State v.
Kosturko, 9th Dist. Summit No. 26676, 2013-Ohio-2670, ¶ 5; State v. Randles, 9th Dist. Summit
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No. 23857, 2008-Ohio-662, ¶ 6. It follows that we grant appellate counsel’s motion to withdraw
and affirm the judgment of the Medina County Court of Common Pleas.
III.
{¶7} Upon a full review of the record, we conclude that Cubic’s appeal is meritless and
wholly frivolous pursuant to Anders. Appellate counsel’s motion to withdraw as appellate
counsel is hereby granted. The judgment of the Medina 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 Medina, 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.
DONNA J. CARR
FOR THE COURT
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HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
KRISTOPHER K. AUPPERLE, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, for Appellee.