Cleveland v. Brewer

[Cite as Cleveland v. Brewer, 2020-Ohio-1380.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, : No. 108365
v. :
JORDAN BREWER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: April 9, 2020
Criminal Appeal from the Cleveland Municipal Court
Case No. 2018-CRB-009423
Appearances:
Scalise Legal Services, L.L.C., and Stephanie B. Scalise, for
appellant.
ANITA LASTER MAYS, J.:
On June 14, 2018, the trial court found defendant-appellant Jordan
Brewer (“Brewer”) guilty of domestic violence, a first-degree misdemeanor, in
violation of R.C. 2919.25; unlawful restraint, third-degree misdemeanor, in
violation of Cleveland Codified Ordinances (“CCO”) 621.08; and endangering
children, first-degree misdemeanor, in violation of CCO 609.04. Jordan received a
suspended sentence of 180 days.
Counsel appointed to represent Brewer in the instant appeal has filed
a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), and requested leave to withdraw as counsel. Anders held that where, after a
conscientious examination of the case, appellate counsel is unable to find any
meritorious issues for review, then counsel should inform the court and request
permission to withdraw from the case. Id. at 744. In addition, the request must 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.Counsel offers that there are no meritorious arguments in this case,
and asks this court to permit her to withdraw and grant additional time for Brewer
to submit his own brief, or retain alternate counsel to do so on his behalf. Brewer
was afforded an opportunity to file a pro se brief in this appeal on or before
October 7, 2019. As of this writing, Brewer has not filed a brief. After a thorough
review of the record, we grant counsel’s motion to withdraw and dismiss this appeal.
I. Discussion of Potential Assignment of Errors
A. Dual Representation
Counsel identified a possible assignment of error regarding dual
representation but then determined it would have been meritless. Brewer and his
codefendant were represented by the same attorney at trial. “In situations like this,
where no objection is raised to the court regarding the joint representation,
appellant ‘must demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance.’” State v. Clark, 8th Dist. Cuyahoga No. 87938, 2007-Ohio-
713, ¶ 12, citing Cuyler v. Sullivan, 446 U.S. 348, 100 S.Ct. 1718, 64 L.Ed.2d 333(1980).
The trial court advised Brewer and his codefendant of their right to
separate counsel. The trial court stated,
Each of you understands that you could have separate attornies [sic]
that should your legal interests take separate paths, that is, there
could be a conflict of interest for the one attorney representing you?
And it’s my understanding that this has been explained to you and that
you are currently waiving any conflict that could exist in that you are,
you know, comfortable with having Mr. Kochis represent each of you
in this proceeding * * *.
(Tr. 4.) Both defendants replied that there were waiving any conflict.
There is nothing in the record that demonstrates that Brewer was
prejudiced or adversely affected by the dual representation of Brewer and his
codefendant. Therefore, Brewer was not prejudiced by ineffective assistance of
counsel.
B. Sufficiency of the Evidence
Counsel also considered whether Brewer may be able to successfully
challenge the sufficiency of the evidence. “When performing a sufficiency inquiry,
an appellate court does not assess whether the state’s evidence is to be believed but
whether, if believed, the evidence admitted at trial supported the conviction.”
State v. Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, ¶ 20.
According to counsel, the city presented testimony of the complaining
victim, which was nearly identical to that of the second witness. Photographic
evidence of the victim’s injuries was also entered into the record. The evidence
admitted at trial supported the elements of the convictions and therefore, the
evidence was sufficient to convict Brewer. Our independent review of this potential
error concluded that a challenge to sufficiency would have been futile.
C. Manifest Weight of the Evidence
Brewer could also challenge the manifest weight of the evidence.
Manifest weight is a question of fact. State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). In a manifest weight analysis, an appellate court “reviews
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and * * * resolves conflicts in the evidence.” Id.Counsel, in her brief, notes that the prosecution presented two
witnesses: the victim and the relative. Both witnesses testified to the events that
occurred and their testimonies were consistent. A police officer also testified that
the victim’s testimony and police report were consistent. In contrast, the appellant
and his codefendant testified to a competing version of events. The trial court
determined that the victim, the witness, and the police officer’s testimonies were
more consistent. The record does not demonstrate that the trial court “clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.” Cleveland v. Clunk, 8th Dist. Cuyahoga No.
97889, 2012-Ohio-4059, ¶ 13. Therefore, the manifest weight of the evidence
supported Brewer’s convictions.
D. Sentencing
Brewer was sentenced to 180 days in jail on the domestic violence
charge, and the trial court elected not to sentence him to jail time on the other two
counts. The trial court suspended 179 days of the 180 day sentenced, and gave
Brewer one-day credit for time served. Brewer was ordered to pay a $50 fine, and
was placed on probation for two years.
Brewer’s sentence was well within the statutory range of sentencing,
which is governed by R.C. 2929.24.
If the sentencing court imposing a sentence upon an offender for a
misdemeanor elects or is required to impose a jail term on the
offender pursuant to this chapter, the court shall impose a definite jail
term that shall be one of the following:
(1) For a misdemeanor of the first degree, not more than one
hundred eighty days;
(2) For a misdemeanor of the second degree, not more than
ninety days;
(3) For a misdemeanor of the third degree, not more than
sixty days;
(4) For a misdemeanor of the fourth degree, not more than
thirty days.
R.C. 2929.24(A).
Therefore, Brewer was not prejudiced by the guilty verdict or a
sentence that is contrary to law.
As required by Anders, this court has completed a full examination of
all the proceedings. We conclude that there are no arguable legal points on the
merits of this matter. We determine that this appeal is wholly frivolous pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Counsel’s request
to withdraw is granted, and we dismiss this appeal.
Judgment is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
________________________________
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR