Cleveland v. Brewer

2020 Ohio 1380

• Court: Ohio Court of Appeals
• Decided: April 9, 2020
• Docket: 108365
• Status: Published

Opinion

[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