State v. Baldwin

2019 Ohio 2542

• Court: Ohio Court of Appeals
• Decided: June 26, 2019
• Docket: 29176
• Status: Published

Opinion

[Cite as State v. Baldwin, 2019-Ohio-2542.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29176

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MALIK S. BALDWIN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2017-11-3938

DECISION AND JOURNAL ENTRY

Dated: June 26, 2019

CALLAHAN, Judge.

{¶1} Appellant, Malik Baldwin, appeals his sentence following a guilty plea. His

appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Mr.

Baldwin responded by proposing three issues for this Court’s review. Having independently

reviewed the record, counsel’s Anders brief, and the issues proposed by Mr. Baldwin, this Court

grants counsel’s motion to withdraw and affirms the judgment of the Summit County Court of

Common Pleas.

I.

{¶2} Mr. Baldwin pleaded guilty to one count of voluntary manslaughter in violation of

R.C. 2903.03(A), with an attendant firearm specification, and one count of kidnapping in

violation of R.C. 2905.01(A)(2). His written plea agreement reflected an agreed sentence

consisting of a ten-year prison term for the voluntary manslaughter conviction, a three-year

prison term for the firearm specification, and a seven-year prison term for the kidnapping 2

conviction. The plea agreement provided that all of the prison terms would be served

consecutively “for [a] 20 year total” term. The trial court sentenced Mr. Baldwin in accordance

with the plea agreement.

{¶3} This Court granted Mr. Baldwin leave to file a delayed appeal. Appointed

counsel filed a motion for leave to withdraw accompanied by an Anders brief. Consistent with

the guidelines in Anders, counsel asserted that, after a review of the record, he was unable to find

any issues that might support an appeal. Anders, 386 U.S. at 744. Mr. Baldwin responded,

proposing three issues that he alleged were not wholly frivolous. The State of Ohio filed a

response to Mr. Baldwin’s brief.

II.

{¶4} Upon the filing of an Anders brief, this Court conducts a full examination of the

proceedings to decide whether the case is wholly frivolous. Id. One court has elaborated on

the nature of a “frivolous” appeal for Anders purposes:

Anders equates a frivolous appeal with one that presents issues lacking in arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply or because it is uncertain whether an appellant will ultimately prevail on that issue on appeal. “An issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.”

State v. Moore, 2d Dist. Greene No. 07-CA-97, 2009-Ohio-1416, ¶ 4, quoting State v. Pullen, 2d

Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. If this Court’s independent review reveals

that any issue presented is not wholly frivolous or that there are other arguable issues, we must

appoint different appellate counsel to represent the appellant. Pullen at ¶ 2.

{¶5} Mr. Baldwin has suggested that there are three non-frivolous issues for appeal:

that the trial court committed plain error by failing to merge his sentences for voluntary

manslaughter and kidnapping, that trial counsel provided ineffective assistance by failing to 3

advise him that his sentences would not merge, and that his guilty plea was not knowing and

voluntary as a result.

{¶6} The failure to merge allied offenses can be raised after a guilty plea if not

affirmatively waived. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 20, citing

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 29. Such a failure may also constitute

plain error, but the appellant must demonstrate that as the result of the alleged error, the outcome

of the proceeding would have been different. See Rogers at ¶ 3 (“[A]n accused has the burden to

demonstrate a reasonable probability that the convictions are for allied offenses of similar import

committed with the same conduct and without a separate animus; absent that showing, the

accused cannot demonstrate that the trial court’s failure to inquire whether the convictions merge

for purposes of sentencing was plain error.”).

{¶7} In this case, the record does not contain any information from which this Court

could determine whether the offenses at issue were allied. See generally State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, paragraphs one and three of the syllabus. The record therefore

demonstrates neither plain error nor ineffective assistance of counsel. See Rogers at ¶ 22 (noting

that in demonstrating plain error, “[t]he accused is * * * required to demonstrate a reasonable

probability that the error resulted in prejudice—the same deferential standard for reviewing

ineffective assistance of counsel claims.”) (Emphasis in original.). Mr. Baldwin’s written plea

agreement also clearly contemplated that he would serve three consecutive prison sentences

totaling twenty years, so the record does not demonstrate that his plea was not knowing and

voluntary.

{¶8} Upon this Court’s own full, independent examination of the record, we agree that

there are no appealable, non-frivolous issues in this case. See State v. Randles, 9th Dist. Summit 4

No. 23857, 2008-Ohio-662, ¶ 6; citing State v. Lowe, 9th Dist. Lorain No. 97CA006758, 1998

WL 161274, *3 (Apr. 8, 1998). Accordingly, we grant appellate counsel’s motion to withdraw

and affirm the judgment of the Summit County Court of Common Pleas.

III.

{¶9} Having reviewed the entire record and having found that no non-frivolous

appealable issues exist, we conclude that Mr. Baldwin’s appeal is meritless and wholly frivolous

under Anders. Mr. Baldwin’s appellate counsel’s motion to withdraw as counsel is hereby

granted. The judgment of the Summit 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 Summit, 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.

LYNNE S. CALLAHAN FOR THE COURT 5

TEODOSIO, P. J. SCHAFER, J. CONCUR.

APPEARANCES:

DONALD R. HICKS, Attorney at Law, for Appellant.

MALIK SHABAZZ BALDWIN, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.