State v. Cubic

2020 Ohio 228

• Court: Ohio Court of Appeals
• Decided: January 27, 2020
• Docket: 18CA0099-M
• Status: Published

Opinion

[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. 2

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 3

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 4

HENSAL, J. SCHAFER, J. CONCUR.

APPEARANCES:

KRISTOPHER K. AUPPERLE, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, for Appellee.