[Cite as State v. Freeman, 2018-Ohio-2093.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. John W. Wise, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : -vs- : : Case No. CT2017-0068 JOHN E. FREEMAN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court, Case No. TRC1704449
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 29, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MOLLY MARTIN VALERIE K. WIGGINS Box 189 107 S. Main St. Zanesville, OH 43702-0189 New Lexington, OH 43764 [Cite as State v. Freeman, 2018-Ohio-2093.]
Gwin, J.,
{¶1} Defendant-appellant John Freeman [“Freeman”] appeals his conviction and
sentence after a no contest plea in the Muskingum County Court. The Appellee State of
Ohio has not filed a brief in this case.
Facts and Procedural History
{¶2} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),
the Supreme Court noted, “a reviewing court cannot add matter to the record before it
that was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”
It is also a longstanding rule "that the record cannot be enlarged by factual assertions in
the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material and factual assertions contained in any brief in this court may
not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858
N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
N.E.2d 1202, ¶16. Therefore, we have disregarded facts in Freeman’s brief that are
outside of the record.
{¶3} The record transmitted to this court establishes the following facts.
{¶4} Freeman was charged in Muskingum County Court on August 3, 2017 with
multiple charges including violations of OVI in violation of R.C. 4511.19(A)(1)(A), OVI low
test in violation of R.C. 4511.19(A)(1)(D), Driving Under OVI Suspension in violation of
R.C. 4510.14 and a Marked Lanes violation in violation of R. C. 4511.33(A). This was Muskingum County, Case No. CT2017-0068 3
Freeman’s eighth OVI offense in twenty years. T. Aug. 25, 2017 at 11. Freeman was
also on felony probation at the time of the offense. Id. at 10.
{¶5} On August 25, 2017, Freeman pled no contest to the charges. The trial
court found Freeman guilty. The sentences were imposed consecutively for an aggregate
jail sentence of 360 days.
Assignment of Error
{¶6} Counsel for Freeman has filed a Motion to Withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967) asserting one
potential assignments of error:
{¶7} “I. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
REQUEST A CONTINUANCE WHEN THE PROSECUTOR DID NOT ACT IN
ACCORDANCE WITH THE OHIO RULES OF CRIMINAL PROCEDURE.”
Law and Analysis
{¶8} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. 386 U.S. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to
raise any matters that the client chooses. Id. Once the defendant's counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss Muskingum County, Case No. CT2017-0068 4
the appeal without violating constitutional requirements, or may proceed to a decision on
the merits if state law so requires. Id.
{¶9} By Judgment Entry filed March 28, 2018, this Court noted that counsel had
filed an Anders brief and had indicated to the Court that she had served Freeman with
the brief. Accordingly, this Court notified Freeman via Certified U.S. Mail that he “may file
a pro se brief in support of the appeal on or before April 30, 2018.”
{¶10} We find Freeman’s counsel in this matter has adequately followed the
procedures required by Anders. Freeman has not filed a pro se brief.
I.
A plea of no contest is an admission of the facts alleged in the
indictment. Crim.R. 11(B)(2). The prosecution is relieved of the burden
of presenting evidence to prove the defendant guilty beyond a reasonable
doubt. State v. Thorpe (1983), 9 Ohio App.3d 1, 9 OBR 1, 457 N.E.2d
912. A conviction will be improper only when statements of factual matter
presented to the court in support of the indictment negate the existence of
an essential element of the offense charged. State v. Mercure (Jan. 29,
1986), Lorain App. No. 3898, unreported [Available on WESTLAW, 1986
WL 1350]; Cleveland v. Technisort, Inc. (1985), 20 Ohio App.3d 139, 20
OBR 172, 485 N.E.2d 294.
State v. Stow Veterans Association, 35 Ohio App.3d 45, 46, 519 N.E.2d 660(9th Dist.
1987). Appellate review of a trial court's finding of guilt on a no contest plea is de novo:
We review the explanation of circumstances to determine if there is sufficient evidence Muskingum County, Case No. CT2017-0068 5
in the record to establish all of the elements of the offense. City of Cuyahoga Falls v.
Bowers, 9 Ohio St.3d 148, 150, 459 N.E.2d 532, 535 (1984).
{¶11} In the case at bar, Freeman waived the explanation of circumstances. T.
Aug. 25, 2018 at 10.
{¶12} Freeman’s proposed assignment of error alleges that his trial counsel was
ineffective in failing to request a continuance because Freeman was not provided a
notice of the prosecutor's intention to use evidence, was not provided with a witness list,
and was not timely provided with access to discovery to photograph or copy evidence
pursuant to Crim.R. 16(H).
{¶13} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington,
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Freeman, 2018-Ohio-2093.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. John W. Wise, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : -vs- : : Case No. CT2017-0068 JOHN E. FREEMAN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court, Case No. TRC1704449
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 29, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MOLLY MARTIN VALERIE K. WIGGINS Box 189 107 S. Main St. Zanesville, OH 43702-0189 New Lexington, OH 43764 [Cite as State v. Freeman, 2018-Ohio-2093.]
Gwin, J.,
{¶1} Defendant-appellant John Freeman [“Freeman”] appeals his conviction and
sentence after a no contest plea in the Muskingum County Court. The Appellee State of
Ohio has not filed a brief in this case.
Facts and Procedural History
{¶2} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),
the Supreme Court noted, “a reviewing court cannot add matter to the record before it
that was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”
It is also a longstanding rule "that the record cannot be enlarged by factual assertions in
the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material and factual assertions contained in any brief in this court may
not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858
N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
N.E.2d 1202, ¶16. Therefore, we have disregarded facts in Freeman’s brief that are
outside of the record.
{¶3} The record transmitted to this court establishes the following facts.
{¶4} Freeman was charged in Muskingum County Court on August 3, 2017 with
multiple charges including violations of OVI in violation of R.C. 4511.19(A)(1)(A), OVI low
test in violation of R.C. 4511.19(A)(1)(D), Driving Under OVI Suspension in violation of
R.C. 4510.14 and a Marked Lanes violation in violation of R. C. 4511.33(A). This was Muskingum County, Case No. CT2017-0068 3
Freeman’s eighth OVI offense in twenty years. T. Aug. 25, 2017 at 11. Freeman was
also on felony probation at the time of the offense. Id. at 10.
{¶5} On August 25, 2017, Freeman pled no contest to the charges. The trial
court found Freeman guilty. The sentences were imposed consecutively for an aggregate
jail sentence of 360 days.
Assignment of Error
{¶6} Counsel for Freeman has filed a Motion to Withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967) asserting one
potential assignments of error:
{¶7} “I. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
REQUEST A CONTINUANCE WHEN THE PROSECUTOR DID NOT ACT IN
ACCORDANCE WITH THE OHIO RULES OF CRIMINAL PROCEDURE.”
Law and Analysis
{¶8} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant's counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. 386 U.S. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to
raise any matters that the client chooses. Id. Once the defendant's counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss Muskingum County, Case No. CT2017-0068 4
the appeal without violating constitutional requirements, or may proceed to a decision on
the merits if state law so requires. Id.
{¶9} By Judgment Entry filed March 28, 2018, this Court noted that counsel had
filed an Anders brief and had indicated to the Court that she had served Freeman with
the brief. Accordingly, this Court notified Freeman via Certified U.S. Mail that he “may file
a pro se brief in support of the appeal on or before April 30, 2018.”
{¶10} We find Freeman’s counsel in this matter has adequately followed the
procedures required by Anders. Freeman has not filed a pro se brief.
I.
A plea of no contest is an admission of the facts alleged in the
indictment. Crim.R. 11(B)(2). The prosecution is relieved of the burden
of presenting evidence to prove the defendant guilty beyond a reasonable
doubt. State v. Thorpe (1983), 9 Ohio App.3d 1, 9 OBR 1, 457 N.E.2d
912. A conviction will be improper only when statements of factual matter
presented to the court in support of the indictment negate the existence of
an essential element of the offense charged. State v. Mercure (Jan. 29,
1986), Lorain App. No. 3898, unreported [Available on WESTLAW, 1986
WL 1350]; Cleveland v. Technisort, Inc. (1985), 20 Ohio App.3d 139, 20
OBR 172, 485 N.E.2d 294.
State v. Stow Veterans Association, 35 Ohio App.3d 45, 46, 519 N.E.2d 660(9th Dist.
1987). Appellate review of a trial court's finding of guilt on a no contest plea is de novo:
We review the explanation of circumstances to determine if there is sufficient evidence Muskingum County, Case No. CT2017-0068 5
in the record to establish all of the elements of the offense. City of Cuyahoga Falls v.
Bowers, 9 Ohio St.3d 148, 150, 459 N.E.2d 532, 535 (1984).
{¶11} In the case at bar, Freeman waived the explanation of circumstances. T.
Aug. 25, 2018 at 10.
{¶12} Freeman’s proposed assignment of error alleges that his trial counsel was
ineffective in failing to request a continuance because Freeman was not provided a
notice of the prosecutor's intention to use evidence, was not provided with a witness list,
and was not timely provided with access to discovery to photograph or copy evidence
pursuant to Crim.R. 16(H).
{¶13} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶14} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and Bradley.
Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009).
{¶15} In State v. Wilson, the Court of Appeals observed,
The decision to forego discovery could be a sound trial strategy,
albeit one that was ultimately unsuccessful. See State v. Williams (Mar.
27, 1991), Lorain App. No. 90CA004830, citing State v. Flors (1987), 38 Muskingum County, Case No. CT2017-0068 6
Ohio App.3d 133, 139, 528 N.E.2d 950. The reasonableness of counsel’s
determination concerning the extent, method and scope of any criminal
discovery necessarily depends upon the particular facts and
circumstances of each case. State v. Wilson (Oct. 22, 1992), Cuyahoga
App. No. 61199; State v. Allen, 10th Dist. No. 02AP-862, 2003-Ohio-1114
at ¶ 7.
8th Dist. Cuyahoga No. 61199, 1992 WL 309378 (Oct. 22, 1992) at *1. Effective
representation carries with it a duty to investigate. The reasonableness of
counsel’s determination regarding the extent, method, and scope of any criminal
pretrial discovery necessarily depends upon the particular facts and
circumstances of each case. See, State v. McCants, 7th Dist. Mahoning No. 13
MA 25, 2014-Ohio-4044, ¶20; State v. Degaro, 12th Dist. Butler No. CA2008-09-
227, 2009-Ohio-2966, ¶15; State v. Blausey, 5th Dist. Licking No. 2006-CA-36,
2006-Ohio-5536, ¶75.
{¶16} In the case at bar, the trial court file contains the traffic citations, police
report, narrative police report, arrest report, BAC Datamaster Operational Checklist,
BAC test results, Muskingum County Sherriff Call for Service reports, and LEADS
printout.
{¶17} Freeman has failed to demonstrate any prejudice from his trial counsel’s
representation. Further, the record clearly demonstrates that trial counsel was aware
of the witnesses and evidence underlying the charges against Freeman. Muskingum County, Case No. CT2017-0068 7
Conclusion.
{¶18} After independently reviewing the record, we agree with counsel's
conclusion that no arguably meritorious claims exist upon which to base an appeal.
Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to
withdraw, and affirm the judgment of the Muskingum County Court.
By Gwin, J.,
Wise, P.J., and
Hoffman, J., concur