State v. Gilbert

2022 Ohio 602

• Court: Ohio Court of Appeals
• Decided: March 2, 2022
• Docket: 30085
• Status: Published

Opinion

[Cite as State v. Gilbert, 2022-Ohio-602.]

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

STATE OF OHIO C.A. No. 30085

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE RYAN GILBERT COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2020-05-1231

DECISION AND JOURNAL ENTRY

Dated: March 2, 2022

SUTTON, Judge.

{¶1} Defendant-Appellant, Ryan Gilbert, appeals his conviction and sentence

following a guilty plea taken by the Summit County Court of Common Pleas. This Court

affirms.

I.

Relevant Background

{¶2} The present appeal arises from an incident at Circle K where Mr. Gilbert punched

J.J., the mother of his child, twice in the face. After engaging in a plea colloquy with the trial

court, pursuant to Crim.R. 11, Mr. Gilbert pleaded guilty to domestic violence, in violation of

R.C. 2919.25(A) and R.C. 2919.25(D)(3), a felony of the fourth degree. Although the State

recommended prison time, the trial court sentenced Mr. Gilbert to: (1) 30 months community

control; (2) an additional 9 months in the Residential Institutional Probation Program at Oriana 2

House; (3) a reserved prison sentence up to 18 months; and (4) a continued protection order for

the victim.

{¶3} On September 8, 2021, this Court granted Mr. Gilbert leave to file a delayed

appeal. Mr. Gilbert’s counsel, pursuant to Anders v. California, 386 U.S. 738 (1967), then filed

a motion for leave to withdraw accompanied by an Anders brief. Consistent with the guidelines

set forth in Anders, Mr. Gilbert’s counsel asserted that, after a review of the record, he was

unable to find any issues that might support an appeal. Anders at 744. The record reveals Mr.

Gilbert was served with a copy of his counsel’s brief, and this Court afforded Mr. Gilbert the

opportunity to raise arguments after review of the Anders brief. Mr. Gilbert, however, has not

responded to his counsel’s Anders brief or raised any additional arguments for our review.

II.

ASSIGNMENT OF ERROR

[MR.] GILBERT’S PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY ENTERED INTO[.]

{¶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.” State v. Baldwin, 9th Dist. Summit

No. 291765, 2019-Ohio-2542, ¶ 4.

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.”

Id., quoting 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 3

issues, we must appoint different appellate counsel to represent the appellant.” Id. at ¶ 4, citing

Pullen at ¶ 2.

{¶5} In the Anders brief, counsel identified one possible issue for appeal, but

concluded it was not viable. Specifically, counsel stated:

[Mr. Gilbert] wanted probation for his plea of guilt. * * * The [c]ourt advised [Mr. Gilbert] that no attorney could make that guarantee. * * * At sentencing the [c]ourt imposed probation, however, the [c]ourt added nine months [in the Residential Institutional Probation Program] as another condition of [Mr. Gilbert’s] sentence. * * *

However, the [c]ourt inquired of [Mr. Gilbert] extensively and made sure it had gone over [Mr. Gilbert’s] rights, prior to [Mr. Gilbert] entering his plea. Thus, this assignment of error is without merit.

{¶6} Subsequent to this Court’s own full, independent examination of the record,

including the plea and sentencing transcripts, we agree there are no appealable, non-frivolous

issues in this case. See Baldwin at ¶ 8; see also State v. Randles, 9th Dist. Summit No. 23857,

2008-Ohio-662, ¶ 6. Thus, pursuant to Anders, supra, Mr. Gilbert’s appeal is meritless and

wholly frivolous.

{¶7} Accordingly, this Court grants Mr. Gilbert’s counsel’s motion to withdraw and

affirms the judgment of the Summit County Court of Common Pleas.

III.

{¶8} For the reasons stated above, Mr. Gilbert’s counsel’s motion to withdraw is

granted. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 4

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.

BETTY SUTTON FOR THE COURT

TEODOSIO, P. J. HENSAL, J. CONCUR.

APPEARANCES:

WESLEY C. BUCHANAN, Attorney at Law, for Appellant.

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