State v. Kaltenbach

2019 Ohio 687

• Court: Ohio Court of Appeals
• Decided: February 19, 2019
• Docket: 18 AP 0008
• Status: Published

Opinion

[Cite as State v. Kaltenbach, 2019-Ohio-687.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 18 AP 0008 DOUGLAS KALTENBACH

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Anders

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: February 19, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK J. HOWDYSHELL JAMES S. SWEENEY PROSECUTING ATTORNEY JAMES SWEENEY LAW, LLC 19 East Main Street 97 South Liberty Street McConnelsville, Ohio 43756 Powell, Ohio 43065 Morgan County, Case No. 18 AP 0008 2

Wise, P. J.

{¶1} Defendant-appellant Douglas Kaltenbach appeals his conviction on one

count of Having Weapons While Under Disability, following a plea of no contest in the

Morgan County Court of Common Pleas.

Facts and Procedural History

{¶2} On September 30, 2017, Appellant Kaltenbach was indicted on one count

of Having Weapons While Under Disability, in violation of R.C. §2923.13(A)(3), a felony

of the third degree.

{¶3} Appellant initially pled not guilty and discovery proceeded in this matter.

{¶4} On May 7, 2018, Appellant came before the court for a change of plea

wherein Appellant agreed to enter a plea of guilty as charged in the indictment and the

state of Ohio recommended community control supervision for a period of five (5) years.

The state further agreed to return the money seized as unrelated to the offense charged.

The state did state that it would seek forfeiture of the firearms, which the defendant

opposed. The trial court accepted Appellant’s plea of no contest and set a sentencing

hearing for July 2, 2018.

{¶5} At the sentencing hearing on July 2, 2018, and memorialized in a Judgment

Entry filed July 10, 2018, the trial court sentenced Appellant to five (5) years community

control supervision. The court further ordered Appellant to pay court costs but did not

impose a fine in this matter. The court also ordered forfeiture of the firearms and

ammunition seized under the search warrant, but ordered the return of all other seized

property. Morgan County, Case No. 18 AP 0008 3

{¶6} On November 15, 2018, counsel for Appellant 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 assignment of error as to the forfeiture of the firearms,

claiming that same were owned by Appellant’s son.

Law and Analysis

{¶7} 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

the appeal without violating constitutional requirements, or may proceed to a decision on

the merits if state law so requires. Id.

{¶8} By Judgment Entry filed November 26, 2018, this Court noted that counsel

had filed an Anders brief and had indicated to the Court that he had served Appellant with

the brief. Accordingly, this Court notified Appellant via Certified U.S. Mail that he “may

file a pro se brief in support of the appeal on or before December 31, 2018.”

{¶9} On December 27, 2018, Appellant filed a pro se, two-page, handwritten

document titled “Brief”. Morgan County, Case No. 18 AP 0008 4

{¶10} We find Appellant’s counsel in this matter has adequately followed the

procedures required by Anders.

App.R. 16

{¶11} The document Appellant filed on December 27, 2018, we have construed

as his pro se brief in support of his appeal. This document fails in almost every respect to

comply with the requirements governing the content of the brief of the Appellant. App.R.16

(A)(1)-(7). Briefs filed in this Court, whether by counsel or pro se, must comply with App.R.

16.

{¶12} Most importantly, Appellant has failed, inter alia, to set forth any

assignments of error or propositions of law or cite to the record in this matter. App.R.

16(A)(3) requires that a brief contain assignments of error presented for review on appeal

and that they be included in a separate statement.

{¶13} Pursuant to Loc.App.R. 16(C) and Anders, this Court has conducted an

independent examination of the record to determine if there are any issues of arguable

merit. Anders instructs that if the appellate court determines that the appeal would be

“wholly frivolous” (i.e., there are no legal points of arguable merit), the court may grant

counsel's request to withdraw and dismiss the appeal. If, however, the court finds any

legal points arguable on their merits, the court must afford appellant the assistance of

counsel before deciding the merits of the case. Anders, 386 U.S. at 744, 87 S.Ct. 1396,

18 L.Ed.2d 493.

{¶14} Upon a complete review of the record, this Court agrees that no prejudicial

error occurred in the lower court, and any appeal on Appellant’s behalf would be frivolous. Morgan County, Case No. 18 AP 0008 5

{¶15} Accordingly, the motion of appointed counsel to withdraw is granted, and

the appeal of the judgment of the Court of Common Pleas of Morgan County, Ohio, is

dismissed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

JWW/d 0211