State v. Lawhorn

2017 Ohio 828

• Court: Ohio Court of Appeals
• Decided: March 8, 2017
• Docket: 28295
• Status: Published

Opinion

[Cite as State v. Lawhorn, 2017-Ohio-828.]

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

STATE OF OHIO C.A. No. 28295

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE KEITH A. LAWHORN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2015 12 3913

DECISION AND JOURNAL ENTRY

Dated: March 8, 2017

SCHAFER, Judge.

{¶1} Defendant-Appellant, Keith A. Lawhorn, appeals the judgment of the Summit

County Court of Common Pleas convicting him of one count of aggravated possession of drugs

and one count of illegal use or possession of drug paraphernalia. This Court affirms.

I.

{¶2} On December 14, 2015, the Akron Police Department set up a controlled purchase

of fentanyl between a confidential informant and Lawhorn, which resulted in the confidential

informant purchasing 8.61 grams of fentanyl from Lawhorn. Following the controlled purchase,

law enforcement followed Lawhorn to a residence located on Upson Street in Akron, Ohio,

which Lawhorn entered using a key. That same day, law enforcement obtained a search warrant

for the Upson Street residence. On December 16, 2015, Lawhorn was arrested pursuant to a

federal arrest warrant. Law enforcement searched Lawhorn’s person during the arrest, at which

time they discovered two bindles containing .11 grams of fentanyl. Law enforcement then 2

informed Lawhorn that they had a warrant to search the Upson Street residence. Lawhorn

informed law enforcement that more fentanyl was located at that residence. Law enforcement

subsequently brought Lawhorn to the Upson Street residence, where he directed the officers to

an additional 8.93 grams of fentanyl and a digital scale located inside the house.

{¶3} The Summit County Grand Jury indicted Lawhorn on one count of aggravated

possession of drugs in violation of R.C. 2925.11(A)(C)(1), a fifth-degree felony, and one count

of illegal use or possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a fourth-

degree misdemeanor. Lawhorn pleaded not guilty to the offenses contained in the indictment

and the matter proceeded through the pretrial process. Lawhorn subsequently filed a motion to

unseal the search warrant that was executed. The trial court granted that motion. Lawhorn also

filed a suppression motion arguing that the search warrant failed to set forth probable cause that

evidence of a crime would be discovered at the Upson Street residence. The trial court

ultimately denied Lawhorn’s suppression motion following a hearing on the matter. The matter

then proceeded to a jury trial.

{¶4} At trial, the State presented four witnesses to testify on its behalf. Following the

State’s case-in-chief, Lawhorn made a Crim.R. 29 motion for judgment of acquittal, which the

trial court denied. The defense thereafter rested without calling any witnesses. The jury

ultimately found Lawhorn guilty of both counts contained in the indictment. The trial court

sentenced Lawhorn to 11 months in prison.

{¶5} Lawhorn filed this timely appeal.

II.

{¶6} On October 19, 2016, Lawhorn’s appellate counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that he has reviewed the record and concluded 3

that there are no viable issues to be pursued on appeal. Lawhorn’s counsel also moved to

withdraw as counsel of record in this matter. The record indicates that Lawhorn was served with

a copy of his appellate counsel’s brief, and this Court issued a magistrate’s order affording

Lawhorn an opportunity to raise arguments after review of the Anders brief. Lawhorn has not

submitted additional arguments for our consideration.

{¶7} In his Anders brief, Lawhorn’s counsel identified two possible issues for appeal,

but concluded that they were not viable. Specifically, counsel questioned whether Lawhorn’s

convictions for the drug-related offenses were supported by sufficient evidence and against the

manifest weight of the evidence. However, upon review of the trial and transcripts, as well as

the applicable law, counsel concluded that the trial court did not err in finding Lawhorn guilty of

those offenses.

{¶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

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

161274 (Apr. 8, 1998). Accordingly, we grant appellate counsel's motion to withdraw.

III.

{¶9} Having reviewed the entire record and having found that no appealable issues

exist, we conclude that Lawhorn’s appeal is meritless and wholly frivolous under Anders. The

judgment of the Summit County Court of Common Pleas is affirmed. Lawhorn’s appellate

counsel’s motion to withdraw as counsel is hereby granted.

Judgment affirmed. 4

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.

JULIE A. SCHAFER FOR THE COURT

HENSAL, P. J. CALLAHAN, J. CONCUR.

APPEARANCES:

NICHOLAS KLYMENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.