State v. Lucas

2018 Ohio 3504

Opinion

[Cite as State v. Lucas, 2018-Ohio-3504.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-15 : v. : Trial Court Case No. 11-CR-280 : KEVIN R. LUCAS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 31st day of August, 2018.

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NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, 55 Greene Street, 1st Floor, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, P.O. Box 302, Bellbrook, Ohio 45305 Attorney for Defendant-Appellant

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HALL, J.

{¶ 1} Kevin R. Lucas appeals from his conviction and sentence on one count of

theft, a fifth-degree felony, following the trial court’s revocation of intervention in lieu of

conviction (ILC).

{¶ 2} Lucas’s second appointed appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the

absence of any non-frivolous issues for review, along with a motion requesting permission

to withdraw as counsel. We notified Lucas of the Anders filing and granted him an

opportunity to file a pro se brief. Nothing was filed, and the time to do so has expired.

{¶ 3} The record reflects that Lucas was charged with felony theft in 2011 for

stealing money from his employer’s cash register. He moved for ILC, asserting that he

was suffering from mental-health issues at the time of the offense. Lucas then entered a

guilty plea, and the trial court stayed the proceedings. In February 2012, the trial court

sustained the ILC motion and imposed various conditions. One of them required Lucas

to maintain employment and, if not employed, immediately to seek and gain employment.

Another condition required him to pay at least $75 per month toward a $3,230.69

restitution obligation and other fees the trial court had imposed. Nearly five years later in

January 2017, Lucas’s probation officer filed a motion and supporting affidavit seeking

revocation of ILC based on Lucas’s alleged failure to comply with the work condition and

the condition that he make payments of at least $75 per month toward his financial

obligations. The probation officer’s filing stated that Lucas’s then-existing restitution

obligation was $2,429.69. Following a hearing, the trial court determined that Lucas had

violated the two ILC conditions at issue. As a result, the court revoked ILC, accepted his -3-

prior guilty plea, made a finding of guilt, and sentenced him to community control

sanctions. As part of those sanctions, the trial court imposed a 150-day jail sentence and

ordered Lucas to pay restitution of $3,230.69. (Doc. #71).

{¶ 4} On June 17, 2017, Lucas’s prior appointed appellate counsel filed an Anders

brief asserting the absence of any non-frivolous issues for our review. We rejected that

Anders filing in a November 29, 2017 decision and entry in which we found a non-frivolous

issue. Specifically, we found an arguable issue regarding the current amount of Lucas’s

restitution obligation. We appointed new appellate counsel to address that issue and any

other issues.

{¶ 5} Lucas’s new counsel now has filed another Anders brief. Therein, counsel

notes that the potential issue regarding restitution has been clarified and corrected and,

therefore, that it is moot. Counsel represents that “recognizing that [the inaccurate

restitution balance due] was an error or mistake,” he contacted the probation officer, who

contacted the court, and the court filed a nunc pro tunc judgment entry correctly reflecting

that the restitution balance at the end of the ILC period was $2,429.69. The state has not

independently submitted anything to the contrary. We therefore agree that a potential

error in regard to the restitution amount is now moot and no longer presents an issue with

arguable merit.

{¶ 6} Current counsel also states that he has found no other issues with arguable

merit. Counsel notes that he and Lucas’s prior Anders counsel considered and rejected

all other issues, which included the propriety of revoking ILC, Lucas’s plea, the sentencing

hearing, and the sentence imposed. Having again conducted our own independent review

of the record as required by Anders, we likewise have found no non-frivolous issues for -4-

appellate review. Accordingly, we sustain appointed appellate counsel’s motion to

withdraw from further representation.

{¶ 7} The judgment of the Greene County Common Pleas Court is affirmed.

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DONOVAN, J., and FROELICH, J., concur.

Copies mailed to:

Nathaniel R. Luken Daniel E. Brinkman Hon. Michael A. Buckwalter