State v. McCullough

2018 Ohio 2340

Opinion

[Cite as State v. McCullough, 2018-Ohio-2340.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-17-1142

Appellee Trial Court No. CR0201701083

v.

Robert Keith McCullough DECISION AND JUDGMENT

Appellant Decided: June 15, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Patricia Horner, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Robert McCullough, was permitted to file a delayed appeal from

the March 22, 2017 judgment of the Lucas County Court of Common Pleas, in which the

trial court accepted appellant’s plea of no contest and convicted him of the lesser-

included offense of aggravated assault, a violation of R.C. 2903.12(A)(1) and (B), a felony of the fourth degree. Appellant was sentenced to 14 months in prison. One week

later, appellant sought to withdraw his plea, which the trial court denied on May 5, 2017,

after a hearing on the matter.

{¶ 2} Pursuant to the guidelines set forth in Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant’s court-appointed counsel has filed an

appellate brief and motion to withdraw as counsel. She attested in her affidavit that she

mailed a copy of the brief and motion to appellant and informed him that he had a right to

file his own brief, but he did not do so.

{¶ 3} Appellant’s counsel states in her motion that she thoroughly reviewed the

record in this case and concluded that the trial court did not commit any error prejudicial

to appellant. However, in compliance with the requirements of Anders, appellant’s

counsel has submitted a brief setting forth the following potential assignment of error:

APPELLANT COULD ASSERT HIS PLEA WAS NOT

VOLUNTARILY, KNOWINGLY OR WILLINGLY ENTERED INTO.

{¶ 4} Appellant’s appointed counsel has included arguments which support this

assignment of error, but concludes that it is unsupported by the record and the law.

Therefore, she concludes that an appeal would be frivolous.

{¶ 5} When a defendant desires to enter a guilty or no contest plea, a trial court

must conduct a hearing and address the defendant personally pursuant to Crim.R.

11(C)(2). Furthermore, the rule requires that the trial court must inform the defendant of

certain information, make specific determinations, and give the warnings required by

2. subsections (a) and (b) and notify the defendant of the constitutional rights listed in

subsection (c) that are waived by entering a plea.

{¶ 6} In this case, the trial court’s colloquy with appellant was very thorough and

fulfilled each of the requirements of Crim.R. 11(C)(2). Therefore, we find no merit to the

error alleged by appellant’s appointed counsel.

{¶ 7} Furthermore, this court has the obligation to fully examine the record in this

case to determine whether an appeal would be frivolous. Anders, 386 U.S. at 744, 87

S.Ct. 1396, 18 L.Ed.2d 493. Our review of the record does not disclose any errors by the

trial court which would justify a reversal of the judgment. Therefore, we find this appeal

to be wholly frivolous. Counsel’s request to withdraw as appellate counsel is found

well-taken and is hereby granted.

{¶ 8} Having found that the trial court did not commit error prejudicial to

appellant, the judgment of the Lucas County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on

appeal. The clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

3. State v. McCullough C.A. No. L-17-1142

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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