State v. Millan

2016 Ohio 4695

• Court: Ohio Court of Appeals
• Decided: June 30, 2016
• Docket: 103431
• Status: Published

Opinion

[Cite as State v. Millan, 2016-Ohio-4695.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103431

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JOSE M. MILLAN DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-592135-A

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: June 30, 2016 ATTORNEY FOR APPELLANT

David L. Doughten David L. Doughten Co. L.P.A. 4403 St. Clair Avenue Cleveland, OH 44103

Also listed:

Jose M. Millan Inmate No. A581394 Richland Correctional Institution 1001 Olivesburg Road Mansfield, OH 44905

ATTORNEY FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant, Jose M. Millan, appeals from his conviction of

unauthorized use of a motor vehicle. Millan’s appointed appellate counsel filed a brief

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

and requested leave to withdraw as counsel. After a review of the record, we grant

counsel’s motion to withdraw and dismiss this appeal.

{¶2} In Anders, the United States Supreme Court held that if appointed counsel,

after a conscientious examination of the case, determines that the appeal is wholly

frivolous, counsel may advise the court and request permission to withdraw from the case.

Anders at 744. The request must be accompanied by a brief identifying issues that

could arguably support the appeal. Id. The brief must be furnished to the client, who

must then be allowed sufficient time to file his or her own brief.

{¶3} Millan’s counsel filed a motion to withdraw in compliance with these

requirements.1 This court ordered counsel’s motion be held in abeyance pending our

independent review of the case.

{¶4} In accordance with Anders, once appellant’s counsel satisfied the

requirements, this court then “examines the proceedings below to determine if any

In a motion dated April 28, 2016, filed by Millan’s counsel, which this court construed as a 1

notice of compliance, counsel certified that he had mailed his motion to withdraw to Millan on March 1, 2016, at his last known address (Lorain Correctional Institution at 2075 South Beldon Road, Grafton, Ohio) and that counsel will resend a copy of the motion to Millan at his last known address. This court subsequently notified Millan that he may file a pro se brief by June 10, 2016, but Millan did not do so. meritorious issues exist. If we conclude the appeal is wholly frivolous, we may grant

counsel’s request to withdraw and dismiss the appeal without violating constitutional

requirements, or we may proceed to a decision on the merits if state law so requires.”

Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493.

{¶5} In this case, the Cuyahoga County Grand Jury indicted Millan for one count

of grand theft, a fourth-degree felony, pursuant to R.C. 2913.02(A)(2). Millan

subsequently entered a guilty plea to a reduced charge of unauthorized use of a motor

vehicle under R.C. 2913.03(B), a fifth-degree felony. The trial court sentenced him to

124 days in jail but gave him jail-time credit of 124 days, which he already served. The

trial court also ordered him to pay restitution of $679.

{¶6} In his Anders brief, Millan’s counsel states that he has thoroughly reviewed

the record and determined that there were no meritorious arguments he could make on

Millan’s brief. Counsel nonetheless sets forth two potential arguments pursuant to

Anders: first, whether his plea was knowingly and voluntarily entered pursuant to Crim.R.

11; and second, whether his trial counsel provided ineffective assistance counsel at the

plea proceeding.

{¶7} As part of the independent review of Millan’s case, this court has examined

and considered the potential arguments identified in counsel’s Anders brief. Our own

review shows that Millan entered the guilty plea knowingly, intelligently, and voluntarily.

The trial court fully complied with the dictates of Crim.R. 11(C) in accepting Millan’s plea. Likewise, we did not find his trial counsel provided ineffective assistance counsel

under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶8} We, therefore, conclude that there are no arguable legal points on the merits

of this matter. This appeal is wholly frivolous pursuant to Anders, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493. Counsel’s request to withdraw is granted, and we dismiss

this appeal.

{¶9} Appeal dismissed.

It is ordered that appellee recover of appellant costs herein taxed.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR