[Cite as State v. New, 2025-Ohio-1532.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Kevin W. Popham, J. : Hon. David M. Gormley, J. -vs- : : Case Nos. CT2024-0114, ZACHARY L. NEW : CT2024-0115 : Defendant - Appellant : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas Case Nos. CR2023-0799 and CR2024-0575
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 30, 2025
APPEARANCES:
For Defendant-Appellant
April F. Campbell 6059 Frantz Road, Suite 206 Dublin, Ohio 43017 Gormley, J.
{¶1} Defendant Zachary L. New pled guilty in Muskingum County to four fifth-
degree felonies related to his possession of drugs and stolen property. Finding no error
in the trial court’s acceptance of New’s guilty pleas, we now affirm.
Facts and Procedural History
{¶2} In September 2023, New was pulled over by a Muskingum County deputy
sheriff for driving an unregistered vehicle. Once the deputy approached the vehicle, he
saw inside it a clear plastic bag in plain view that contained what looked like fentanyl.
{¶3} New was arrested and the vehicle was searched. The deputy collected the
plastic bag along with approximately 700 feet of fiber wire from both the passenger
compartment and the trunk of the vehicle. The substances in that plastic bag later tested
positive for cocaine and fentanyl, and the fiber wire was determined to have been stolen
from a nearby AT&T store. On the day of the traffic stop, New was under post-release-
control supervision for an earlier, unrelated crime.
{¶4} New was charged with possession of a fentanyl-related compound,
possession of cocaine, receiving stolen property, and possession of criminal tools. In
exchange for the state dropping the criminal-tools charge, New pled guilty to the
possession-of-fentanyl, possession-of-cocaine, and receiving-stolen-property charges.
The trial judge accepted New’s guilty pleas and scheduled a sentencing hearing.
{¶5} New failed to appear at that sentencing hearing, and the judge issued an
arrest warrant. A month later, several Muskingum County deputies encountered New
when they were called to the site of a possible suicide threat. New saw the deputies and immediately fled on foot. In the ensuing chase, a bag containing methamphetamine fell
out of New’s pocket.
{¶6} New was then brought before the trial judge for sentencing on the original
charges. At that hearing, New also pled guilty to a possession-of-methamphetamine
charge related to the bag that fell out of his pocket during the foot chase, and he was
sentenced on that charge too. On the possession-of-methamphetamine charge, New and
the State jointly recommended a 12-month prison sentence. No joint sentence
recommendations were made for the other charges.
{¶7} The trial judge merged the possession-of-fentanyl and possession-of-
cocaine charges. The State elected to proceed on the possession-of-fentanyl charge,
and the judge sentenced New to 11 months in prison on that charge. The judge also
sentenced New to 11 months in prison on the receiving-stolen-property charge and 12
months in prison on the possession-of-methamphetamine charge. After making the
requisite findings, the trial judge ordered that the sentences be served consecutively, so
New’s aggregate prison sentence was 34 months. In addition, the trial judge found that
New’s commission of new felony offenses while he was under post-release-control
supervision justified the imposition of an additional prison term under R.C.
2929.141(A)(1).
{¶8} New filed a timely notice of appeal, and appellate counsel was appointed to
represent New in his appeal.
{¶9} Once a transcript of the plea-and-sentencing hearing was transmitted,
New’s appellate counsel filed her brief here. In that brief, New’s counsel, in accordance
with Anders v. California, 386 U.S. 738 (1967), indicates that no colorable issues exist that might prompt this court to overturn New’s convictions and sentence. The appellate
attorney also indicated in the brief that she had provided copies of it to both New himself
and to the prosecutor. The appellate attorney also moved to withdraw as counsel in the
case.
{¶10} This court then sent a notice to the parties indicating that New could file his
own appellate brief and that the State could of course respond to any such brief and to
the Anders brief. No additional briefs beyond the original Anders brief have been filed
here.
Our Review of the Record Supports the View of New’s Counsel: This Appeal Is Frivolous
{¶11} Under Anders, of course, court-appointed appellate counsel in a criminal
case is permitted to indicate — after the attorney has conscientiously reviewed the full
record — that any possible grounds for an appeal in the case appear to be frivolous. See
id. at 744. When such a brief is filed, Anders instructs counsel to file a brief identifying
anything in the record that might arguably support the appeal. See State v. Sergent,
2016-Ohio-2696, ¶ 8, fn.1. The court of appeals should then ensure that the indigent
defendant receives a copy of that brief and should give the defendant an opportunity to
raise any arguments that he or she would like to present in the appeal. Anders at 744.
And then finally, the court itself should fully examine the case record to determine whether
the appeal is frivolous. Id.
{¶12} All of those steps have occurred in this appeal. Though the Anders brief
filed by New’s appellate counsel in fact indicates that that lawyer could not find any issues
that might arguably support the appeal, we have undertaken our duty to independently examine the record and determine whether the appeal is frivolous. We agree with New’s
attorney and find that it is.
A. The Guilty-Plea Hearings Were Properly Conducted
{¶13} The record reflects that the trial judge properly conducted the original guilty-
plea hearing, and he addressed at that hearing the constitutional rights that must be
discussed, the nature of the charges, the maximum penalties, the effect of the guilty pleas
on New’s earlier post-release control, the restitution that New would be required to pay,
and the possibility of an immediate sentence. The trial judge’s colloquy with New
demonstrates, too, that New entered his guilty pleas knowingly and voluntarily and with a
full understanding of his rights and of the implications of the plea change. New was
represented by counsel, and he indicated to the trial judge that he was satisfied with the
work that his attorney had done in the case.
{¶14} The record also reflects that the trial judge properly conducted the second
guilty-plea hearing that occurred when New was charged with possession of
methamphetamine. At that hearing, the judge again ensured that New’s guilty plea was
entered into knowingly, intelligently, and voluntarily by advising New of the nature of the
charge and the consequences of his plea. New again expressed that he understood his
rights and the implications of his plea, and he told the judge that he was satisfied with the
representation of his attorney.
{¶15} In short, both pleas fully comported with Ohio law. See State v. Veney,
2008-Ohio-5200, ¶ 8 (“Crim.R.
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[Cite as State v. New, 2025-Ohio-1532.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Kevin W. Popham, J. : Hon. David M. Gormley, J. -vs- : : Case Nos. CT2024-0114, ZACHARY L. NEW : CT2024-0115 : Defendant - Appellant : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas Case Nos. CR2023-0799 and CR2024-0575
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 30, 2025
APPEARANCES:
For Defendant-Appellant
April F. Campbell 6059 Frantz Road, Suite 206 Dublin, Ohio 43017 Gormley, J.
{¶1} Defendant Zachary L. New pled guilty in Muskingum County to four fifth-
degree felonies related to his possession of drugs and stolen property. Finding no error
in the trial court’s acceptance of New’s guilty pleas, we now affirm.
Facts and Procedural History
{¶2} In September 2023, New was pulled over by a Muskingum County deputy
sheriff for driving an unregistered vehicle. Once the deputy approached the vehicle, he
saw inside it a clear plastic bag in plain view that contained what looked like fentanyl.
{¶3} New was arrested and the vehicle was searched. The deputy collected the
plastic bag along with approximately 700 feet of fiber wire from both the passenger
compartment and the trunk of the vehicle. The substances in that plastic bag later tested
positive for cocaine and fentanyl, and the fiber wire was determined to have been stolen
from a nearby AT&T store. On the day of the traffic stop, New was under post-release-
control supervision for an earlier, unrelated crime.
{¶4} New was charged with possession of a fentanyl-related compound,
possession of cocaine, receiving stolen property, and possession of criminal tools. In
exchange for the state dropping the criminal-tools charge, New pled guilty to the
possession-of-fentanyl, possession-of-cocaine, and receiving-stolen-property charges.
The trial judge accepted New’s guilty pleas and scheduled a sentencing hearing.
{¶5} New failed to appear at that sentencing hearing, and the judge issued an
arrest warrant. A month later, several Muskingum County deputies encountered New
when they were called to the site of a possible suicide threat. New saw the deputies and immediately fled on foot. In the ensuing chase, a bag containing methamphetamine fell
out of New’s pocket.
{¶6} New was then brought before the trial judge for sentencing on the original
charges. At that hearing, New also pled guilty to a possession-of-methamphetamine
charge related to the bag that fell out of his pocket during the foot chase, and he was
sentenced on that charge too. On the possession-of-methamphetamine charge, New and
the State jointly recommended a 12-month prison sentence. No joint sentence
recommendations were made for the other charges.
{¶7} The trial judge merged the possession-of-fentanyl and possession-of-
cocaine charges. The State elected to proceed on the possession-of-fentanyl charge,
and the judge sentenced New to 11 months in prison on that charge. The judge also
sentenced New to 11 months in prison on the receiving-stolen-property charge and 12
months in prison on the possession-of-methamphetamine charge. After making the
requisite findings, the trial judge ordered that the sentences be served consecutively, so
New’s aggregate prison sentence was 34 months. In addition, the trial judge found that
New’s commission of new felony offenses while he was under post-release-control
supervision justified the imposition of an additional prison term under R.C.
2929.141(A)(1).
{¶8} New filed a timely notice of appeal, and appellate counsel was appointed to
represent New in his appeal.
{¶9} Once a transcript of the plea-and-sentencing hearing was transmitted,
New’s appellate counsel filed her brief here. In that brief, New’s counsel, in accordance
with Anders v. California, 386 U.S. 738 (1967), indicates that no colorable issues exist that might prompt this court to overturn New’s convictions and sentence. The appellate
attorney also indicated in the brief that she had provided copies of it to both New himself
and to the prosecutor. The appellate attorney also moved to withdraw as counsel in the
case.
{¶10} This court then sent a notice to the parties indicating that New could file his
own appellate brief and that the State could of course respond to any such brief and to
the Anders brief. No additional briefs beyond the original Anders brief have been filed
here.
Our Review of the Record Supports the View of New’s Counsel: This Appeal Is Frivolous
{¶11} Under Anders, of course, court-appointed appellate counsel in a criminal
case is permitted to indicate — after the attorney has conscientiously reviewed the full
record — that any possible grounds for an appeal in the case appear to be frivolous. See
id. at 744. When such a brief is filed, Anders instructs counsel to file a brief identifying
anything in the record that might arguably support the appeal. See State v. Sergent,
2016-Ohio-2696, ¶ 8, fn.1. The court of appeals should then ensure that the indigent
defendant receives a copy of that brief and should give the defendant an opportunity to
raise any arguments that he or she would like to present in the appeal. Anders at 744.
And then finally, the court itself should fully examine the case record to determine whether
the appeal is frivolous. Id.
{¶12} All of those steps have occurred in this appeal. Though the Anders brief
filed by New’s appellate counsel in fact indicates that that lawyer could not find any issues
that might arguably support the appeal, we have undertaken our duty to independently examine the record and determine whether the appeal is frivolous. We agree with New’s
attorney and find that it is.
A. The Guilty-Plea Hearings Were Properly Conducted
{¶13} The record reflects that the trial judge properly conducted the original guilty-
plea hearing, and he addressed at that hearing the constitutional rights that must be
discussed, the nature of the charges, the maximum penalties, the effect of the guilty pleas
on New’s earlier post-release control, the restitution that New would be required to pay,
and the possibility of an immediate sentence. The trial judge’s colloquy with New
demonstrates, too, that New entered his guilty pleas knowingly and voluntarily and with a
full understanding of his rights and of the implications of the plea change. New was
represented by counsel, and he indicated to the trial judge that he was satisfied with the
work that his attorney had done in the case.
{¶14} The record also reflects that the trial judge properly conducted the second
guilty-plea hearing that occurred when New was charged with possession of
methamphetamine. At that hearing, the judge again ensured that New’s guilty plea was
entered into knowingly, intelligently, and voluntarily by advising New of the nature of the
charge and the consequences of his plea. New again expressed that he understood his
rights and the implications of his plea, and he told the judge that he was satisfied with the
representation of his attorney.
{¶15} In short, both pleas fully comported with Ohio law. See State v. Veney,
2008-Ohio-5200, ¶ 8 (“Crim.R. 11(C) governs the process that a trial court must use
before accepting a felony plea of guilty or no contest”); State v. Engle, 74 Ohio St.3d 525, 527 (1996) (“When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily”).
B. New’s Sentence Was Not Contrary to Law
{¶16} New’s sentence involved matters relating to post-release-control violations,
merger of charges, consecutive sentencing, and recommended sentences. The trial
judge correctly followed Ohio law on these matters in sentencing New.
{¶17} New was serving a period of post-release control when he pled guilty to
new felony charges. As a condition of that earlier post-release control, New was
prohibited from committing any felonies. When he committed additional felony offenses
while on post-release control, the trial judge was authorized to impose a consecutive
prison term for either the balance of the remaining post-release-control period, or one
year, whichever was greater. R.C. 2929.141(A)(1).
{¶18} At the time of the sentencing hearing, New had 15 months remaining on his
post-release-control term, so the trial judge’s imposition of that time as a consecutive
prison term with the sentences on New’s other felony charges was permissible. And the
11-month sentences imposed on the possession-of-fentanyl charge and the receiving-
stolen-property charge were within the statutory range for fifth-degree felonies. R.C.
2929.14(A)(5).
{¶19} Moreover, the 12-month sentence on the possession-of-methamphetamine
charge was jointly recommended by New and the prosecution. Such sentences are not
reviewable. R.C. 2953.08(D)(1). “A sentence is ‘authorized by law’ and not appealable
within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
provisions.” State v. Owens, 2016-Ohio-1203, ¶ 8 (5th Dist.), citing State v. Underwood, 2010-Ohio-1. The 12-month sentence comported with all mandatory sentencing
provisions.
{¶20} Lastly, the trial judge made all appropriate findings to impose the sentences
consecutively. A sentencing judge may impose consecutive sentences if that judge
makes the required findings under R.C. 2929.14(C)(4). The trial judge here made those
findings, noting that consecutive sentences were necessary to protect the public, that at
least two of the offenses were committed as part of a course of conduct, and the harm
caused by those offenses was so great or unusual that no single prison term for those
course-of-conduct offenses would adequately reflect the seriousness of the conduct.
{¶21} Nothing about the sentence or its imposition was improper, and any
challenge to it now is frivolous. {¶22} For the reasons explained above, we agree with the assessment of New’s
appellate counsel and conclude that this appeal is frivolous. In accordance with Anders,
we grant counsel’s request to withdraw as New’s lawyer, and we affirm the trial court’s
judgment.
By: Gormley, J.
Hoffman, P.J. and
Popham, J. concur.