State v. Potter

2018 Ohio 4440

Opinion

[Cite as State v. Potter, 2018-Ohio-4440.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-28 : v. : Trial Court Case No. 2018-CR-09 : CHARLES W. POTTER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 2nd day of November, 2018.

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office, Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, P.O. Box 20368, Dayton, Ohio 45420 Attorney for Defendant-Appellant

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DONOVAN, J. -2-

{¶ 1} This matter is before the Court on the March 1, 2018 Notice of Appeal of

Charles W. Potter. Potter appeals from his February 27, 2018 judgment entry of

conviction, issued following his guilty plea on one count of Having a Weapon Under

Disability in violation of R.C. 2923.13(A)(2). The trial court sentenced Potter to 24 months

in prison. We hereby affirm the judgment of the trial court.

{¶ 2} Potter’s appellate counsel filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that “[a]fter a diligent review of

the case, Counsel could not find any errors at the trial level to be discussed herein.” As

this court has previously noted:

Anders equated a frivolous appeal with one that presents issues lacking in

arguable merit. An issue is not lacking in that regard merely because the

prosecution can be expected to present a strong argument in reply. An issue

lacks arguable merit if, on the facts and law involved, no responsible

contention can be made that it offers a basis for reversal.

State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4.

{¶ 3} On July 31, 2018, this Court afforded Potter an opportunity to file his own

pro se brief within 60 days, assigning any errors for our review, and none has been

received. Pursuant to Anders, we have performed our duty to independently review the

entire record, and we have found no potential assignments of error having arguable merit.

{¶ 4} In his brief, counsel for Potter identifies two potential assignments of error:

1. Whether the trial court erred by failing to comply with Crim.R. 11 in accepting

Potter’s plea[.] -3-

2. Whether Potter’s guilty plea was entered knowingly, intelligently, and

voluntarily?

In State v. Marbury, 2d Dist. Montgomery App. No. 19226, 2003-Ohio-3242, ¶ 7, we

observed:

We are charged by Anders to determine whether any issues

involving potentially reversible error that are raised by appellate counsel or

by a defendant in his pro se brief are “wholly frivolous.” [Anders at 744.]

If we find that any issue presented or which an independent analysis reveals

is not wholly frivolous, we must appoint different appellate counsel to

represent the defendant.

Id., citing Pullen.

{¶ 5} Having performed our duty under Anders v. California of independent review

of the record, we have found nothing to suggest Potter’s guilty plea was anything less

than knowingly, intelligently, and voluntarily entered. The record reflects a thorough

Crim.R. 11 plea colloquoy, and Potter indicated he understood the proceedings and was

satisfied with his attorney’s representation of him. Furthermore, he was advised of all the

potential consequences of his guilty plea.

{¶ 6} Crim.R. 11(C)(2) requires the court to address the defendant personally and:

(a) determine that the defendant is making the plea voluntarily, with an understanding of

the nature of the charges and the maximum penalty, and, if applicable, that the defendant

is not eligible for probation or for the imposition of community control sanctions; (b) inform

the defendant of and determine that the defendant understands the effect of the plea and

that the court, upon acceptance of the plea, may proceed with judgment and sentencing; -4-

and (c) inform the defendant and determine that he or she understands that, by entering

the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against

him or her, to have compulsory process for obtaining witnesses, and to require the State

to prove guilt beyond a reasonable doubt at a trial at which he or she cannot be compelled

to testify against himself or herself. State v. Brown, 2d Dist. Montgomery No. 21896, 2007-

Ohio-6675, ¶ 3. As indicated above, all of this was done by the trial court.

{¶ 7} Upon review of the plea transcript, we find no arguable merit to the potential

assignments of error. Furthermore, having conducted our own independent review of the

record, including sentencing, we find no arguably meritorious issues to address.

{¶ 8} The judgment of the trial court is affirmed.

WELBAUM, P.J. and TUCKER, J., concur.

Copies sent to:

Andrew P. Pickering James S. Armstrong Charles W. Potter Hon. Richard J. O’Neill