State v. Shamblin

2011 Ohio 2688

Opinion

[Cite as State v. Shamblin, 2011-Ohio-2688.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2010-CA-00126 KAYLON D. SHAMBLIN : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case Nos. 10CR312 and 10CR361

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 2, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

No Appearance JUSTIN T. RADIC 57 East Main Street Newark, OH 43055 [Cite as State v. Shamblin, 2011-Ohio-2688.]

Gwin, P.J.

{¶1} Appellant, Kaylon D. Shamblin, was indicted in two cases which were later

consolidated for the purposes of sentencing. In the first case, Appellant was indicted on

one count of abduction, a felony of the third degree, in violation of R.C. 2905.02(A)(2),

one count of gross sexual imposition, a felony of the fourth degree, in violation of R.C.

2907.05(A)(1), and one count of disseminating matter harmful to juveniles, a felony of

the fifth degree. In the second case, Appellant was indicted on four counts of unlawful

sexual conduct with a minor, felonies of the fourth degree in violation of R.C. 2907.04(A)

and (B)(1).

{¶2} Appellant entered pleas of guilty to all counts in both cases. Appellant

was sentenced to a term of two years on the abduction charge, a term of one year on

the gross sexual imposition charge, and a nine month prison term for disseminating

matter harmful to juveniles. All three of these sentences were ordered served

concurrent with one another, however, they were also ordered to be served consecutive

to the sentences imposed in the second case for unlawful sexual conduct with a minor.

The trial court imposed one year prison terms for each of the four counts of unlawful

sexual conduct with a minor for a total prison term of six years. The trial court also

imposed a five year period of mandatory post release control.

{¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth two proposed

Assignments of Error. Appellant did not file a pro se brief alleging any additional

Assignments of Error. Appellee did not file a brief. Counsel for Appellant has raised a Licking County, Case No. 2010-CA-00126 3

potential assignment of error asking this Court to determine whether Appellant’s plea

was entered knowingly, intelligently, and voluntarily.

{¶4} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

{¶5} Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738. We now will address the merits of Appellant’s Potential

Assignment of Error.

I.

{¶6} In his potential Assignment of Error, Appellant suggests his plea was not

entered knowingly, intelligently, and voluntarily. A review of the plea hearing

demonstrates the trial court complied with the mandate of Crim. R. 11 in accepting

Appellant’s guilty plea. The trial court explained to Appellant all of his rights, the

potential penalties, and the effect of entering the guilty pleas. Licking County, Case No. 2010-CA-00126 4

{¶7} As we outlined in State v. Sullivan, 2007 WL 2410108, 2-3 (Ohio App. 5

Dist.,2007), a determination of whether a plea is knowing, intelligent, and voluntary is

based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272. If a

criminal defendant claims that his plea was not knowingly, voluntarily, and intelligently

made, the reviewing court must review the totality of the circumstances in order to

determine whether or not the defendant's claim has merit. State v. Nero (1990), 56 Ohio

St.3d 106, 108.

{¶8} To ensure that a plea is made knowingly and intelligently, a trial court

must engage in oral dialogue with the defendant in accordance with Crim.R. 11(C)(2).

Engle, 74 Ohio St.3d at 527.

{¶9} The Appellant indicated he had read the indictment, read plea of guilty

forms, which contain an explanation of Appellant’s constitutional rights, and discussed

these items with his attorney. The trial court orally went over all of the required

information to comply with Crim.R. 11. There is absolutely no evidence Appellant’s plea

was not entered knowingly, intelligently, and voluntarily.

{¶10} Appellant’s first Assignment of Error is overruled. Licking County, Case No. 2010-CA-00126 5

{¶11} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that no arguably meritorious claims exist upon which to base

an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant

counsel's request to withdraw, and affirm the judgment of the Licking County Court of

Common Pleas.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE WSG:clw 0601 [Cite as State v. Shamblin, 2011-Ohio-2688.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : KAYLON D. SHAMBLIN : : : Defendant-Appellant : CASE NO. 2010-CA-00126

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Licking County Court of Common Pleas is affirmed. Costs to appellant.

_________________________________ HON. JOHN W. WISE