State v. Wells

2014 Ohio 3238

Opinion

[Cite as State v. Wells, 2014-Ohio-3238.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100732

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ANTHONY WELLS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-576016-A

BEFORE: Kilbane, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: July 24, 2014 ATTORNEY FOR APPELLANT

Allison S. Breneman 1220 West 6th Street Suite 303 Cleveland, Ohio 44113

FOR APPELLANT

Anthony Wells, pro se #650-238, Lorain Correctional Facility 2075 South Avon Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Brent C. Kirvel Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Anthony Wells (“Wells”), appeals from his guilty plea

and sentence for rape. For the reasons set forth below, we affirm.

{¶2} In July 2013, Wells was charged with four counts of rape, two counts of

gross sexual imposition, sexual battery, and kidnapping. The charges arise from an

incident where the minor victim went to a nightclub with her cousin while she was highly

intoxicated. Wells worked as a security guard at the nightclub and offered his car as a

resting place. The victim rested in Wells’s car while her cousin and friends were inside

the club. Wells, aware that the victim was highly intoxicated, left the club in his car

with the victim and raped her. He returned to the club approximately 45 minutes later.

The victim was taken to the hospital where she was treated for sexual assault. Wells’s

DNA was discovered from testing samples taken during the sexual assault exam.

{¶3} In October 2013, the matter proceeded to a jury trial. On the second day

of trial, Wells entered into a plea agreement. Under the agreement, Wells pled guilty to

Count 2 of the indictment (rape), and the remaining counts were nolled. The parties

entered into an agreed sentence of ten years in prison. The trial court proceeded with

sentencing at the conclusion of the plea hearing and sentenced Wells to ten years in

prison. The trial court also classified Wells as a Tier III sex offender.

{¶4} In December 2013, Wells filed an appeal in this court. His appeal,

however, was dismissed as untimely. In January 2014, Wells filed a motion for reconsideration. We granted his motion, treating it as a motion for a delayed appeal.

On appeal, Wells was appointed counsel, who subsequently filed a motion to withdraw

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

indicating that after a thorough review of the record, proceeding with the appeal would be

frivolous. Appellate counsel served Wells with a copy of the motion to withdraw and

Anders brief. Wells was then granted time to file a pro se brief.

{¶5} In Anders, the United States Supreme Court held that if after a

conscientious examination of the record, appellant’s counsel concludes the case is wholly

frivolous, then counsel should so advise the court and request permission to withdraw.

Id. at 744. Counsel’s request must be accompanied by a brief identifying anything in the

record that could arguably support the 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.

{¶6} Once appellant’s counsel satisfies these requirements, this court must fully

examine the proceedings below to determine if any arguably meritorious issues exist. If

the court 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.

{¶7} In the instant case, appellant’s counsel has complied with the Anders

requirements, and Wells filed his pro se brief. In his brief, Wells argues that defense counsel was ineffective for failing to adequately prepare for trial and that his plea was not

knowingly, voluntarily, and intelligently made.

{¶8} In our independent review of the proceedings below, we have determined

the only issue that could be presented in this appeal is whether Wells’s guilty plea was

{¶9} Under Crim.R. 11(C)(2), a court shall not accept a guilty plea in a felony

case without first addressing the defendant personally and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved[.]

(b) Informing the defendant of and determining that the defendant understands the effect of the plea * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

{¶10} In compliance with Crim.R. 11 and prior to accepting Wells’s plea, the trial

court advised Wells of the nature of the charges, the maximum penalties, the effect of the

plea, and the constitutional rights and other rights Wells would be waiving by pleading

guilty. At the guilty plea hearing, Wells stated that he was very satisfied with the

representation he received from counsel, and that he understood the rights he was waiving

and the offenses to which he was pleading guilty. (Tr. 436-441.) Therefore, the record

reflects that Wells’s plea was knowingly, intelligently, and voluntarily made. Because no meritorious argument exists, we grant counsel’s request to withdraw and affirm the

trial court’s judgment.

{¶11} Judgment affirmed.

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

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

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

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR