State v. Whiting

2016 Ohio 3181

• Court: Ohio Court of Appeals
• Decided: May 26, 2016
• Docket: 103765
• Status: Published

Opinion

[Cite as State v. Whiting, 2016-Ohio-3181.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103765

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

NIESHA P. WHITING DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595765-A

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

RELEASED AND JOURNALIZED: May 26, 2016 ATTORNEY FOR APPELLANT

Mary Elaine Hall 245 Leader Building 526 Superior Avenue, East Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Carl Mazzone Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

Also listed:

Neisha Whiting Ohio Reformatory for Women 1479 Collins Avenue Marysville, Ohio 43040 EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Niesha Whiting, appealed the trial court’s judgment in

Cuyahoga C.P. No. CR-15-595765-A. Appointed counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1997), and has moved

for leave to withdraw as counsel pursuant to Loc.App.R. 16.

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

reviews the record and concludes that the appeal is “wholly frivolous,” counsel may

advise the court of that fact and request permission to withdraw from the case. Anders at

744. However, counsel’s request to withdraw must “be accompanied by a brief referring

to anything in the record that might arguably support the [a]ppeal.” Id. Counsel must

also furnish a copy of the brief to his client in sufficient time to allow the appellant to file

his own brief, pro se. Id.

{¶3} In this case, appointed counsel complied with the requirements of Anders and

Loc.R. 16(C). This court granted Whiting until March 18, 2016, to file a pro se brief.

Whiting did not file a pro se brief.

{¶4} In her Ander’s brief, appellate counsel set forth the following potential

assignment of error:

Whether the trial court imposed a two year consecutive sentence upon the defendant-appellant, Niesha Whiting contrary to law? {¶5} As part of the independent review, this court has examined and considered

the potential arguments identified in counsel’s Anders brief. In addition, this court has

conducted an independent examination of the relevant portions of the sentencing

transcript to determine if any arguably meritorious issues exist. Anders, 386 U.S. at 744,

87 S.Ct.1396, 18 L.Ed.2d 493.

{¶6} Anders instructs that if the appellate court determines that the appeal would

be “wholly frivolous” (that there are no legal points of arguable merit), “it may grant

counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are

concerned, or proceed to a decision on the merits, if state law so requires.” Anders, 386

U.S. at 744. If, however, the court finds any legal points arguable on their merits, it

must afford the appellant assistance of counsel before deciding the merits of the case. Id.

{¶7} Upon a complete review of the record, this court agrees that the potential

assignment of error advanced by appellate counsel is without merit and has found no

other error of arguable merit that resulted in prejudice to Whiting. The motion of

appointed counsel to withdraw is granted. This appeal is dismissed in accordance with

Anders.

{¶8} Appeal dismissed.

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

the Rules of Appellate Procedure. EILEEN T. GALLAGHER, JUDGE

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