State v. Tackett, 2015 Ohio 3411

Dale L. Tackett was convicted of two OVI counts with a specification alleging more than five prior like offenses; this court previously affirmed the convictions but vacated and remanded for resentencing.
On remand the trial court resentenced Tackett; he filed two pro se notices of appeal (consolidated) and was appointed appellate counsel.
Appellate counsel filed an Anders brief and motion to withdraw, stating no nonfrivolous issues; Tackett filed a pro se brief asserting sentencing and constitutional challenges to the specification.
Tackett’s June 24, 2014 notice appealed the March 13, 2014 sentencing entry (filed late); his June 27, 2014 notice appealed the June 4, 2014 denial of his motion to vacate and denial of judicial release.
The court reviewed the record under Anders, held the resentencing complied with the court’s prior mandate, found some arguments barred by the law-of-the-case doctrine or untimely, and concluded the denial of judicial release is not appealable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal from March 13, 2014 sentencing entry	State: appellee asserts appeal must be timely	Tackett contends resentencing errors arose from that entry	Appeal from March 13 entry was untimely and those arguments are not properly before the court
Validity of resentencing under prior opinion	State: trial court correctly followed this court’s mandate	Tackett argues prior decision was erroneous/unconstitutional and resentencing was improper	Law-of-the-case bars relitigation; trial court correctly applied prior mandate; court will not reexamine its prior opinion
Appealability of denial of judicial release (June 4, 2014)	State: denial of judicial release is not appealable	Tackett appealed denial of judicial release	Denial of judicial release is not subject to appellate review; appeal dismissed on that ground
Adequacy of Anders brief / appointment of new counsel	State supports counsel’s withdrawal if no nonfrivolous issues exist	Tackett sought new counsel to challenge resentencing and constitutional claims	After independent review, court found no arguable issues; Anders process was satisfied and counsel’s withdrawal is permitted

Anders v. California, 386 U.S. 738 (1967) (appellate counsel must file brief identifying any nonfrivolous issues; court reviews record independently)
Nolan v. Nolan, 11 Ohio St.3d 1 (1984) (explaining law-of-the-case doctrine)
State v. Tackett, 137 Ohio St.3d 1476 (Ohio 2014) (prior appeal disposing of sentencing issues; appellate mandate followed on remand)
Foster v. City of Wickliffe, 175 Ohio App.3d 526 (2007) (discussion of law-of-the-case and appellate hierarchy)