State v. BrockState v. Brock
Nicole I. Khoury, for appellant.
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DECISION AND JUDGMENT
SHERCK, J.
{¶ 1} Appellant, Corey Michael Brock, appeals the judgment of the Lucаs County Court of Common Pleas. After a jury trial, Brock was convicted of felonious assault, a felony of the second degree, and was sentenced to three years of community cоntrol. In this appeal as of right, his appointed appellate counsel has filed a “no merit”
{¶ 2} In addition to the indictment for felonious assault, Brock was also indicted separately for two counts of domestic violence, both felonies of the fourth degree. The two indictmеnts were tried together to a jury. Brock was convicted of felonious assault and one count of domestic violence; the jury entered a judgment of acquittal on the second count of domestic violence. The trial court entered judgments of conviction for one count of felonious assault and one count of domestic violence.
{¶ 3} At the outset, we note that Brock‘s appointed trial counsel only filed one notice of appeal, from the one judgment of conviction for felonious assault. Brock‘s appointеd appellate counsel‘s two proposed assignments of error both relate to both judgments of conviction and discuss both counts. The judgment of conviction on the indictment for domestic violence – while tried together with the felonious assault charge – was not appealed and is not properly before us for review. Therefore, we must limit our review of counsel‘s proposed assignments of error to the judgment appealed.
{¶ 4} The following facts were adduced at trial. On the morning of November 23, 2006, Brock and his girlfriend, Kimberly, with whom he had been cohabitating, argued. The argument escalated and Kimberly attempted to leave their house over Brock‘s objections. Brock grabbed Kimberly by the hair as she fled, pulled her into the house, and threw her to the floor, rendering her unconscious. Kimberly‘s
{¶ 5} Kimberly and her daughter discovered that Brock, before he left, had barricaded the front door from the outside with furniture. Later that same night, Brock returned to pack a bag. Arguments renewed, and Brock threw Kimberly and her daughter off of the front porch. Both women ran to a neighbor‘s house, where Kimberly called 911. A recording of that telephone call was introduced into evidence. Photographs, taken at the police station, of the bruising that Kimberly‘s daughter sustained in the fall were introduced into evidence.
{¶ 6} Police officers, who responded to Kimberly‘s 911 call, testified that they found the front door barricaded. They confiscated three “Samari swords” and a machete from the house. An expert witness in domestic violence also testified for the state.
{¶ 7} At the close of the state‘s еvidence, the trial court denied Brock‘s
{¶ 8} For the conviction for felonious assault, the trial court sentenced Brock to three years of community control.
{¶ 9} In Anders, the United States Supreme Court held thаt if counsel, after a conscientious examination of the case, determines it to be wholly frivolous he should so advise the court and request permission to withdraw. Id. at 744. See, also, State v. Duncan (1978), 57 Ohio App.2d 93. This request, however, must bе accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish his client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that he chooses. Id. Once these requirements have been satisfied, the appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is 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.
{¶ 11} Brock‘s appellate counsel has raised two potentially arguable matters for review. First, she raises the possibility that Brock‘s trial counsel rendered ineffective assistance. Second, she points to thе possibility that Brock‘s convictions were against the manifest weight of the evidence.
{¶ 12} In support of the first proposed assignment of error, Brock‘s counsel states that Brock‘s trial counsel did not allow Brock to testify on his own behalf. She also states that “Mr. Brock indicated that there were several tape recorded conversations that were relevant to his case, presented to his counsel and never introduced at trial.”
{¶ 13} The standard for a defendant to show he was deprived of ineffective assistance of counsel is high. A defеndant‘s counsel‘s “performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reаsonable representation and, in addition, prejudice arises from counsel‘s performance. (State v. Lytle (1976), 48 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed.)” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus.
{¶ 15} Next, Brock‘s appointed appellate counsel raises the possible issue that Brock‘s conviction was against the manifest weight of the evidence. To reiterate, this appeal is limited to Brock‘s conviction for felonious assault, a violation of
{¶ 16} Having independently reviewed the entire record, we agree with Brock‘s counsel and conclude that there exist no arguable, non-frivolous issues for appeal. Brock‘s counsel‘s motion to withdraw is well-taken and is hereby granted. Accordingly, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, P.J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
James R. Sherck, J. JUDGE
CONCUR. _______________________________
JUDGE
Judge James R. Sherck, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.