State v. HopkinsState v. Hopkins
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Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
John Peter Millon, for appellant.
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YARBROUGH, J.
{¶ 1} Appellant Eduardo Hopkins appeals from an April 14, 2010 judgment of the Lucas County Court of Common Pleas denying his “Motion for Sentencing.” Hopkins’ appointed counsel has filed a “no merit” brief and requested leave to withdraw as counsel, pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
{¶ 2} Hopkins was indicted on one count of possession of cocaine in violation of
{¶ 3} On February 9, 2010, Hopkins filed a “Motion for Sentencing” in which he argued that the October 17, 2006 judgment entry was void because it failed to notify him that his sentence included a mandatory term of three years of postrelease control. In his motion, Hopkins sought to have the trial court vacate the October 17, 2006 sentence and conduct a de novo sentencing hearing. On April 14, 2010, the trial court denied this motion, finding that the October 17, 2006 judgment entry was not defective, and, even assuming that it was, the failure to include a postrelease control requirement did not “negate, limit, or otherwise affect the mandatory period of post-release control that is required under division (B) of section
{¶ 5} Following the resentencing, Hopkins’ appointed counsel filed his brief and motion requesting withdrawal as appellate counsel, pursuant to the guidelines established in Anders v. California, supra. Counsel states that, after reviewing all the relevant facts and legal arguments regarding this case, he concludes that the filing of an appeal would be without merit and frivolous. Counsel further certifies that a copy of both the brief and motion to withdraw have been served upon Hopkins. Hopkins has not filed a pro se brief or otherwise responded to counsel‘s request to withdraw. The state has filed a brief in response, but does not oppose counsel‘s motion to withdraw. Upon consideration, we conclude that counsel‘s brief is consistent with the requirements set forth in Anders, supra.
{¶ 6} We are required, pursuant to Anders, to review the record and independently determine whether counsel has made a diligent effort and that the proceedings below were free from prejudicial error. Id. at 744. If we find any legal issue that is arguable on the merits, and therefore not wholly frivolous, new appellate counsel must be appointed to argue the appeal.
{¶ 8} “1. Trial court erred, to the detriment of Appellant, by failing to properly notify the Appellant of the mandatory 3 year period of post release control and the accompanying penalties for violating post release control at the PLEA and SENTENCING HEARING on October 17, 2006, but corrected said error sua sponte as per the requirements of
{¶ 9} Counsel argues that the October 17, 2006 sentencing failed to notify Hopkins that his postrelease control was mandatory, and therefore the sentence is contrary to law and void. As a result, counsel asserts that the trial court erred when it denied Hopkins’ motion for resentencing. Nevertheless, counsel concludes that this appeal is frivolous because the trial court sua sponte resentenced Hopkins on August 18, 2010, thereby properly remedying the October 17, 2006 sentence, and affording Hopkins the relief he sought in his motion for resentencing.
{¶ 10} However, we cannot agree that the August 18, 2010 judgment corrected any alleged deficiencies in the October 17, 2006 sentence because the August 18, 2010 judgment is void. While we are certainly mindful of the pressure that is on trial courts to correct any deficiencies in sentencing regarding postrelease control prior to the offender‘s release from prison, the fact remains that, in this case, the trial court lacked jurisdiction to resentence Hopkins. Once an appeal is taken, the trial court is divested of jurisdiction until the appeal is decided or remanded, except where the retention of jurisdiction is “not
{¶ 11} Consequently, we conclude that the issue of whether the trial court erred when it denied Hopkins’ motion for resentencing is not wholly frivolous, but rather is arguable on the merits. Because an Anders brief is not a substitute for an appellate brief on the merits, we must “appoint counsel to pursue the appeal and direct that counsel to prepare an advocate‘s brief * * * ” before we can decide the merit of the issue. McCoy v. Court of Appeals of Wisconsin, District 1 (1988), 486 U.S. 429, 444, 108 S.Ct. 1895, 100 L.Ed.2d 440. See, also, Penson v. Ohio (1988), 488 U.S. 75, 85, 109 S.Ct. 346, 102 L.Ed.2d 300. Newly appointed counsel must also be free to argue any other issue he or she may find after a review of the record.
{¶ 12} Accordingly, appellate counsel‘s motion to withdraw is found well-taken and is, hereby, granted. We appoint Timothy Longacre, 416 N. Erie Street, Suite 100, Toledo, Ohio, 43604, as appellate counsel in this matter, and direct him to prepare an appellate brief discussing the arguable issues identified in this decision, and any further arguable issues that may be found in the record within 30 days of the date of this decision
MOTION GRANTED.
Mark L. Pietrykowski, J.
Thomas J. Osowik, P.J.
Stephen A. Yarbrough, J. CONCUR.
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.