State v. KocakState v. Kocak
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Ryan D. Ingram, 7330 Market Street, Youngstown, Ohio 44512
WAITE, J.
{¶1} Appellant Andrew Kocak appeals a September 10, 2015 Mahoning County Common Pleas Court judgment entry finding him guilty of violating his probation and reimposing his original sentence. Appellant‘s counsel filed a no merit brief requesting leave to withdraw. A complete review of the case reveals no appealable issues. Accordingly, appointed counsel‘s motion to withdraw is granted and the convictions and sentence are affirmed.
Factual and Procedural History
{¶2} On September 18, 2014, Appellant was indicted on the following charges: endangering children, a felony of the second degree in violation of
{¶3} The trial court imposed the following sentence: three years of incarceration for endangering children, eighteen months on the corrupting another with drugs count, three years for felonious assault, and one year of incarceration on each intimidation count. The trial court ordered the sentences to run concurrently and concurrent to Appellant‘s sentence in case number 13 CR 1172. Hence, the trial court imposed an aggregate sentence of three years of incarceration.
{¶5} On August 3, 2015, the state filed a motion to extend or revoke Appellant‘s probation. Appellant stipulated to probable cause and was found guilty of a probation violation. On September 10, 2015, the trial court reimposed Appellant‘s three-year sentence, with credit for 335 days served. This timely appeal followed.
No Merit Brief
{¶6} Based on a review of this matter, appellate counsel seeks to withdraw after finding no potentially meritorious arguments for appeal. This filing is known as a no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). In our district, it is referred to as a Toney brief. See State v. Toney, 23 Ohio App.2d 203, 262 N.E. 2d 419 (7th Dist.1970).
{¶7} In Toney, this Court established the procedure to be used when appellate counsel wishes to withdraw from a case deemed a frivolous appeal.
3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent‘s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court
by brief and request that he be permitted to withdraw as counsel of record. 4. Court-appointed counsel‘s conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.
5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
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7. Where the Court of Appeals determines that an indigent‘s appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.
Id. at syllabus.
{¶8} On January 15, 2016, appellate counsel filed the no merit brief in this matter. On February 1, 2016, we filed a judgment entry informing Appellant that his counsel had filed a no merit brief and giving him thirty days to file his own brief. Appellant failed to file a brief in this matter. Accordingly, we must independently
Judicial Release
{¶9} “The court, in its discretion, may revoke the judicial release if the offender violates the community control sanction described in division (R)(1) of this section.”
{¶10} At the hearing, Appellant admitted to stealing the following items from his mother: a car, an iPad, three television sets, and $40. He also admitted that he bought and ingested heroin in an attempt to kill himself. Although he denied threatening or attempting to harm the victims, his drug use and theft crimes constitute substantial evidence of a probation violation. Based on Appellant‘s admissions, the trial court did not abuse its discretion in revoking Appellant‘s judicial release. Thus, there are no appealable issues regarding the revocation of Appellant‘s judicial release.
{¶11} Pursuant to
If the court grants a motion for judicial release under this section, the court shall order the release of the eligible offender, shall place the eligible offender under an appropriate community control sanction, under appropriate conditions, and under the supervision of the department of probation serving the court and shall reserve the right to reimpose the sentence that it reduced if the offender violates the sanction. (Emphasis added.)
{¶12} The trial court‘s July 29, 2015 judgment entry stated that “[t]he Defendant was further advised that should he violate any term or condition of his Community Control Sanction, this court would send him back to the penitentiary for the remainder of his sentence.” (Emphasis deleted.) (7/29/15 J.E., p. 1.) Thus, pursuant to
Conclusion
{¶13} Appellate counsel seeks to withdraw as a review of the record did not reveal any potentially meritorious arguments. For the reasons provided, this record reveals no potentially meritorious arguments. Accordingly, counsel‘s motion to withdraw is granted and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.