STATE OF OHIO v. MICHAEL LARICHE
No. 108512
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
March 5, 2020
2020-Ohio-804
Case Nos. CR-13-575887-C, CR-15-595648-A, and CR-16-611898-A
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: March 5, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-13-575887-C, CR-15-595648-A, and CR-16-611898-A
Appearances:
Olivia A. Myers, for appellant.
LARRY A. JONES, SR., J.:
{¶ 1} Defendant-appellant Michael Lariche (“Lariche“) filed a notice of appeal of the trial court‘s April 2, 2019 judgments resentencing him pursuant to this court‘s mandate in State v. Lariche, 8th Dist. Cuyahoga No. 106106, 2018-Ohio-3581. Lariche was appointed counsel, and after counsel‘s review of the record, she filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking leave to withdraw as counsel and dismiss the appeal.
{¶ 2} This appeal involves drug-related charges brought against Lariche in three cases: Cuyahoga C.P. Nos. CR-13-575887-C, CR-15-595648-A, and CR-16-611898-A. In the first two cases, Lariche violated his community control sanctions, and in the third case he was charged with escape for removing his court-ordered GPS monitoring device. After Lariche had violated his community control sanctions several times, the trial court terminated the sanctions and sentenced Lariche to a five-year prison term, which included consecutive terms. Lariche appealed, challenging the sentence.
{¶ 3} This court found that the trial court failed to make all the statutorily mandated findings for the imposition of consecutive terms under
{¶ 4} As mentioned, based on the belief that no prejudicial error occurred in the trial court and that any ground for appeal would be frivolous, Lariche‘s counsel filed a motion to withdraw and dismiss the appeal under the authority of Anders. This court granted Lariche approximately a month and a half after counsel‘s
{¶ 5} In Anders, the United States Supreme Court outlined the procedure that counsel must follow to withdraw due to the lack of any meritorious grounds for appeal. Specifically, if appointed counsel, after a conscientious examination of the case, determines the appeal to be wholly frivolous, he or she should advise the court of that fact and request permission to withdraw. Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, at 744. However, the request must be accompanied by a brief identifying anything in the record that could arguably support the appeal. Id. Counsel must also furnish the client with a copy of the brief, and the defendant must be allowed sufficient time to file his or her own brief, pro se. Id.
{¶ 6} When these requirements have been met, the appellate court must complete an independent examination of the trial court proceedings to determine whether the appeal is “wholly frivolous.” Id. If the court, in its independent review, determines that a possible issue exists, it must discharge current counsel and appoint new counsel to prosecute the appeal. Id. If, however, the court determines that the appeal is wholly frivolous, the appellate court will grant counsel‘s motion to withdraw and dismiss the appeal. Id.
{¶ 7} Former Loc.App.R. 16(C) of the Eighth District Court of Appeals set forth the procedure regarding Anders briefs and defense counsel‘s motions to withdraw. The rule was amended, effective February 1, 2019, however, and now no longer includes any procedure on Anders briefs and motions to withdraw. This
Potential Issue for Review under Anders
{¶ 8} Lariche‘s appointed counsel reviewed the record relating to the resentencing (the only issue that could be appealed), and concluded that she could not make any meritorious arguments on Lariche‘s behalf. Nonetheless, she presents the imposition of consecutive sentences as a possible assignment of error for our Anders review.
{¶ 9} Our review of felony sentences is under the standard provided in
{¶ 10} Before a trial court may impose consecutive sentences, the court must make specific findings mandated by
{¶ 11}
The Court finds [consecutive sentences] are necessary to protect the public and punish the offender and not disproportionate to the seriousness of the conduct, and the crimes were committed while awaiting trial or sentencing or under sanction or under postrelease control, and that the offender‘s criminal history shows that consecutive terms are necessary to protect the public.
{¶ 13} The second instance in which the trial court imposed consecutive sentences was in Case No. CR-611898-A, where it ordered the sentence on the sole count to run consecutive to the sentences in the other two cases (Case Nos. CR-575887-C and CR-595648-A). In doing so, the court made the following findings:
The Court finds that [consecutive sentences are] necessary to protect the public and punish the offender and not disproportionate to the seriousness of the conduct, and the crimes were committed while awaiting trial or under sentencing or under sanction or under postrelease control, and that the offender‘s criminal history shows that consecutive terms are needed to protect the public.
{¶ 14} The findings were repeated in the trial court‘s sentencing judgment entries. Therefore, the trial court made the statutorily mandated findings for the imposition of consecutive sentences and incorporated those findings into its sentencing judgment entries as required under Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶ 15} Upon further review, we do not find, by clear and convincing evidence, that the record does not support the trial court‘s consecutive sentence
{¶ 16} Accordingly, pursuant to Anders, counsel‘s request to withdraw is granted, and the appeal is dismissed.
{¶ 17} Dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR