State v. SandovalState v. Sandoval
Decided: March 16, 2012
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Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Brad F. Hubbell, for appellant.
Manuel Sandoval, Jr., pro se.
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OSOWIK, J.
{¶ 1} This is an appeal from the Sandusky County Court of Common Pleas. Appellant was found guilty of murder in violation of
{¶ 2} Counsel for appellant submitted a request to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In support of his Anders’ request to withdraw, counsel states that, after reviewing the record of proceedings in the trial court, counsel is unable to find any arguable issues on appeal. In conjunction with Anders, counsel for appellant sets forth the following two proposed assignments of error:
The trial court erred when it denied appellant a de novo sentencing hearing, corrected his voided sentence, failed to sentence him without unnecessary delay under
Criminal Rule 32(a)(1) , and did not sentence him to a different sentence.The trial court erred when it denied appellant‘s pro se Application for Leave to File a Motion for New Trial Based upon Newly Discovered Evidence.
{¶ 3} In addition, appellant, Manuel Sandoval, Jr., submitted a pro se brief setting forth the following six additional assignments of error:
The trial court abused its discretion in failing to grant defendant-appellant‘s motion for leave to file a motion for new trial based upon newly discovered evidence.
The trial court erred when it failed to sentence/re-sentence him without unnecessary delay violating his Sixth and Fourteenth Amendment
rights of the United States Constitution and Crim. R. 32(A) and pursuant toR.C. 2945.71 .The trial court erred when it failed to conduct a de novo hearing at the appellant‘s resentencing hearing.
The Trial court erred when it corrected and reimposed the void portion of the PRC Sentence, violating the due process clause of the Ohio and U.S. Constitution.
Defendant-appellant was denied the effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution.
Defendant-appellant was denied the effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution.
{¶ 4} Anders, supra, and State v. Duncan, 57 Ohio App.2d 93 (1978), detailed the procedure to be followed by appointed counsel who wishes to withdraw upon determining there is not a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsel, after conscientious examination of the case, believes any appeal to be wholly frivolous, he should so advise the court and request permission to withdraw. Id. at 744.
{¶ 5} This request to withdraw must be accompanied by a brief identifying anything in the record that could arguably support an appeal. Id. Counsel must furnish his client with a copy of the brief and request to withdraw. Id. Once these requirements have been satisfied, the appellate court then conducts a full examination of the
{¶ 6} In the case before us, appointed counsel for appellant has satisfied the requirements set forth in Anders, supra. Accordingly, we shall proceed with an examination of the potential assignments of error set forth by counsel for appellant, and the pro se brief, review the record from below, and determine if this appeal is meritorious.
{¶ 7} The following undisputed facts are relevant to the issues raised on appeal. On October 19, 2000, the court sentenced appellant to a term of 15 years to life in prison and upon release from prison a mandatory 5 years of postrelease control. The judge failed to comply with the statutory requirements of the postrelease control component of the sentence. On January 10, 2011, appellant filed a pro se motion for resentencing. On January 21, 2011, the court appointed counsel to represent appellant for a resentencing hearing set for February 2, 2011. On February 2, 2011, the trial court conducted the requisite, limited postrelease control resentencing hearing. The trial court properly resentenced appellant. This appeal ensued.
{¶ 8} Subsequently, appellant filed a pro se application for leave to file a motion for new trial premised upon alleged newly discovered evidence. The purported new
{¶ 9} In the first proposed assignment of error, counsel asserts that the “Trial Court erred when it denied him a de novo sentencing hearing, corrected his voided sentence, failed to sentence him without unnecessary delay under
{¶ 10} In the second proposed assignment of error withdrawing counsel argues that the trial court erred when it denied appellant‘s pro se application for leave to file a motion for new trial.
{¶ 11} Under
{¶ 12} The Ohio Supreme Court has held that a motion for new trial based on newly discovered evidence is only appropriate where the evidence:
(1) discloses a strong probability that it will change the result if a new trial is granted; (2) has been discovered since trial; (3) is such as could not in the exercise of due diligence have been discovered before trial; (4) is material to the issues; (5) is not merely cumulative to former evidence; and (6) does not merely impeach or contradict the former evidence.
{¶ 13} State v. Davis, 10th Dist. No. 03AP-1200, 2004-Ohio-6065, ¶ 7, citing State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), paragraph one of the syllabus, citing State v. Lopa, 96 Ohio St. 410, 117 N.E. 319 (1917).
{¶ 14} Here, the alleged new evidence appellant relies on is his wife‘s unsworn statement. Appellant‘s representation of her statement as constituting newly discovered evidence so as to warrant a new trial is misplaced. Significantly, her statement does not
{¶ 15} We will next consider pro se appellant‘s assignments of error.
{¶ 16} We note that appellant‘s first pro se assignment of error is substantively identical to withdrawing counsel‘s second assignment of error. It is likewise not well-taken on the same basis we previously set forth in addressing withdrawing counsel‘s second assignment.
{¶ 17} Likewise, given our prior determination in response to withdrawing counsel‘s first assignment of error, and based upon the seminal case of Fisher, pro se appellant‘s second assignment of error alleging failure to sentence without unnecessary delay is similarly not well-taken.
{¶ 18} Pro se appellant‘s third assignment of error is rooted in the same premise as his second assignment of error and is likewise not well-taken.
{¶ 19} Pro se appellant‘s fourth assignment constitutes a unilateral conclusion unsupported by law. There exists no legal support whatsoever for appellant‘s proposition. Thus, we need not belabor the point. Pro se appellant‘s fourth assignment of error is not well-taken.
{¶ 20} Pro se appellant‘s fifth and sixth assignments of error are identical and will be considered simultaneously. Appellant asserts he was denied effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the standard for judging ineffective assistance claims: “When a convicted defendant complains of the ineffectiveness of counsel‘s assistance, the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 687-688. Furthermore, “the defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
{¶ 21} Applying the first prong, there is nothing in appellant‘s pro se brief evidencing appointed counsel‘s representation fell below an objective standard of reasonableness. In fact, appointed counsel demonstrated familiarity with relevant case law. Pro se appellant fails to satisfy the first prong, thus no further review is warranted. Pro se appellant‘s fifth and sixth assignments of error are not well-taken.
{¶ 22} This court has conducted a full examination of the record of proceedings and has determined that this appeal is wholly frivolous. Appellant counsel‘s motion to withdraw is found well-taken and is granted. The judgment of the Sandusky County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
C.A. Nos. S-11-006
S-11-013
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________ JUDGE
Arlene Singer, P.J. _______________________________ JUDGE
Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE
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.