State v. WrightState v. Wright
For Plaintiff-Appellee: Attorney Paul Gains Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Rhys Cartwright-Jones 100 Federal Plaza East, Suite 101 Youngstown, Ohio 44503-1810
VUKOVICH, P.J.
¶{1} Defendant-appellant Bruce Wright appeals from his conviction and sentence in the Mahoning County Common Pleas Court of possession of crack cocaine, a violation of
STATEMENT OF CASE
¶{2} On October 25, 2007, Wright was indicted for possession of crack cocaine, a violation of
ANALYSIS
¶{3} When appellate counsel seeks to withdraw and discloses that there are no meritorious arguments for appeal, the filing is known as a no merit or an Anders brief. See Anders v. California (1967), 386 U.S. 738. In this district, it has also been called a Toney brief. See State v. Toney (1970), 23 Ohio App.2d 203.
¶{4} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent‘s appeal is frivolous:
¶{5} “3. Where 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
¶{6} “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.
¶{7} “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.
¶{8} “* * *
¶{9} “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.
¶{10} The Toney brief was filed by counsel on May 15, 2009. On May 26, 2009, this court informed Wright of counsel‘s Toney brief and granted him 30 days (until June 25, 2009) to file a written brief. 05/26/09 J.E. Wright did not file a pro se brief. Thus, we will proceed to independently examine the record to determine if the appeal is frivolous.
¶{11} Since Wright pled guilty he is only permitted to attack the voluntary, knowing, and intelligent nature of his plea and “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-130.
¶{12} Appellate counsel, in the Toney brief, raised the potential assignment of error: “The trial court failed to comply with the
¶{13}
¶{14} The nonconstitutional rights are that: 1) the defendant must be informed of the nature of the charges; 2) the defendant must be informed of the maximum penalty involved, which includes an advisement on post-release control, if it is applicable; 3) the defendant must be informed, if applicable, that he is not eligible for probation or the imposition of community control sanctions, and 4) the defendant must be informed that after entering a guilty plea or a no contest plea, the court may proceed to judgment and sentence.
¶{16} Likewise, the trial court substantially complied with
¶{17} Furthermore, in addition to complying with all the
¶{18} Thus, considering all the above, we find that the plea colloquy complied with
¶{20} We have previously held that when the same sentence is recommended by each party, even though it is not specified to be a jointly recommended sentence, it is a jointly recommended sentence. Baird, 7th Dist. No. 06CO4, 2007-Ohio-3400, at ¶15. At the sentencing hearing the state specifically indicated that in accordance with the plea agreement it was recommending a period of community control. 12/10/08 Sentencing Tr. 2. Wright‘s counsel then asked the court to impose a period of “community control with some order of treatment to help Mr. Wright from reoffending.” 12/10/08 Sentencing Tr. 2-3. Here, although neither party nor the trial court uses the words “jointly recommended sentence” at either the sentencing hearing or in the written plea, given the statements made at the sentencing hearing, we find that the community control sentence that was imposed by the trial court was a jointly recommended sentence.
¶{21} Consequently, considering the above espoused law, if the sentence was authorized by law, i.e. if it was within the applicable statutory range, no error regarding the sentence can be argued on appeal.
¶{22} In the sentencing judgment entry the trial court imposed two years of community control and indicated that it would impose a twelve month term of incarceration if Wright violated community control. This sentence fell within the applicable statutory range.
¶{23} Accordingly, since the imposed sentence was a jointly recommended sentence and was within the applicable statutory range, there is no appealable sentencing issue. After reviewing the file, we conclude that there are no arguable issues for appeal.
¶{24} For the foregoing reasons, the judgment of the trial court is hereby affirmed and counsel‘s motion to withdraw is granted.
VUKOVICH, P.J.
Donofrio, J., concurs.
Waite, J., concurs.