Opinion
Case No. 17-CA-8
03-12-2018
STATE OF OHIO Plaintiff-Appellee v. SHAWN MORRISON Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee NO RESPONSE For Defendant-Appellant JAMES SWEENEY 341 South Third Street Suite 100 Columbus, OH 43215
JUDGES: Hon. Patricia A. Delaney P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 16-CR-46 JUDGMENT: Dismissed APPEARANCES: For Plaintiff-Appellee NO RESPONSE For Defendant-Appellant JAMES SWEENEY
341 South Third Street
Suite 100
Columbus, OH 43215 Wise, Earle, J.
{¶ 1} On March 26, 2016, members of the Perry County Sherriff's Department, assisted by other agencies, obtained a search warrant for defendant-appellant Shawn Morrison's home. The search revealed a marijuana grow operation. Officers seized 129 marijuana plants, cultivation equipment, cash, guns, and methamphetamine, in addition to property subject to forfeiture including vehicles and bank accounts.
{¶ 2} On June 21, 2016, the Perry County Grand Jury returned an indictment charging appellant with one count of illegal cultivation in the vicinity of a juvenile, with an accompanying forfeiture specification, a felony of the second degree; one count of illegal assembly or possession of chemicals for manufacture of drugs with a forfeiture specification, a felony of the second degree; possession of marijuana with a forfeiture specification; aggravated possession of drugs, a felony of the fifth degree; and having weapons under disability, with a forfeiture specification, a felony of the third degree.
{¶ 3} On January 4, 2017, appellant entered a negotiated plea of guilty to illegal cultivation with a forfeiture specification, a felony of the third degree. Appellant agreed to forfeit property seized during the search of his property and enumerated in case number Perry County Court of Common Pleas case number 16-CV-00127. In exchange, the state dismissed the remaining counts of the indictment and recommended 9 months incarceration. Appellant did not challenge his conviction or sentence.
{¶ 4} On July 28, 2017, appellant, pro se, filed a Motion for Return of Seized Property. On July 31, 2017, the trial court denied the motion finding "The seized property was forfeited in Case No. 16-CV-00127 by agreed entry of forfeiture, which was signed by the Prosecuting Attorney, the Defendant and his Attorney and filed January 4, 2017."
{¶ 5} On August 21, 2017, appellant filed a Notice of Appeal and a Motion for Appointment of Counsel. Attorney James S. Sweeney was appointed and on December 26, 2017 filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), asserting he found no potential assignments of error having arguable merit. Attorney Sweeney also filed a motion to withdraw. On December 29, 2017, appellant was advised to file a pro se brief by January 30, 2018. He did not do so.
{¶ 6} This court must now determine whether Attorney Sweeney's request to withdraw should be granted and whether to dismiss the instant appeal as wholly frivolous. In Anders at 744, the Court established five criteria which must be met before a motion to withdraw may be granted:
(1) A showing appellant's counsel thoroughly reviewed the transcript and record in the case before determining the appeal to be frivolous.
(2) A showing a motion to withdraw has been filed by appellant's counsel.
(3) The existence of a brief filed by appellant's counsel raising any potential assignments of error.
(4) A showing appellant's counsel provided to the appellant a copy of said brief.
(5) A showing appellant's counsel provided appellant adequate opportunity to file a pro se brief raising any additional assignments of error appellant believes the appellate court should address.
{¶ 7} We find the Attorney Sweeney has met his obligations under Anders, and appellant was given an opportunity to file a pro se brief. We have further performed our duty under Anders to review the record independently, and we also find no potential assignments of error having arguable merit. See, State v. Parrish, 2nd Dist. Montgomery No. 25599, 2013-Ohio-5622, ¶ 1. Accordingly, Attorney Sweeney's Motion to Withdraw is granted and the appeal is dismissed. By Wise, Earle, J. Delaney, P.J. and Baldwin, J. concur. EEW/rw