Opinion
No. 09-CA-0013.
DATE OF JUDGMENT ENTRY: October 16, 2009.
Appeal from the Coshocton County Municipal Court, Case No. CRB0900171.
Affirmed.
Robert Skelton, Assistant Law Director, for Plaintiff-Appellee.
Jeffrey A. Mullen, Coshocton County Public Defender, for Defendant-Appellant.
OPINION
{¶ 1} Appellant was charged with one count of Aggravated Menacing, a misdemeanor of the first degree in violation of R.C. 2903.21(A), one count of Telecommunications Harassment, a misdemeanor of the first degree in violation of R.C. 2917.21(A)(1), and one count of Criminal Damaging a misdemeanor of the second degree in violation of R.C. 2909.06(A)(1). On the day of trial, Appellant entered no contest pleas to all three counts waiving presentation of evidence and stipulating to the trial court's finding of guilt. Appellant was found guilty of each of the charges by the trial court. The trial court imposed an aggregate sentence of 180 days in jail with all but 45 days in jail suspended upon the condition Appellant comply with the terms of supervised probation.
{¶ 2} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924, indicating that the within appeal was wholly frivolous. Appellant did not file a pro se brief alleging any Assignments of Error.
I.
{¶ 3} The charges in this case arose from the allegations the Appellant threw a brick through the victim's car window and sent the victim threatening voice mails and text messages. At least one voice mail message referenced how well a brick goes through glass. The messages further threatened physical harm upon the victim.
{¶ 4} In Anders, the United States Supreme Court held if, after a conscientious examination of the record, a defendant's counsel concludes the case is wholly frivolous, then he should so advise the court and request permission to withdraw. Id. at 744. Counsel must accompany his request with a brief identifying anything in the record that could arguably support his client's appeal. Id. Counsel also must: (1) furnish his client with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any matters that the client chooses. Id. Once the defendant's counsel satisfies these requirements, the appellate court must fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court also determines that the appeal is wholly frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id.
{¶ 5} Counsel in this matter has followed the procedure in Anders v. California (1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel's motion to withdraw.
{¶ 6} After independently reviewing the record, we agree with counsel's conclusion that no arguably meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the Coshocton Municipal Court.
Gwin, J., Farmer, P.J., and Hoffman, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, we find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the Coshocton Municipal Court. Costs to appellant.