State v. Sturtz

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[Cite as State v. Sturtz, 2009-Ohio-5645.] COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsBRANDON STURTZ Defendant-Appellant : : : : : : : : : JUDGES: Hon: Sheila G. Farmer, P.J. Hon: W. Scott Gwin, J. Hon: William B. Hoffman,J. Case No. 09-CA-0013 OPINION CHARACTER OF PROCEEDING: Appeal from the Coshocton County Municipal Court, Case No. CRB0900171 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: October 16, 2009 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant ROBERT SKELTON ASSISTANT LAW DIRECTOR 760 Chestnut Street Coshocton, OH 43812 JEFFREY A. MULLEN Coshocton County Public Defender 239 N. Fourth Street Coshocton, OH 43812 [Cite as State v. Sturtz, 2009-Ohio-5645.] Gwin, J. {¶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. Coshocton County, Case No. 09-CA-0013 3 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. Coshocton County, Case No. 09-CA-0013 {¶6} 4 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. By Gwin, J., Farmer, P.J., and Hoffman, J., concur _________________________________ HON. W. SCOTT GWIN _________________________________ HON. SHEILA G. FARMER _________________________________ HON. WILLIAM B. HOFFMAN WSG:clw 1006 [Cite as State v. Sturtz, 2009-Ohio-5645.] IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsBRANDON STURTZ Defendant-Appellant : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 09-CA-0013 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. _________________________________ HON. W. SCOTT GWIN _________________________________ HON. SHEILA G. FARMER _________________________________ HON. WILLIAM B. HOFFMAN

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