State v. Kerby
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[Cite as State v. Kerby, 2010-Ohio-3346.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO Plaintiff-Appellee v. WILLIAM KERBY Defendant-Appellant : : : : : : : : : : Appellate Case No. 09-CA-59 Trial Court Case No. 01-CR-922 (Criminal Appeal from (Common Pleas Court) ........... OPINION th Rendered on the 16 day of July, 2010. ........... AMY SMITH, Atty. Reg. #0081712, Clark County Prosecutor s Office, 50 East Columbia Street, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee CARY BISHOP, Atty. Reg. #0077369, 79 Trails East Drive, Pataskala, Ohio 43062 Attorney for Defendant-Appellant WILLIAM KERBY, #455-089, Lebanon Correctional Institution, Post Office Box 56, Lebanon, Ohio 45036 Defendant-Appellant ............. BROGAN, J. {¶ 1} William Kerby appeals from the trial court s order denying his motion to withdraw his no-contest pleas to aggravated murder with a firearm specification, 2 murder with a firearm specification, aggravated robbery with a firearm specification, tampering with evidence, and felonious assault. {¶ 2} In his withdrawal motion, Kerby contended he should be permitted to withdraw his previously entered no-contest pleas because the indictment charging him with aggravated murder and aggravated robbery failed to allege that he knowingly possessed a deadly weapon or firearm. The trial court overruled Kerby s motion without elaboration. {¶ 3} Kerby s appointed appellate counsel filed an Anders brief stating he could find no arguable merit to his client s appeal. See Anders v. California, 386 U.S. 738 (1967). Kerby filed his own brief asserting the trial court erred in denying his withdrawal motion because his convictions for aggravated murder and aggravated robbery were void because the indictment failed to allege that he knowingly possessed the deadly weapon he was alleged to have possessed in having committed these offenses. Kerby relies on the definition of possession in R.C. 2901.21(D)(1), which provides that the accused acted knowingly. Kerby was not charged with possession, but with having a deadly weapon. R.C. 2911.01(A)(1). {¶ 4} The State argues we should overrule Kerby s assignment of error because of the Ohio Supreme Court s recent holding in State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225. In Lester, the Court specifically addressed whether aggravated robbery under R.C. 2911.01(A)(1) also imposes strict liability for the element of brandishing, displaying, using, or indicating possession of a deadly weapon. The Court reviewed its prior holding in State v. Wharf and stated, [t]he element of having a deadly weapon in one s possession or under one s control under 3 R.C. 2911.02(A)(1) an element identical to the first part of R.C. 2911.01(A)(1) does not, therefore, require that a defendant act with a specific intent. Lester at ¶ 20. The Court went on to conclude that the General Assembly, by not specifying a mens rea in R.C. 2911.01(A)(1), plainly indicated its purpose to impose strict liability as to the element of displaying, brandishing, indicating possession of, or using a deadly weapon. Id. At ¶ 32. The same applies to having the weapon. {¶ 5} We agree with appointed counsel s statement that there is no arguable merit to this appeal. The judgment of the trial court is Affirmed. ............. GRADY and FROELICH, JJ., concur. Copies mailed to: Amy Smith Cary Bishop William Kerby Hon. Douglas M. Rastatter
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