appellee's memorandum opposing appellant's motion for ... prosecuting attorney aurthouse,...

IN THE SUPREME COURT OF OHIO

OFFICE OF THEPREBLE COUNTY

PROSECUTING ATTORNEYAURTHOUSE, FIRST FLOOR

EATON, OHIO 45320PHONE (937) 456-8156

State of Ohio,

Plaintiff-Appellee,

V.

Curtis Schleiger,

Defendant- Appellant.

* Case No. 10-1708

* On Appeal from the Preble County* Court of Appeals, Twelfth* Appellate District**

* Court of Appeals* Case No.: CA 2009-09-026*

Appellee's Memorandum Opposing Appellant's Motion for Reconsideration

COUNSEL FOR APPELLANT:

Office of the Public DefenderBy: Stephen P. Hardwick (0062932)Assistant Public Defender250 East Broad St.Columbus, OH 43215(614) 466-5394(614)[email protected]

COUNSEL FOR APPELLEE:

Martin P. Votel (0067717)Preble County Prosecuting AttorneyKathryn M. Worthington (0073813)(Counsel of Record)Assistant Prosecuting Attorney, Preble County, Ohio101 East Main StreetCourthouse, First FloorEaton, Ohio 45320(937) 456-8156(937) 456-8199 - [email protected]

NEU 0920i1

CLERKOF COURTSUPREIV- UURT OF OHIO

umS°EB

CLERK OF C®UR7SUPREI>nE COURT OF OHIO

TABLE OF CONTENTS

PAGE

Table of Contents ...................................................................................i

1. Introduction ...... .. . ...... . . ....... ... ......... ........... ...... . ..... . ... . . .... ... .... ......1

II. Appellant's argument that the Seventh District Case and the Case SubJudice need to be considered together is incorrect ...................................2

III. Appellant raised the issue and made this Court aware of the SeventhDistrict Court of Appeals decision of Hubbs .........................................2

IV. Appellant's Motion for Reconsideration reiterates the same statementsmade in regards to the application of Anders in eeneral ...........................3

V. This is a matter of postrelease control ............................................. _...... 4

VI. Conclusion ... ...... .. . ......... ... ... ...... .. ....... ... .. ..... . .... . . .... ...... ... .... . ... ...6

Certificate of Service ...... ......... .. . ...... . . ....... ... .. ....... ...... ...... ... . . .... ... . ...... ..7


PROSECUTING ATTORNEY'OURTHOUSE, FIRST FLOOR

EATON, OHIO 45320PHONE (937) 456-8156

1


PROSECUTING ATTORNEYCOURTHOUSE, FIRST FLOOR

EATON, OHIO 45320PHONE(937)456-8156

I. Introduction

Appellant, Curtis Schleiger, was found guilty following a jury trial of one

count of felonious assault, a second-degree felony. He was sentenced to nine years in

prison. Appellant appealed this decision. The appointed appellate counsel filed an

Anders brief. Anders v. California (1967), 386 U.S. 738. In appellate counsel's brief

he provided two possible assignments of error with citations to cases and the record

for the review of the Twelfth District Court of Appeals. Upon receiving the brief,

appellant was given an additional 30 days to submit his own brief, which he did. In

his pro se brief, appellant listed seven further issues for the appellate court to consider

when it reviewed the record. The appellate court reviewed the record and found that

all issues provided by appellate counsel and appellant had no merit as well as finding

no other issues of merit, except for a sentencing issue.

Upon sentencing appellant, the trial court informed appellant that he would be

subject to a mandatory period of post-release control for five years, with the

sentencing entry stating that appellant would be subject to mandatory post-release

control for up to five years. However, R.C. 2967.28 requires a mandatory post-

release control period of three years for a second degree felony. The trial court also

did not explain to Appellant the consequences for violating post-release control.

Based upon State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the

appellate court reversed and remanded the case back to the trial court for it to correct

the improper post-release control pursuant to R.C. 2929.191. The appellate court also

granted appellate counsel's motion to be withdrawn and did not order merit briefs to

be filed.

1


PROSECUTING ATTORNEY'OURTHOUSE, FIRST FLOOR

EATON, OHIO 45320PHONE (937) 456-8156

II. Appellant's argument that the Seventh District Case and the Case

Sub Judice need to be considered together is incorrect.

Appellant argues in his motion for reconsideration that this Court should

accept his case and State v. Hubbs, Supreme Court Case No. 10-1971, Columbiana

App. Case No. 09C024, 2010-Ohio-4849 for review together as to the issue of

whether an appellate court may reverse a trial court's decision without appointing

counsel to file meritorious briefs, where the appellate court finds a non-frivolous

issue. What Appellant fails to recognize, is that these two cases are not factually

similar. Appellant's case deals specifically with an error found in his sentencing

regarding postrelease control, whereas the Hubbs case deals specifically with an error

the trial court found regarding a suppression hearing issue. The Hubbs case does not

deal with a postrelease control sentencing error, but a trial court's determination as to

the admissibility of evidence pursuant to a motion to suppress. The State in the

present case is not arguing that a non-sentencing error should.be able to be reversed

sua sponte to the trial court for correction. Instead, it maintains that where there is a

non-arguable procedural sentencing issue, as here an improper imposition of

postrelease control, a meritorious brief is not required by Anders or its progeny.

III. Appellant raised the issue and made this Court aware of the

Seventh District Court of Appeals decision ofHubbs.

Appellant has already made this Court aware of the Hubbs decision in its

Supplemental Authority filing. Footnote 2 specifically argues that the two cases are

similar. Moreover, appellant pulled direct quotes out of the appellant's brief in that

case to make the same arguments he made in his Memorandum in Support of

2



EATON,UHIO 45320PHONE(937)456-8756

Jurisdiction, and now in his Motion to Reconsider. Finally, appellant's Memorandum

in Support of Jurisdiction espoused on these same issues. Exhibit 1, pgs. 2 & 3.

These issues have already been brought before the Court for its consideration.

IV. Appellant's Motion for Reconsideration reiterates the same

statements made in regards to the application of Anders in

general.

Part IV, sections A through C of appellant's motion rehash the same

arguments that appellant made in his Memorandum in Support of Jurisdiction. He

has added nothing new. The State still maintains appellant does not present a

question of public or great general interest and that appellant's Constitutional rights

have not been violated and therefore this Court should not reconsider its decision to

dismiss this case.

The State will not reiterate each point it made in its Memorandum in

Response to Appellant's Memorandum in Support of Jurisdiction. Instead, a copy of

the document is attached as Exhibit 2 for the Court's review. The State would just

reiterate the theme of its argument that there were no arguable issues for which merit

briefs should have issued. In Anders, the United States Supreme Court held that if an

appellate court "finds any of the legal points arguable on the merits (and therefore not

frivolous) it must, prior to decision, afford the indigent the assistance of counsel to

argue the appeal." Anders, 386 U.S. 738, 744. The United States Supreme Court has

been consistent in holding that if a non-frivolous issue has been found that merit

briefs should be filed. However, they have also used synonymously with the term

3


PROSECUTING ATTORNEYCOURTHOUSE,FIRSTFLOOR

EATON, OHIO 45320PHONE (937) 456-8156

non-frivolous, the term "arguable" or the phrase "arguable on the merits." Id.; Smith

v. Robbins (2000), 528 U.S. 259, 280; Penson v. Ohio (1988), 488 U.S. 75, 84.

In the case at bar, there were no arguable issues as the only error was a non-

arguable issue of a partially void sentence. See State v. Fischer, ---Ohio St.3d---,

2010-Ohio-6238, ¶ 26. The trial court failed to properly inform appellant of his

mandatory postrelease control, as well as the consequences for violating postrelease

control. This Court has found this type of sentencing failure curable by a trial court

conducting a R.C. 2929.191 corrective hearing. Singleton, 2009-Ohio-6434. ¶¶ 12

and 35; State v. Fuller, 124 Ohio St.3d 543, 2010-Ohio-726. As such, the appellate

court properly did not order merit briefs to be filed for this issue to be briefed, as it

was not an arguable issue.

V. This is a matter of postrelease control.

Although Appellant argues at the end of his brief that this case would not

require the Court to "wade into the law of postrelease control," the State would argue

otherwise. Pursuant to the Court's most recent decision in Fischer, 2010-Ohio-6238,

¶ 30, this Court stated:

"Correcting the defect without remanding for resentencing can provide an

equitable, economical, and efficient remedy for a void sentence. Here we adopt that

remedy in one narrow area: in cases in which a trial judge does not impose

postrelease control in accordance with statutorily mandated terms. In such a case, the

sentence is void. Principles of res judicata, including the doctrine of the law of the

case, do not preclude appellate review. The sentence may be reviewed at any time, on

direct appeal or by collateral attack." Emphasis added.

4

In a case where the sentencing occurred after July 11, 2006, the postrelease

control sanction may be properly given to a defendant pursuant to R.C. 2929.191,

where a trial court failed to correctly give postrelease control sanctions initially. See

State v. Conway, 2011-Ohio-24, Clark App. No. 2010-CA-50, ¶ 26. As the decision

can be reviewed at any time, it is a non-arguable sentencing error which has caused

that portion of the sentence to become void and must be remedied. R.C. 2929.191(C)

is a ministerial function of the court to correct the sentence by the court. The void

sentence is not a substantive error which requires briefing. This is true in that it may

be corrected at any time, direct appeal or collateral attack which further exhibits that

this error is not an arguable Anders error for which meritorious briefs should issue.

There is a mechanism in the Ohio Revised Code to handle these issues, R.C.

2929.191.

OFFICE OF THEPRERLECOUNTY


EATON, OHIO 45320PHONE (937) 456-8156

Here, the trial court inadvertently provided appellant with the wrong post-

release control information. R.C. 2929.191 serves as a mere "corrective mechanism"

to ensure that an appellant knows of his post-release control. See generally, State v.

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434 at ¶32. The prison sentence itself

will not change, however now, the appellant will know the correct postrelease control

to which he will be subjected. This is further evidenced by this Court's own

statement that a sentence may be reviewed at any time. Fischer, 2010-Ohio- 6238.

Therefore, it is arguable, that the claimed "error" by appellant is in fact not an error,

but is a void portion of the sentence that may be easily corrected by holding a R.C.

2929.191 hearing, allowing a conclusion that where there is no error, there is no

argument for the necessity of an Anders merit brief. See generally Id. at ¶ 26.

5

VI. CONCLUSION

Appellant's claimed Motion for Reconsideration should be denied. The

propositions of law presented by Appellant fail to present a substantial constitutional

question or a question of public or great general interest. Appellant argues other

situations, and not his particular situation. His situation is that the trial court

improperly provided his postrelease control. Contrary to appellant's argument, the

Hubbs case and the case sub judice should not be argued together as they are based

upon different factual scenarios, i.e. they are not both sentencing issues. Pursuant to

Singleton and R.C. 2929.191, the case should be remanded back to the trial court to

correct the postrelease control sanction, as it currently is void. There were no

arguable issues found by the appellate court, so pursuant to Anders, the appellate

coutt properly did not order briefs on the merits. Accordingly, this Court should

affirm its decision to decline jurisdiction of this case and dismiss appellant's appeal.

Respectfully submitted,

MARTIN P. VOTELPreble County Prosexuto

Kathj'y°n M. Worthing Counsel of Record)COUNSEL FOR APPEL E,STATE OF OHIO



EATON, OHIO 45320PHONE (937) 456-8156

6



EATON, OHIO 45320PHONE (937) 456-8156

CERTIFICATE;OF SERVICE

A true and exact copy of the foregoing Brief for Appellee was delivered to thefollowing Defendant/Appellant's counsel of record, Stephen P. Hardwick, Off iceof the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH,43215 by regular U.S. Mail Service, postage pre-paid, this 8th day of February,2011.

7

lltC-02-2b1U 10;Gb

IN THE SUPREME COUF2T OF OHIO

State of Ohio,

Plaintiff-Appellee,

V.

Curtis Schleiger,

Defendant-Appellant.

Case No. 2010-1708

On Appeal from the PrebleCounty Court of Appeals,Twelfth Appellate District,Case No. CA 2009-09-026

Supplemental Authority of Appellant Curtis Schleiger

F'. bL/bb

Off'ice of the Ohio Public Defender

By: Stephen P. Hardwick (0062932)

Martin P. Votel (0067717)Preble County Prosecuting Attorney

Assistant Public Defender Kathryn Worthington (0073813)Assistant Preble County Prosecutor

250 East Broad Street, Suite 1400Columbus, Ohio 43215

Counsel of Record

(614) 466-5394 Preble County Prosecutor's Office

(614) 752-5167 - Fax 101 E. Main Street

[email protected] Eaton, Ohio 45320.(937) 456-8 193

Counsel for Appellant, Curtis Schleiger (937) 456-8 199 - Fax

Counsel for Appellee, State. of Ohio

CLERK OF COURTSUPREME COURT OF OHIO

LCI.-3JG-CKJAYJ Y[l GV

Supplemental Authority of Appellant Curtis Schleiger

Pursuant to S.Ct. Prac. R, 8.7, Appellant Curtis Schleiger submits the

following additional authorities in support of his proposition of law.; The

authorities are from a recent decision in the Seventh District Court of Appeals,

as well from the jurisdictional memorandum that the State of Ohio filed in this

Court to appeal the Seventh District's decision;

Regarding the question of whether the rule of law adopted by the

Twelfth District in.this case could lead an appellate court to

vacate a guilty plea without providing counsel to advise the client

as to the wisdom of vacating the plea:

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, at 5("Appellatecounsel filed an Anders brief and Motion to Withdraw....The Seventh District Appellate Court then proceeded toexamine the proceedings to determine whether the appealwas wholly frivolous. [The Seventh District] issued anopinion that reversed the trial court's ruling on Hubbs'motion to suppress, vacated the plea and sentence andremanded the matter for further proceedings."), referring to

State v. Hubbs, 7th Dist. No. 09 CO 24, 2010-Ohio-4849, ¶6

and 30.

Regarding the question of whether Mr. Schleiger's proposition of

law correctly states the law:

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, State'sProposition of Law No. I ("An appellate court whichdetermines that there are arguable issues for appeal after an

Anders mandated review cannot sua sponte proceed directly

to judgment on that appeal.")2

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, State's

i"A court of appeals that finds a non-frivolous issue when reviewing a brieffiled under Anders v. Califomia (1967), 386 US 738, cannot reverse or affirmthe trial court's judgment without appointing counsel and receiving briefs."2 Accord, Appellant Schleiger's proposition of law in this case. Note 1, above.

lltCr-k.^C`Gl^1VJ lb°L^br.YJY'/VJO

proposition of Law No. II ("The parties to an appeal areentitled to the benefits of adversary judicial process,including the opportunity to identify, present and argueissues, following an appellate court's determination that an

appeal is not wholly frivolous.")

Regarding the question of whether the rule in the Twemh District's

opinion in Mr. Schleiger's case violates his right to counsel, harms

the interest of the State, and is inconsistent with the adversarial

,process:

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum in

Support of Jurisdiction of the State of Ohio, at 1('TheSeventh District Court of Appeals erroneously proceeded sttasponte to full decision on the merits of this appeal afterfinding a nonfrivolous issue(s) following full examination ofthe record pursuant to an Anders or no merit appellate brief,

contrary to the unambiguous mandates of Anders v.

Californ.ia (1967), 386 U.S. 738 and Penson v. Ohio ( 1988),488 U.S. 75. Such fanl erroneous grocedure creates adangerous precedent in the Seventh Appellate Districtwhereb an a ellate court could decide the merits of anonfrivolous auAeal without affordin¢ the parties_ the benefitof the adversarial iudicial process that defines our sVstemlof

u stice, including the right of representation and opportunityto identify and present through brief and/or argument anyalleged error(s) by the trial court. By circumventing definedappellate procedure and proceeding sua sponte to decisionon the merits in cases determined to be nonfrivolous, theappellate court de rives an indigent appellant the right tore resentation and an appellee the opportunitv to be heardundermines the integrity of the appellate process andperverts the role of the Court. The right to be heard isfundamental and essential to our adversarial system ofjustice. The integrity of the appellate process lies in theadversarial presentation of issues and arguments. And, therole of the appellate court is to review, not advocate.")(Emphasis supplied)

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State bf Ohio;'at 2. ("In

accordance with Anders, the appellate court then reviewed

the case to determine whether or not the appeal was whollyfrivolous. Unfortunately, the appellate court failed to stop atthe determinations required by Anders.... Instead, the

appellate court proceeded, improperly, to determine the case on

2

Lc^-e^c-cnln tn•ct

the merits. Under Anders and its progenv if an apnellate courtfinds an areuable issue(sl for appeal, then the case must proceedas any other anpeal with adversa.ry presentation and araument ofthe issues. Proceeding otherwise renders our system of justicemeaningless and denrives all narties the opportunitv to beheard.") (Emphasis supplied)

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, at 8. ("Thisprocedural error by the appellate court not only runs afoulof the Unitcd States Supreme Court holdings in Anders and

Penson, it circumvents the appellate process and deprivesthe parties of significant constitutional protections andbenefits of the adversarial system of justice.")

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, at 9 ("Here, notonly was the defendant Hubbs deprived of his right tocounsel for purposes of the appeal, the State had absolutelyrio. opportunity to be heard on the arguable issues identifiedby the appellate court. Absent those protections, theintegrity of the appellate process is undermined. All partiessuffer the loss of the benefit of the adversarial process. Thisadversarial system is 'premised on the well-tested principlethat truth-as well as fairness-is 'best discovered by powerfulstatements on both sides of the question." Penson, supra, at

352, citing to Kaufrnann, Does the Jude Have a Right toQualified Counsel?, 61 A.B.A.J. 569 (1975). The need foradvocacy ensures that 'rights are not forgone and thatsubstantial legal and factual arguments are notinadvertently passed over.' ld. at 352.")

State v. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, at 9("Fairnessdictates that, in a nonfrivolous appeal, appellate procedureas set forth in the Rules of Appellate Procedure be followedaffording the parties the opportunity to identify, present andargue issues. Under said rules, any determination orjudgment on appeal concerning errors at the trial level mustbe in response to an assignment of error.in Appellant's brief.Appellate Rule 12(A) (b). Those same rules of appellateprocedure afford the appellee an opportunity to respond.Appellate Rule 16(B).")

State v, Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, at 9-10("However, when an appellate court, as the court here, by-

f . e,` eF]

3

passes defined appellate procedure and proceeds sua sponteto decision on the merits in cases determiried to benonfrivolous, rights are forgone and substantial legal andfactual questions may be overlooked. Such a result iscontrary to the integrity of the appellate process and ouradversarial system of justice.")

Regarding the question of whether this case present's critical

issues of constitutional importance and great pubiic interest:

State u. Hubbs, Ohio Sup. Ct. No. 10-1971, Memorandum inSupport of Jurisdiction of the State of Ohio, at 3. ("Thiscause presents critical issues of constitutional importanceand of great general interest for future criminal proceedings.These issues include; (1) whether an appellate court whichdetermines that there are arguable issues for appeal after an

Anders mandated review can sua sponte proceed directly tojudgment on that appeal; and (2) whether the parties to anappeal are entitled to the benefits of adversary judicialprocess, including the opportitnity to identify, present andargue issues, following an appellate court's determinationthat an appeal is not wholly frivolous.")


Office of kfe O N'o Public Defender

y: S e hen P. Hardwick ( 32)Assistant Public Defender

250 E. Broad Street, Suite 1400Columbus, Ohio 43215(614) 466-5394; (614) 752-5167 (fax)Counsel for Appellant, Curtis Schleiger

Certificate of Service

I hereby certify that a true copy of the foregoing was forwarded by regularU.S. Mail, postage pre-paid to the office of Kathryn Worthington, AssistantPreble County Prosecutor, Preble County Prosecutor's Office, 101 E. MainStreet, Eaton, OH 45320, this 2nd day of Dleeem^qr, 2010.

71332322

4

TOTRL P.06

IN Tl-IE SUPREME COURT OF OHIO

State of Ohio,

Plaintiff-Appellee,

V.

Curtis Schleiger,

Defendant- Appellant.

*Case No. 10-1708

^ On Appeal from the Preble County* Court of Appeals, Twelfth* Appellate District^^+

* Court of Appeals^^

Case No.: CA 2009-09-026

Appellee's Memorandum in Response to Appellant's Memorandum inSupport of Jurisdiction

OFFICE GF THEPREBLE COUNTY

PRQSECUTING ATTORNEYCOURTHOUSE,FIRSTFLOUR

EATON,OHIO4532GPHONE (937) 456-8156

COUNSEL FOR APPELLANT:

Office of the Public DefenderBy: Stephen P. Hardwick (0062932)Assistant Public Defender250 East Broad St.Columbus, OH 43215(614) 466-5394(6i4) [email protected]

COUNSEL FOR APPELLEE:

Martin P. Votel (0067717)Preble County Prosecuting AttorneyKathryn M. Worthington (0073813)(Counsel of Record)Assistant Proseeuting Attorney, Preble County, Ohio101 East Main StreetCourthouse, First FloorEaton, Ohio 45320(937) 456-8156(937) 456-8199 - [email protected]

N ^^Y),9 Jd ^[^4)^i

Cf.EPK OF MiR^°SUPREpili^.L;^;t&;`j; O;ORB

iVo?l (J i

CLERK OF COURTSUPREME CDURT OF OHlQ

TABLE OF CONTENTS

PAGE

Table of Contents ...........................................................:.......................i

Explanation of Why this Court Should Decline Jurisdiction ............................1

Argument Contra to Propositions of Law.............:...................................... 2

Response to Proposition of Law No. 1 ........................................................2

This case properly followed rulings of the United States Supreme Court..........2

A. The United States Supreme Court has not prohibited Ohio appellatecourts from summarily reversing cases in which an appellate courtfinds no arguable issues after counsel files an Anders brief ..................2

B. The districts are not in conflict on this issue, but instead choosetwo different valid ways in which to handle Anders briefs whereinthere is no arguable issue in regard to sentencing errors......................... 4

C. As there is no systemic issue, no problem exists for this Court to fix.........5


PROSECUTING A170RNEYCOURTHOUSE, FIRST FLOOR

FATON, OHIO 45320PHONE (937) 456-8156

Response to Proposition of Law No. 2 .........................................................6

Justice Thomas was correct in Smith: A State's procedure provides (adequateand effective appellate review) so long as it reasonably insures that an

indigent's appeal will be resolved in a way that is related to the merit of thatappeal...... . ... .. ... . .... .. .. . . . .. .. .. . .. . . .. .... . . .. ... .. .. . . ... .. . . . . . . . . .. . .. . .. ... . . . . . ... .. . . ..6

A. Appellant was properly represented by counsel, even though hiscounsel filed an Anders brief for which the appellate courtagreed, no arguable issues could be found in the case ............................6

B. Where the appellate court finds there to be no argnable issues, itproperly does not appoint appellate counsel for appellant to file amerit brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ...7

Conclusion .. . ...... . . . ....... . . . . ... . ... ....... .. .. ....... . . . .... . . .... . . . .. ... . ...... . .. . ......... 9

Certificate of Service ...........................................................................10

i

Explanation of Why this Court Should Decline Jurisdiction

Appellant, Curtis Schleiger, has not presented before thi"s Court substantial

constitutional questions. Moreover, this case is not one of public or great general

6FFICE OF THEPREBLECCUNTY

PRCSECUTING ATTORNEYCOURTHOUSE, FIRST FLOOR

EATON, OHIO 45826PHONE(937)4568156

interest.

Appellant was found guilty following a jury trial of one count of felonious

assault, a second-degree felony. He was sentenced to nine years in prison. Appellant

appealed this decision to the Twelfth District Court of Appeals. Appellate counsel

appointed to aid appellant in his appeal filed an Anders brief. Anders v. California

(1967), 386 U.S. 738. In appellate counsel's brief he provided two possible

assignments of error with citations to cases and the record for the review of the

appellate court. The appellate court, upon receiving the brief, gave appellant 30 days

to submit his own brief, which he did. In his pro se brief, appellant listed seven

farther issues for the appellate court to consider when it reviewed the record. The

appellate court did review the record and found that all issues provided by appellate

counsel and appellant had no merit as well as fmding no other issues of merit, except

for a sentencing issue.

Upon sentencing appellant, the trial court informed appellant that he would be

subject to a mandatory period of postrelease control for five years, with the

sentencing entry stating that appellant would be subject to mandatory postrelease

control for up to five years. However, R.C. 2967.28 requires a mandatory postrelease

control period of three years for a second degree felony. The trial court also did not

explain to Appellant the consequences for violating postrelease control.

I


PROSECUTING ATTORNEYCOURTHOUSE,FiRSTFL00R

EATON, OHIO 45320PHONE (937) 456-8150

Based upon this Court's decision in State v. Singleton, 124 Ohio St.3d 173,

2009-Ohio-6434, the appellate court reversed and remanded the case back to the trial

court for it to correct the improper postrelease control pursuant to R.C. 2929.191.

The appellate court granted appellate counsel's motion to be withdrawn and did not

order merit briefs to be filed.

Appellant contends that pursuant to Anders and Penson v. Ohio (1988), 488

U.S. 75, the appellate court should not have allowed counsel to withdraw and should

have ordered briefs on the merits to be written. It is the State's contention that a brief

on the merits need not be ordered as no arguable meritorious issues were found by

the appellate court. See Penson, 488 U.S. 75 at 83 and 84. The issue regarding the

sentencing was one of plain error which permitted the oourt, pursuant to R.C.

2929.191, to rectify said sentencing issue. State v. Singleton, 124 Ohio St.3d 173,

2009-Ohio-6434 at 1112 and 35. As such, there were no arguable and thus non-

frivolous issues to brief.

As appellant's Constitutional rights have not been violated this appeal should

be dismissed. Moreover, as this case presents no question of public or great general

interest, it should be disniissed. The decision of the appellate court as to these issues

was based upon either case law promulgated by this court or well settled case law.

Accordingly, appellant's request for jurisdiction should be denied.

Response to Proposition of Law No. 1

This case properly followed rulings of the United States Supreme Court.

A. The United States Supreme Court has not prohibited Ohio appellatecourts from summarily reversing cases in which an appellate court finds noarguable issues after counsel files an Anders brief.

2

OFFICE OF THEPREBLE GOUNTY

PROSEGUTING ATTORNEYCOURTHOUSE, FIRST FLOOR

EATON, OHIO 45320PHONE (937) 456-8156

Appellant maintains correctly that counsel should be appointed to an appellant

where a court determines that the record supports "several arguable claims."

Appellant's Jurisdictional Brief at 1, citing to Penson, 488 U.S. 75. He also correctly

recites the law that was promulgated in Smith v. Robbins (2000), 528 U.S. 259, that

an appellant has a right to be represented by counsel and receive a merits brief for a

non frivolous appeal. Id. citing to Robbins, 528 U.S. 259, 280. However, the Twelfth

District Court of Appeals did not violate any of these holdings, as there were no

arguable issues present in appellant's case.

In Anders, the United States Supreme Court held that if an appellate court

"finds any of the legal points arguable on the merits (and therefore not frivolous) it

must, prior to decision, afford the indigent the assistance of counsel to argue the

appeal." Anders, 386 U.S. 738, 744. The United States Supreme Court has been

consistent in holding that if a non-frivolous issue has been found that merit briefs

should be filed. However, they have also used synonymously with the term non-

frivolous, the term "arguable" or the phrase "arguable on the merits." Id.; Robbins,

528 U.S. 259 at 280; Penson, 488 U.S. 75 at 84.

In the case at bar, there were no arguable issues as the only error was a non-

arguable issue of plain error. The trial court failed to properly inform appellant of his

mandatory postrelease control, as well as the consequences for violating postrelease

control. This Court has found this type of sentencing failure curable by a trial court

conducting a R.C. 2929.191 corrective hearing. Singleton, 2009-Ohio-6434. ¶¶ 12

and 35; State y. Fuller, 124 Ohio St.3d 543, 2010-Ohio-726. As such, the appellate

3

court properly did not order merit briefs to be filed for this issue to be briefed, as it


PROSECUTING ATTORNEYCOURTHOUSE, FIRST FLGUR

EATON, OHIO 45320PHONE ( 937) 456-8156

was not an arguable issue.

B. The districts are not in conflict on this issue, but instead choose twodifferent valid ways in which to handle Anders briefs wberein there is noarguable issue in regard to sentencing errors.

Appellant also maintains that the districts are in conflict on how they handle

this issue, noting that the Second, Fourth, Seventh and Twelfth will remand on a non-

frivolous issue, but that the Ninth and Sixth do not. This statement does not go far

enough. A reading of the cases finds that the districts remand when the issue is not

arguable, i.e. a sentencing error. Contrary to appellant's assertion, even the Sixth

District remands when the issue is a non-arguable sentencing error. See State .v.

Reau, Ottawa App. No. OT-06-002, 2006-Ohio-5466; State v. Byrd, Lucas App. No.

L-06-1025, 2006-Ohio-4292; State v. Childers, Lucas App. No. L-05-117, 2006-

Ohio-3794; see also State v. Phillips, Montgomery App. No. 2744, 2009-Ohio-5303

(remanded without merit briefs for proper imposition of court costs). Even the Fifth

District remands but does not order merit briefs for sentencing errors. See State v.

Thornsburg, Licking App. No. 05-CA-121, 2006-Ohio-4446. What is also common

with these districts, is that they do in fact order merit briefs where the error is not a

plain error and is actually arguable, i.e. non frivolous. State v. Chears, Lucas'App.

No. L-09-1054, 2010-Ohio-4723; State v. Kerby, Clark App. No. 03-CA-55, 2007-

Ohio-1 S7.

In Robbins, Justice Thomas wrote for the majority stating that:

"***the Anders procedure is merely one method of satisfying therequirements of the Constitution for indigent criminal appeals. States may-and, we are confident, will- craft procedures that, in terms of policy, are

4


PROSECUTING AIYORNEYCOURTHOUSE, FIRST FLOOR

EATON, OHIO 45320PHONE (937) 456-8156

superior to, or at least as good as, that in Anders. The Constitution erects nobarrier to their doing so."

Robbins, 528 U.S. 259, 276.

That the districts are handling plain error differently is permitted, so long as

ihe indigent's rights to appellate counsel on a first appeal are protected. In both cases

they are so protected. The State does not have to follow Anders specifically, so long

as the requirements of the Constitution are being satisfied. Robbins, 528 U.S. 259,

265 and 274. In this case, they are satisfied as the indigents are receiving counsel as

well as appellate court review of their cases. Any arguable issues are being sent back

for merit briefs to be issued. However, if there are no arguable issues, some districts

are choosing not to require merit briefs, as they are unnecessary and not requ.i.red

pursuant to Anders.

C. As there is no systemic issue, no problem exists for this Court to fix.

Appellant maintains that the appellate court's decision not to order merit briefs

where a non-arguable issue was found, is a mistake. As he believes it is a mistake

that is occurring in courts across the State of Ohio, he believes that this Court shoulld

correct this "systemic error."

The State argues that this is not an error or a mistake but decision based upon

Anders. As there were no arguable issues, in this case a sentencing error, merit briefs

did not need to be ordered. Appellant received adequate and effective appellate

review. As Justice Thomas elucidated in Robbins, "[a] State's procedure provides

such (adequate and effective appellate) review so long as it reasonably ensures that an

indigent's appeal will be resolved in a way that is related to the merit of that appeal."

Robbins, 528 U.S. 259, 276 and 277.

5

In the case sub judice, no meritorious argument was found in appellant's

appeal. The court considered argumcnts that were perpetuated by his counsel as well

as numerous that were perpetuated by appellant. After reviewing these arguments as

well as reviewing the record as a whole, it found no arguable issues. Therefore, it

properly permitted appellate counsel to withdraw and properly did not order a brief

on the merits.

Response to Proposition of Law No. 2

OFFICE OF THEPRERLE COUN7Y


EATON. OHIO 45320PHONE (937) 456-8156

Justice Thomas was correct in. Smith: A State's procedure provides(adequate and effective appellate review) so long as it reasonably insures that anindigent's appeal will be resolved in a way that is related to the merit of thatappeal.

A. Appellant was properly represented by counsel, even though hiscounsel filed an Anders brief for which the appellate court agreed, no arguableissues could be found in the case.

Appellant believes that because an issue was found, that he should have

appellate counsel appointed to file a merit brief on his behalf. However, as stated

above, it is not whether a legal issue is found, but whether an arguable issue is found.

Anders, 386 U.S. 738, 744. In this case, the issue was not arguable. Therefore, h_e

properly was not appointed appellate counsel for the purpose of a merit brief. This

does not prejudice appellant either. As Justice Thomas wrote in the Robbins opinion,

"where the defendant has received appellate counsel who has complied with a valid

state procedure for determining whether the defendant's appeal is frivolous, and the

State has not at any time left the defendant without counsel on appeal, there is no

reason to presume that the defendant has been prejudiced." Robbins, 528 U.S. 259,

286.

6

Moreover, he went on to elucidate that "[a] State's procedure provides such

(adequate and effective appellate) review so long as it reasonably ensures that an

indigent's appeal will be resolved in a way that is related to the merit of that appeal."

Id. at 277. Appellant's case was resolved on the merit of the appeal. There was no

merit to the appeal, as there were no arguable issues.

Appellant cites to State v. Williams, ----N.E. 2d ----, Montgomery App. Case

No. 23546, 2010-Ohio-3334, for the proposition that a vacation of a plea may not be

in the best interest of an appellant and tlierefore, it would be in an appellant's interest

to have counsel help him through the process. However, that is not the situation in

the present case. No plea is being vacated. Appellant did not plea in this case, but

was found guilty following a jury trial. The case was remanded merely to correct a

sentencing error regarding appellant's mandatory term of postrelease control pursuant

to Singleton, a plain error, a non-arguable error.

UFFICEOFTHEPREBLE COUNTY

PROSECUTING ATTORNEYCOURTHOllSE, FIRST FLOOR

EATON, OHIO 45320PHONE (937) 456-8156

B. Where the appellate court fmds there to be no arguable issues, itproperly does not appoint appellate counsel for appellant to file a merit brief.

The United States Supreme Court has set out a general framework tn he

complied with in the case where an indigent appellant's counsel sees no merit in the

appeal. In this situation, appellate counsel must make a conscientious examination of

the case, and advise the court that he has done so and request to withdraw. Robbins,

528 U.S. 259, 271. The request must "be accompanied by a brief referring to

anything in the record that might arguably support'the appeal." Id. The brief is sent

to the appellant and time given to him to raise any points he chooses; and, then after

fully examining the record, the court decides whether the case is frivolous, i.e. there

are no arguable issue. Id. If it finds it to be frivolous, it may dismiss the appeal or

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UFFICE OF THEPREBLE COUNTY


EATON, OHIO 45320PHONE (937) 456-8156

proceed to a decision on the merits. Id. If it finds "any of the points arguable on their

merits (and therefore not frivolous) it must, prior to decision, afford the indigent the

assistance of counsel to argue the appeal. Id.

In the instant case, the Twelfth District Court followed this procedure. It

reviewed the Anders brief, it granted time for appellant to raise any points, and

reviewed those issues. It also examined the entire record and found no arguable

issue. It did find one non-arguable issue, a sentencing error, for which it remanded

the case back to the trial court to correct. As there were no arguable issues, the

Twelfth District Court followed Anders and its progeny properly. There was no error,

let alone harmless error, committed by the Twelfth District Court when it remanded

the case back to the trial court to correct the sentencing order without ordering a merit

brief wherein there were no arguable issues.

C. Appointing counsel does not further protect the State.

Appellant's case was remanded to fix a plain error, i.e. he was not properly

told of his mandatory postrelease control. The sentence itself was considered void for

this error prior to Singleton. Singleton, 2009-Ohio-6434 at ¶ 14. After Singleton, the

court allowed the use of R.C. 2929.191 as an instrument to correct these sentencing

errors. Appellate counsel is not required or necessary for this correcfion procedure.

As this court stated in Singleton, "an offender can have no legitimate expectation of

finality in a sentence rendered defective by the trial court's failure to properly impose

a mandatory term of postrelease control, because an offender is charged with

knowledge of the fact that his sentence is legally incomplete and that R.C. 2929.191

provides a statutory mechanism to correct it." Singleton, 2009-Ohio-6434 at ¶ 33,

8

citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, citing.7ones v. Thomas

(1989), 491 U.S. 376, 395.

It is true that an appellant could possibly appeal the sentencing as it may not

be barred by res judicata, however, he could only appeal that portion which was

changed. In this case, it would be the mandatory postrelease control period, as that is

the only item that the trial court is ordered to consider. As the tirne period is

mandatory and set in statute, such appeal would more than likely be dismissed.

Finally, Appellant's contention that the State could be disenfranchised by its

no right to file a brief is of no consequence. The State is not disenfranchised as it can

always appeal any decision of the appellate court to this Court. Moreover, in this

particular case, the, State would not argue that appellant was properly given his

mandatory postrelease control, as he had not been. This sentencing error should be

corrected.


PROSECUTING ATTURNEYCOURTHGUSE, FIRST FLOOR

EATON, OHIO 45320PHONE(937)456-8156

CONCLUSION

Appellant's claimed appeal of right should be denied. The propositions of law

presented by Appellant fail to present a substantial constitutional question or a

question of public or great general interest. Appellant argues other situations, and

not his particular situation. His situation is that the trial court improperly gave him

his postrelease control. Pursuant to Singleton, the case should be remanded back to

the trial court to correct this error. There were no arguable issues found by the

appellate court, so pursuant to Anders, the appellate court properly did not order

briefs on the merits. The trial court plainly erred. Accordingly, this Court should

decline jurisdiction of this oase and dismiss appellant's appeal.

9


MARTIN P. VOTELPreble County Prosec}}tor

?Gi ?C'LKathrypflGl. Worthinkon (JouAelofRecord)COUNSEL FOR APPSTATE OF OHIO

CERTIFICATE OF SERVICE

A true and exact copy of the foregoing Brief for Appellee was delivered to thefollowing Defendant/Appellant's counsel of record, Stephen P. Hardwick, Off iceof the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH,43215 by regular U.S. Mail Service, postage pre-paid, this 29'h day of October,2010.

KathrynAttomey for Appellee; S4atelof Ohio

OFFICE OF THEPAEBLECOUNTY


EATON, OHIO 45320PHONE (937) 456-8156

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