[Cite as State v. Whittington, 2017-Ohio-613.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-16-1073 

 

 Appellee Trial Court No. CR0201502843 

v. 

Gordon Anthony Whittington DECISION AND JUDGMENT

Appellant Decided: February 17, 2017 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Frank H. Spryszak, Assistant Prosecuting Attorney, for appellee. 

 Christopher S. Clark, for appellant. 

* * * * * 

 SINGER, J. 

{¶ 1} Appellant, Gordon Whittington, appeals the January 8, 2016 judgment of the 

Lucas County Court of Common Pleas imposing a 54-month prison term for robbery in 

violation of R.C. 2911.02(A)(3) and (B), a felony of the third degree. For the reasons 

that follow, we affirm. 
2.

Background Facts 

{¶ 2} On November 2, 2015, appellant was indicted on one count of aggravated 

robbery with a firearm specification, and one count of robbery. 

{¶ 3} On December 3, 2015, an amended bill of information was filed charging 

appellant with robbery, in violation of R.C. 2911.02(A)(3) and (B), a felony of the third 

degree. 

{¶ 4} On December 17, 2015, appellant pled guilty, pursuant to N.C. v. Alford, 400 

U.S. 25, 91 S.Ct. 160 (1970), to the robbery. The trial court accepted the plea and set 

hearing to impose sentence, which was scheduled for January 7, 2016. 

{¶ 5} At the January 7, 2016 sentencing hearing, the trial court discussed 

appellant’s extensive criminal record, including 8 felonies and 14 misdemeanors. 

Appellant was 59 years old and associated with three different social security numbers 

and identities. The trial court further highlighted the factual basis for accepting 

appellant’s plea. 

{¶ 6} The court noted that on October 24, 2015, appellant robbed a gas station and 

fled the scene. There were surveillance videos and photos, which captured appellant by 

way of high-definition photography. The identity of appellant was very apparent to the 

court from the photos. 

{¶ 7} Further, appellant was stated to have entered the gas station and threatened 

employees with what appeared to be a weapon. Appellant allegedly said, “I’ll shoot 

you,” while robbing the store of $220. After fleeing, the court stated appellant was 
3.

allegedly found shirtless, as described by witnesses, and in possession of $213. Another 

$7 was found in close enough proximity that the court concluded it was the remaining 

stolen funds. 

{¶ 8} Appellant was sentenced to 54-months incarceration and, upon release, three 

years mandatory postrelease control. The judgment was journalized January 8, 2016. It 

is from this judgment appellant now appeals. 

Anders Brief 

{¶ 9} On September 28, 2016, appellant’s counsel filed a request to withdraw 

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 

Counsel asserted, after thoroughly reviewing the transcript of proceedings and the 

applicable case law, no meritorious assignments of error could be presented. Counsel 

did, however, submit two potential assignments of error: 

 I.) THE TRIAL COURT ERRED IN ACCEPTING A PLEA OF 

GUILTY FROM APPELLANT AS THE PLEA WAS MADE WITH A 

LACK OF UNDERSTANDING BY APPELLANT AS TO THE EFFECT 

THAT THE PLEA WOULD HAVE IN THE COURT’S 

DETERMINATION OF A SENTENCE. 

 II.) THE TRIAL COURT ERRED IN SENTENCING APPELLANT 

TO A PRISON TERM OF FIFTY-FOUR (54) MONTHS. 
4.

{¶ 10} The state also filed a brief, concurring with the conclusion that there was 

no arguable basis for a valid assignment of error and urging this court to permit counsel 

to withdraw. 

{¶ 11} The procedure to be followed by appointed counsel who desires to 

withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as 

State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). In Anders, the 

U.S. Supreme Court found if counsel, after a conscientious examination of the case, 

determines it to be wholly frivolous, counsel should so advise the court and request 

permission to withdraw. Anders at 744. This request must be accompanied by a brief 

identifying anything in the record which could arguably support the appeal. Id. In 

addition, counsel must furnish the client with a copy of the brief and request to withdraw 

and allow the client sufficient time to raise any matters the client so chooses. Id. Once 

the requirements are fulfilled, the appellate court must conduct a full examination of the 

proceedings and decide if the appeal is indeed frivolous. Id. If the appellate court 

determines the argument is frivolous, it may grant counsel’s request to withdraw and 

dismiss the appeal or it may proceed to a decision on the merits. Id. 

{¶ 12} Here, appellant’s counsel has satisfied the requirements set forth in Anders. 

Appellant has not filed a pro se brief or otherwise responded to counsel’s request to 

withdraw. Consequently, we shall proceed with an examination of the potential 

assignments of error and the record, to determine if this appeal lacks merit and is 

frivolous. 
5.

Appellant’s Charge 

{¶ 13} R.C. 2911.02(A)(3) states that “[n]o person, in attempting or committing a 

theft offense or in fleeing immediately after the attempt or offense, shall * * * [u]se or 

threaten the immediate use of force against another.” 

Potential Assignment of Error No. I 

{¶ 14} Appellant’s counsel first submits review of the plea entered into by 

appellant. The court must determine if the plea was entered with understanding of its 

consequences. 

{¶ 15} A plea in a criminal case must be made knowingly, intelligently, and 

voluntarily. See State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, 

¶ 7. 

{¶ 16} Crim.R. 11(C) “requires an oral dialogue between the trial court and the 

defendant which enables the court to determine fully the defendant’s understanding of the 

consequences of his plea of guilty[.]” State v. Caudill, 48 Ohio St.2d 342, 358 N.E.2d 

601 (1976), paragraph two of syllabus. 

{¶ 17} Here, the record reveals the court complied with Crim.R. 11(C) by 

engaging in colloquy to insure appellant was fully aware of and understood not only the 

consequences of his plea but also his constitutional rights. 

{¶ 18} Specifically, at the plea and sentencing hearings, appellant was questioned 

regarding his understanding of the nature of the charge, informed with regard to the 
6.

maximum penalty of 60 months, and was informed on how he would not be amenable to 

community control. See Crim.R. 11(C)(2)(a). 

{¶ 19} Further, the court informed appellant and confirmed his understanding of 

the effects of the plea with regard to waiver of his right to jury trial, to confront 

witnesses, to have compulsory process, to no self-incrimination, and to require proof of 

the crime beyond a reasonable doubt. See Crim.R. 11(C)(2)(b) and (c). The trial court 

questioned appellant numerous times to ensure he maintained his plea. This confirmed 

appellant was competent and free of coercion. The record thus supports an extensive 

colloquy occurred and that the plea was entered in knowingly, voluntarily, and 

intelligently. 

{¶ 20} Accordingly, we find no merit in the first potential assignment of error. 

Potential Assignment of Error No. II 

{¶ 21} Appellant’s counsel submits review of the imposition of a 54-month prison 

term for robbery, a felony of the third degree. The court must determine if the sentence is 

within the permissible range and amply supported by factual basis on record. 

{¶ 22} “An appellate court may vacate or modify any sentence that is not clearly 

and convincingly contrary to law only if the appellate court finds by clear and convincing 

evidence that the record does not support the sentence.” State v. Marcum, 146 Ohio St.3d 

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. See also R.C. 2953.08(G)(2). 
7.

{¶ 23} For a felony of the third degree that is a violation R.C. 2911.02, when the 

offender has previously pled guilty two or more times to violations of R.C. 2911.02, the 

prison term ranges from 12 to 60 months incarceration. See R.C. 2929.14(A)(3)(a). 

{¶ 24} Here, appellant’s term is not contrary to law because facts on record 

support a basis for the sentence and, because, appellant pled guilty to the robbery after 

pleading guilty to two past robberies. The permissible range of incarceration for the 

robbery is 12 to 60 months. Therefore, the trial court’s 54-month sentence was within the 

permissible range under R.C. 2929.14(A)(3)(a), and is not otherwise contrary to law. The 

second proposed assignment of error is without merit. 

{¶ 25} Last is our examination of the record to determine whether this appeal is 

frivolous. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of the record 

does not reveal any errors which would justify reversal. We find this appeal to be wholly 

frivolous, and counsel’s request to withdraw is found well-taken and granted. 

Conclusion 

{¶ 26} The judgment of the Lucas County Court of Common Pleas is hereby 

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The 

clerk is ordered to serve all parties with notice of this decision. 

Judgment affirmed. 
8.

 State v. Whittington 

 C.A. No. L-16-1073 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.