[Cite as State v. McDaniel , 2011-Ohio-2186.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2010 CA 13

v. : T.C. NO. 09CR299 CASEY McDANIEL : Defendant-Appellant :

:

. . . . . . . . . . DECISION AND ENTRY Rendered on the 6 th day of May , 2011.

. . . . . . . . . . NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, 200 N. Main Street, Courthouse, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee CHRISTOPHER L. WESNER, Atty. Reg. N o. 0082699, 430 North Wayne Street, Piqua, Ohio 45356 Attorney for Defendant-Appellant CASEY McDANIEL, 5134 Hawk Road, Mechanicsburg, Ohio 43044 Defendant-Appellant

. . . . . . . . . . PER CURIAM: {¶ 1} This is an appeal of the Champaig n County Common Pleas Court that found Appellant, Casey McDaniel, guilty of possession of heroin, a felony of the fifth degree.2 McDaniel’s appellate counsel filed an appeal pursuant to Anders v. California (1967), 386 U.S. 738. After a thorough review of the entire recor d, we find arguable merit as to the stop and search of McDaniel’s vehicle.
I {¶ 2} On October 20, 2009, McDaniel was pu lled over by Sergeant Eck of the Mechanicsburg police department for having a missing or defective headlight. After initiating the stop, Sergeant Eck asked McDaniel if there was anything in the car that he should know about. McDaniel replied that she had a marijuana pipe in the car. Sergeant Eck removed McDaniel from the car and noticed a cut piece of straw. Serg eant Eck asked McDaniel about the straw and McDaniel replied th at it was heroin. McDaniel was then arrested and indicted for possession of heroin. {¶ 3} On February 23, 2010, the Champaign County Common Pleas Court held a hearing on a motion to suppress filed by McDaniel. On Marc h 1, 2010, the trial court denied McDaniel’s motion to suppress, stating that the vehicle was lawfully st opped and the search of the vehicle was lawful. On Ma rch 8, 2010, McDaniel withdrew he r not guilty plea and entered a plea of no contest. The trial court sentenced he r to three years community control sanctions as well as one hundred hours of community service.
II {¶ 4} Counsel for the Appellant submitte d a brief under the authority of Anders v. California . Appellant’s counsel states that, after reviewing the record of the trial court proceedings he could not find any arguable issues for appeal. {¶ 5} Anders v. California sets forth the procedure appoi nted appellate counsel must3 follow when he/she wishes to withdraw for lack of any meritorious appealable issues. In Anders, the United States Supreme Court held that if counsel does a conscientious examination of the case and determines an appeal to be fri volous, counsel should advi se the court and then should request permi ssion to withdraw. Anders , 386 U.S. 744. Counsel must also give his/her client a copy of the brief along with the request to withdraw. I d. The appellant then must be given sufficient time to raise any matters he so chooses. Id. After those requirements are satisfied, the appellate court must conduct a thorough exa mination of the proceedings to determine if the appeal is actually frivolous. Id. If the appellate court does determine the appeal is frivolous, it may then grant counsel’s re quest to withdraw and then dismiss the appeal without violating any constitutiona l requirements, or the court can proceed to a decision on the merits if state law requires it. Id. {¶ 6} Appellant’s counsel satisfi ed the requirements of Anders v. California . We notified Appellant of her appellate counsel’s repr esentation and offered he r ample time to file a pro se brief. None has been filed. The court shall examine the entire record to determine if this appeal is frivolous or has arguable merit.
III {¶ 7} Appellant’s counsel does set forth one potential assignment of error, which is as follows: {¶ 8} “THE SOLE POTENTIAL ASSIGNMENT OF ERROR IS THAT THE DECISION OVERRULING THE DEFENDANT’S MOTION TO SUPPRESS IS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.” {¶ 9} After an examination of the record we find arguable merit to an argument4 regarding the validity of the stop as well as the subsequent search of McDaniel’s vehicle. McDaniel’s counsel only raises an issue of whether the findings of fact in the motion to suppress hearing are against the manifest weight of the evidence, while failing to raise the validity of the traffic stop and subsequent search. {¶ 10} One potential issue that we have identified is the lawfulness of a stop for a purported headlight violation that may not have been affirmatively established by the evidence adduced at the motion to suppress hearing. A second potential issue which is present in the instant case concerns the prolonged detention of a lawfully licensed driver after the basis for the stop may have dissipated. {¶ 11} In State v. Brown , Montgomery App. No. 20336, 2004-Ohio-4058, we stated the following: {¶ 12} “When a law enforcement officer stops a ve hicle for a traffic vi olation, the officer may detain the motorist for a period of time sufficient to issue the motorist a citation and to perform routine procedures such as a comput er check on the motorist’s driver’s license, registration and vehicle plates. ‘In determining if an officer completed these tasks within a reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consid er whether the officer diligently conducted the investigation.’” State v. Aguirre , Gallia App. 03CA5, 2003-Ohio-4909, quoting State v. Carlson (1995), 102 Ohio App.3d 585, 598-59. The duration of a traffic st op may last no longer than is necessary to resolve the issue that led to the original stop, absent some specific and articulable facts that further detention was reasonable. State v. Chatton (1984), 11 Ohio St.3d 59; see State v. Kerns (Mar. 16, 2001), Montgomery App. No. 18439; State v. Ramos , 155 Ohio App.3d 396,5 2003-Ohio-6535. {¶ 13} In State v. Marbury , Montgomery App. No. 19226, 2003-Ohio-3242, ¶ 7-8, we observed: {¶ 14} “We are charged by Anders to determine whether any issues involving potentially reversible error that are raised by appellate counsel or in his pro se brief are ‘wholly frivolous’ (386 U.S. at 744, 87 S.Ct. 1417, 18 L.Ed.2d 522.) If we find that any issue presented or which an independent analysis reveals is not wholly frivol ous, we must appoint diffe rent appellate counsel to represent the defendant. State v. Pullen (Dec. 6, 2002), Montgomery App. No. 19232, 2002-Ohio-6788). {¶ 15} “Anders equates a frivolous appeal with one that presents issues lacking an arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal. An issue lacks arguable merit if, on the facts and law involved, no responsible cont ention can be made that it o ffers a basis for reversal. Pullen,

supra. ” {¶ 16} The potential errors we have identified ar e not wholly frivolous, since they raise an issue concerning the stop as well as the search of McDaniel’s vehicle. Therefore, we will set aside the Anders brief that was filed and appoint new counsel to repr esent defendant McDaniel. Counsel is free, of course, to raise any other issues that counsel be lieves to ha ve merit. {¶ 17} IT IS SO ORDERED.6 THOMAS J. GRADY, Presiding Judge

MIKE FAIN, Judge

MARY E. DONOVAN, Judge
Copies mailed to: Nick A. Selvaggio Christopher L. Wesner Casey McDaniel Hon. Roger B. Wilson