[Cite as State v. Kaltenbach, 2019-Ohio-687.]

COURT OF APPEALS 

MORGAN COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDOUGLAS KALTENBACH 

 Defendant-Appellant 

JUDGES: 

Hon. John W. Wise, P. J. 

Hon. Patricia A. Delaney, J. 

Hon. Craig R. Baldwin, J. 

Case No. 18 AP 0008 

O P I N I O N 

CHARACTER OF PROCEEDING: Anders 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: February 19, 2019 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

MARK J. HOWDYSHELL JAMES S. SWEENEY 

PROSECUTING ATTORNEY JAMES SWEENEY LAW, LLC 

19 East Main Street 97 South Liberty Street 

McConnelsville, Ohio 43756 Powell, Ohio 43065 
Morgan County, Case No. 18 AP 0008 2

Wise, P. J. 

{¶1} Defendant-appellant Douglas Kaltenbach appeals his conviction on one 

count of Having Weapons While Under Disability, following a plea of no contest in the 

Morgan County Court of Common Pleas. 

Facts and Procedural History 

{¶2} On September 30, 2017, Appellant Kaltenbach was indicted on one count 

of Having Weapons While Under Disability, in violation of R.C. §2923.13(A)(3), a felony 

of the third degree. 

{¶3} Appellant initially pled not guilty and discovery proceeded in this matter. 

{¶4} On May 7, 2018, Appellant came before the court for a change of plea 

wherein Appellant agreed to enter a plea of guilty as charged in the indictment and the 

state of Ohio recommended community control supervision for a period of five (5) years. 

The state further agreed to return the money seized as unrelated to the offense charged. 

The state did state that it would seek forfeiture of the firearms, which the defendant 

opposed. The trial court accepted Appellant’s plea of no contest and set a sentencing 

hearing for July 2, 2018. 

{¶5} At the sentencing hearing on July 2, 2018, and memorialized in a Judgment 

Entry filed July 10, 2018, the trial court sentenced Appellant to five (5) years community 

control supervision. The court further ordered Appellant to pay court costs but did not 

impose a fine in this matter. The court also ordered forfeiture of the firearms and 

ammunition seized under the search warrant, but ordered the return of all other seized 

property. 
Morgan County, Case No. 18 AP 0008 3

{¶6} On November 15, 2018, counsel for Appellant filed a Motion to Withdraw 

and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 

493(1967) asserting one potential assignment of error as to the forfeiture of the firearms, 

claiming that same were owned by Appellant’s son. 

Law and Analysis 

{¶7} 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. 386 U.S. at 744. 

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.

{¶8} By Judgment Entry filed November 26, 2018, this Court noted that counsel 

had filed an Anders brief and had indicated to the Court that he had served Appellant with 

the brief. Accordingly, this Court notified Appellant via Certified U.S. Mail that he “may 

file a pro se brief in support of the appeal on or before December 31, 2018.” 

{¶9} On December 27, 2018, Appellant filed a pro se, two-page, handwritten 

document titled “Brief”. 
Morgan County, Case No. 18 AP 0008 4

{¶10} We find Appellant’s counsel in this matter has adequately followed the 

procedures required by Anders. 

App.R. 16

{¶11} The document Appellant filed on December 27, 2018, we have construed 

as his pro se brief in support of his appeal. This document fails in almost every respect to 

comply with the requirements governing the content of the brief of the Appellant. App.R.16 

(A)(1)-(7). Briefs filed in this Court, whether by counsel or pro se, must comply with App.R. 

16. 

{¶12} Most importantly, Appellant has failed, inter alia, to set forth any 

assignments of error or propositions of law or cite to the record in this matter. App.R. 

16(A)(3) requires that a brief contain assignments of error presented for review on appeal 

and that they be included in a separate statement. 

Law and Analysis

{¶13} Pursuant to Loc.App.R. 16(C) and Anders, this Court has conducted an 

independent examination of the record to determine if there are any issues of arguable 

merit. Anders instructs that if the appellate court determines that the appeal would be 

“wholly frivolous” (i.e., there are no legal points of arguable merit), the court may grant 

counsel's request to withdraw and dismiss the appeal. If, however, the court finds any 

legal points arguable on their merits, the court must afford appellant the assistance of 

counsel before deciding the merits of the case. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 

18 L.Ed.2d 493. 

{¶14} Upon a complete review of the record, this Court agrees that no prejudicial 

error occurred in the lower court, and any appeal on Appellant’s behalf would be frivolous. 
Morgan County, Case No. 18 AP 0008 5

{¶15} Accordingly, the motion of appointed counsel to withdraw is granted, and 

the appeal of the judgment of the Court of Common Pleas of Morgan County, Ohio, is 

dismissed. 

By: Wise, P. J. 

Delaney, J., and 

Baldwin, J., concur. 

JWW/d 0211