[Cite as State v. Willenbrink, 2020-Ohio-6715.]

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: December 16, 2020 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

 

John D. Hill, Jr., for Defendant-Appellant. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

JAMMEY RAY WILLENBRINK, 

 Defendant-Appellant. 

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: 

: 

: 

APPEAL NO. C-190330 

TRIAL NO. B-1801074(A) 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2 

MOCK, Presiding Judge. 

{¶1} Counsel for defendant-appellant Jammey Ray Willenbrink filed a “nomerit” brief in this case. For the reasons set forth below, we agree with counsel’s 

analysis. 

41-Count Indictment Leads to Guilty Pleas 

{¶2} On March 2, 2018, the Hamilton County grand jury issued a 41-count 

indictment against Willenbrink. The indictment contained five counts of rape in 

violation of R.C. 2907.02(A)(1)(B), 18 counts of rape in violation of R.C. 

2907.02(A)(2), and 18 counts of sexual battery in violation of R.C. 2907.03(A)(5). 

The alleged victims were Willenbrink’s children whom the state alleged that 

Willenbrink raped repeatedly resulting in two pregnancies. After plea discussions, 

Willenbrink agreed to enter guilty pleas to six counts of rape and eight counts of 

sexual battery. The remaining counts were dismissed. After accepting his guilty 

pleas, the trial court engaged Willenbrink in a Crim.R. 11 colloquy and found him 

guilty of all the charges to which he had entered guilty pleas. After a presentence 

investigation, the trial court sentenced Willenbrink in the following manner: 

Count Charge ORC Level Sentence 

5 Rape 2907.02(A)(2) F1 8 years 

6 Sexual Battery 2907.03(A)(5) F3 4 years 

9 Sexual Battery 2907.03(A)(5) F3 4 years 

11 Sexual Battery 2907.03(A)(5) F3 4 years 

12 Rape 2907.02(A)(2) F1 9 years 

15 Sexual Battery 2907.03(A)(5) F3 4 years 

17 Sexual Battery 2907.03(A)(5) F3 4 years 

18 Rape 2907.02(A)(2) F1 9 years 

21 Sexual Battery 2907.03(A)(5) F3 4 years 

28 Rape 2907.02(A)(2) F1 9 years 
OHIO FIRST DISTRICT COURT OF APPEALS

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30 Rape 2907.02(A)(2) F1 8 years 

37 Sexual Battery 2907.03(A)(5) F3 4 years 

38 Rape 2907.02(A)(2) F1 10 years 

41 Sexual Battery 2907.03(A)(5) F3 4 years 

All other counts were dismissed at the state’s request. The trial court ordered 

Willenbrink to serve the sentences for counts 6, 12, 18, 21, 28, and 38 consecutively 

and ordered him to serve counts 5, 9, 11, 15, 17, 30, 37, and 41 concurrently with the 

terms ordered in counts 6, 12, 18, 21, 28, and 38. The aggregate total of 

Willenbrink’s sentences was 45 years in prison. Willenbrink was also classified as a 

Tier III sex offender. Willenbrink timely filed his notice of appeal. 

{¶3} Appointed appellate counsel for Willenbrink has submitted a no-error 

brief in accordance with 1st Dist. Loc.R. 16.2, stating that he has failed to find 

“anything in the record that might arguably support the appeal.” See Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel has 

communicated his determination to Willenbrink, has offered his client an 

opportunity to raise any issues in support of his appeal, has brought those issues 

identified by Willenbrink to the attention of this court, and has moved for permission 

to withdraw as counsel. See State v. Gilbert, 1st Dist. Hamilton No. C-110382, 2012-

Ohio-1366, ¶ 5, citing Freels v. Hills, 843 F.2d 958, 960 (6th Cir.1988). The state has 

agreed that the trial court did not err to the prejudice of Willenbrink. 

Anders and 1st Dist. Loc.R. 16.2 

{¶4} Willenbrink’s appellate counsel has filed a brief pursuant to Anders 

and 1st Dist. Loc.R. 16.2. Anders held that where, after a conscientious examination 

of the case, appellate counsel is unable to find any meritorious issues for review, then 

counsel should inform the court and request permission to withdraw from the case. 

Anders at 744. In addition, the request must be 
OHIO FIRST DISTRICT COURT OF APPEALS

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accompanied by a brief referring to anything in the record that might 

arguably support the appeal. A copy of counsel’s brief should be 

furnished the indigent and time allowed him to raise any points that 

he chooses; the court—not counsel—then proceeds, after a full 

examination of all the proceedings, to decide whether the case is 

wholly frivolous. If it so finds it may grant counsel’s request to 

withdraw and dismiss the appeal insofar as federal requirements are 

concerned, or proceed to a decision on the merits, if state law so 

requires. On the other hand, if it finds any of the legal 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. 

{¶5} This court has established procedures for counsel to follow when 

submitting a no-error brief. See 1st Dist. Loc.R. 16.2. Before filing a no-error brief, 

counsel must first communicate with the appellant informing appellant of the 

determination that no issues of merit have been found and request that appellant 

communicate to counsel any issues appellant may believe are present. See 1st Dist. 

Loc.R. 16.2(C)(1). Counsel is then to review the issues raised by the appellant to 

determine whether they are wholly frivolous. See 1st Dist. Loc.R. 16.2(C)(2). If 

counsel receives appellant’s responses prior to filing a brief, counsel should append 

appellant’s issues to the no-merit brief. See 1st Dist. Loc.R. 16.2(C)(2)(a). The brief 

must contain a statement that counsel has reviewed the record and found no issues 

of arguable merit, a request for the court to independently review the record to 

determine if there are indeed no arguable issues, and reference any part of the record 

that might support an arguably meritorious position on appeal. See 1st Dist. Loc.R. 
OHIO FIRST DISTRICT COURT OF APPEALS

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16.2(B)(1)-(3). The brief shall contain a statement of compliance, in which counsel 

sets forth that he or she has conscientiously examined the record, concluded that the 

record discloses no issues of arguable merit and that the appeal is wholly frivolous, 

that this conclusion has been communicated to appellant, and that appellant has 

been invited to communicate to counsel any issue that appellant wants counsel to 

raise on appeal. See 1st Dist. Loc.R. 16.2(D)(1). Counsel shall also file a motion to 

withdraw as counsel while indicating that he or she remains to assist appellant in the 

prosecution of the appeal until the motion is granted. See 1st Dist. Loc.R. 16.2(D)(2). 

{¶6} In his no-merit brief, counsel complied with all requirements set forth 

by this court in 1st Dist. Loc.R. 16.2. Counsel detailed his review of the entire record, 

including an analysis of the propriety of the guilty-pleas colloquy and the trial court’s 

sentencing determinations. Counsel indicated that he communicated his conclusions 

to Willenbrink. In response, Willenbrink asked counsel to raise the issues of his 

mental state at the time that he tendered his guilty pleas, and claimed that he did not 

agree to be represented by his court-appointed attorneys. But, as counsel notes, 

neither of those issues could be addressed on direct appeal as they require reference 

to information outside the record before us. See State v. Ishmail, 54 Ohio St.2d 402, 

403, 377 N.E.2d 500 (1978). 

{¶7} Pursuant to 1st Dist. Loc.R. 16.2(B)(3), counsel has referenced the 

following parts of the record that arguably support the appeal: (1) whether the trial 

court complied with Crim.R. 11(C) in accepting Willenbrink’s guilty pleas; (2) 

whether Willenbrink’s guilty pleas were tendered knowingly, voluntarily, and 

intelligently; (3) whether Willenbrink’s trial counsel was ineffective in any way; (4) 

whether the sentences imposed by the trial court were contrary to law or 

disproportionate to Willenbrink’s conduct. 
OHIO FIRST DISTRICT COURT OF APPEALS

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The Guilty Pleas Were Properly Accepted 

{¶8} We first consider counsel’s invitation to review the propriety of 

Willenbrink’s guilty pleas. Before accepting a guilty plea, the trial court must inform 

the defendant that by pleading guilty or no contest, he is waiving the following 

constitutional rights: the privilege against self-incrimination, the right to a jury trial, 

the right to confront his accusers, and the right of compulsory process of witnesses. 

Crim.R. 11(C)(2)(c). The trial court must also inform the defendant of certain 

nonconstitutional rights, including the nature of the charges, the maximum penalty 

involved, the eligibility of the defendant for probation or community control, and the 

effect of the plea. Crim.R. 11(C)(2)(a) and (b). 

{¶9} A trial court must strictly comply with Crim.R. 11 when it explains the 

constitutional rights set forth in Crim.R. 11(C)(2)(c). State v. Veney, 120 Ohio St.3d 

176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus. When a trial court fails to explain 

these rights, the guilty or no-contest plea is invalid “under a presumption that it was 

entered involuntarily and unknowingly.” State v. Griggs, 103 Ohio St.3d 85, 2004-

Ohio-4415, 814 N.E.2d 51, ¶ 12. A trial court, however, need only substantially 

comply with Crim.R. 11 when explaining the nonconstitutional rights set forth in 

Crim.R. 11(C)(2)(a) and (b). “Substantial compliance means that under the totality of 

the circumstances the defendant subjectively understands the implications of his 

plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 

474 (1990). 

{¶10} A review of the transcript indicates that the trial court engaged 

Willenbrink in a thorough review of the rights he was waiving by entering his guilty 

pleas, he understood the nature of the proceedings, the maximum penalties, and 

ramifications of pleading guilty. His constitutional and nonconstitutional rights 

were explained in detail. The trial court engaged Willenbrink, asking questions and 
OHIO FIRST DISTRICT COURT OF APPEALS

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receiving answers indicating that the pleas were entered knowingly, voluntarily, and 

intelligently. The trial court complied completely with Crim.R. 11(C). 

The Sentences Imposed Were Proper 

{¶11} We next consider counsel’s suggestion that Willenbrink’s sentences 

were either contrary to law or disproportionate to his conduct. Pursuant to R.C. 

2953.08(G)(2), we may modify or vacate a defendant’s sentence only if we clearly 

and convincingly find that the record does not support the mandatory sentencing 

findings or that the sentence is contrary to law. State v. Marcum, 146 Ohio St.3d 

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23. “[A] sentence [is] not clearly and 

convincingly contrary to law where the trial court * * * considered the purposes and 

principles of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism 

factors contained in R.C. 2929.12, properly applied postrelease control and imposed 

a sentence within the statutory range.” State v. White, 2013-Ohio-4225, 997 N.E.2d 

629, ¶ 12 (1st Dist.), citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124, ¶ 18. 

{¶12} In this case, when deciding the length of each sentence, the trial court 

considered the purposes and principles of sentencing under R.C. 2929.11 and the 

sentencing factors under R.C. 2929.12. See State v. Smith, 1st Dist. Hamilton No. C190235, 2020-Ohio-3516, ¶ 11-12. The sentences were within the statutory ranges, 

and the trial court properly imposed postrelease control. Further, the trial court 

made the necessary findings pursuant to R.C. 2929.14(C)(4) to support the 

imposition of consecutive sentences. See State v. Chandler, 1st Dist. Hamilton No. 

C-190153, 2020-Ohio-164, ¶ 10. We find nothing within the trial court’s imposition 

of the sentences that could arguably support an appeal. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Ineffective Assistance of Counsel 

{¶13} Counsel also suggests that we consider whether Willenbrink’s trial 

counsel provided effective assistance. A claim that trial counsel was ineffective 

requires a determination by this court that trial counsel’s performance fell below an 

objective standard of reasonableness, and that the defendant was prejudiced as a 

result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). 

Counsel’s performance will only be deemed deficient if it fell below an objective 

standard of reasonableness. Strickland at 688; Bradley at 142. “[A] court must 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland at 689. 

{¶14} We have reviewed the record in this case and find no indication that 

counsel’s performance was objectively unreasonable, and we see nothing in counsel’s 

performance that prejudiced Willenbrink. Any argument in that regard would have 

been feckless. 

Counsel’s Motion to Withdraw 

{¶15} We note in this case that counsel did not file a separate motion to 

withdraw, but rather asked within the body of his brief that he be allowed to 

withdraw. The contents of the no-merit brief are outlined in App.R. 16.2(B), and 1st 

Dist. Loc.R. 16.2(D)(2) makes clear that the motion to withdraw should be filed 

separately. The filing of a motion to withdraw is an important aspect of this court’s 

no-merit procedure under 1st Dist. Loc.R. 16.2. Once the motion is filed, it allows the 

court to move forward while protecting both the rights of the client and the 

professional responsibilities of the attorney. If, after review, this court concludes 

that the matter presents issues that appear meritorious, counsel’s motion to 
OHIO FIRST DISTRICT COURT OF APPEALS

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withdraw can be granted and new counsel appointed to investigate those issues as 

well as any others counsel may find. See State v. Green, 1st Dist. Hamilton No. C170477, 2018-Ohio-2378, ¶ 5. Alternately, if the appeal is truly meritless, counsel 

need not withdraw as this court will have agreed with counsel’s determination. 

{¶16} For this reason, the preferred practice is that counsel file a separate 

motion to withdraw rather than seeking to withdraw within the body of a 1st Dist. 

Loc.R. 16.2(B) brief. But the failure to file a separate motion to withdraw is not a 

barrier to the resolution of this matter. In this instance, we will consider the section 

of counsel’s brief in this case as a motion to withdraw filed in compliance with 1st 

Dist. Loc.R. 16.2(D)(2) and will proceed accordingly. But we caution counsel in 

future matters to ensure compliance with 1st Dist. Loc.R. 16.2(D)(2). 

Conclusion 

{¶17} We have examined the record and we agree with counsel’s conclusion 

that the proceedings below were free from error prejudicial to Willenbrink and that 

no grounds exist to support a meritorious appeal. Therefore, we overrule counsel’s 

motion to withdraw from his representation of Willenbrink and affirm the judgment 

of the trial court. We hold that this appeal is frivolous under App.R. 23 and without 

“reasonable cause” under R.C. 2505.35. But the court refrains from taxing costs and 

expenses against Willenbrink because he is indigent. 

Judgment Affirmed. 

ZAYAS and WINKLER, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.