[Cite as State v. Kocak, 2017-Ohio-945.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 15 MA 0173 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

ANDREW KOCAK ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 14 CR 915C 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. Ryan D. Ingram 

7330 Market Street 

Youngstown, Ohio 44512 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

Dated: March 15, 2017
[Cite as State v. Kocak, 2017-Ohio-945.]

WAITE, J. 

{¶1} Appellant Andrew Kocak appeals a September 10, 2015 Mahoning 

County Common Pleas Court judgment entry finding him guilty of violating his 

probation and reimposing his original sentence. Appellant’s counsel filed a no merit 

brief requesting leave to withdraw. A complete review of the case reveals no 

appealable issues. Accordingly, appointed counsel’s motion to withdraw is granted 

and the convictions and sentence are affirmed. 

Factual and Procedural History 

{¶2} On September 18, 2014, Appellant was indicted on the following 

charges: endangering children, a felony of the second degree in violation of R.C. 

2919.22(B)(1)(E), (1)(d); corrupting another with drugs, a felony of the fourth degree 

in violation of R.C. 2925.02(A)(4)(a), (C)(3), felonious assault, a felony of the second 

degree in violation of R.C. 2903.11(A)(1), (D), and two counts of intimidation, felonies 

of the third degree in violation of R.C. 2921.04(B)(2), (D). Pursuant to a Crim.R. 11 

plea agreement, Appellant pleaded guilty to all charges. According to the agreement, 

Appellant would be eligible for judicial release after six months and the state agreed 

to stand silent regarding judicial release. 

{¶3} The trial court imposed the following sentence: three years of 

incarceration for endangering children, eighteen months on the corrupting another 

with drugs count, three years for felonious assault, and one year of incarceration on 

each intimidation count. The trial court ordered the sentences to run concurrently 

and concurrent to Appellant’s sentence in case number 13 CR 1172. Hence, the trial 

court imposed an aggregate sentence of three years of incarceration. 
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{¶4} On May 7, 2015, Appellant filed a motion for judicial release; as per the 

plea agreement, the state stood silent. On July 24, 2015, the trial court held a 

hearing on the motion. On July 29, 2015, the trial court sustained Appellant’s motion 

and imposed a five-year community control period. The trial court’s entry stated that 

it would reimpose the original sentence if Appellant violated his community control. 

{¶5} On August 3, 2015, the state filed a motion to extend or revoke 

Appellant’s probation. Appellant stipulated to probable cause and was found guilty of 

a probation violation. On September 10, 2015, the trial court reimposed Appellant’s 

three-year sentence, with credit for 335 days served. This timely appeal followed. 

No Merit Brief 

{¶6} Based on a review of this matter, appellate counsel seeks to withdraw 

after finding no potentially meritorious arguments for appeal. This filing is known as a 

no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 

1396, 18 L.E.2d 493 (1967). In our district, it is referred to as a Toney brief. See 

State v. Toney, 23 Ohio App.2d 203, 262 N.E. 2d 419 (7th Dist.1970). 

{¶7} In Toney, this Court established the procedure to be used when 

appellate counsel wishes to withdraw from a case deemed a frivolous appeal. 

3. Where a court-appointed counsel, with long and extensive 

experience in criminal practice, concludes that the indigent's appeal is 

frivolous and that there is no assignment of error which could be 

arguably supported on appeal, he should so advise the appointing court 
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by brief and request that he be permitted to withdraw as counsel of 

record. 

4. Court-appointed counsel's conclusions and motion to withdraw as 

counsel of record should be transmitted forthwith to the indigent, and 

the indigent should be granted time to raise any points that he chooses, 

pro se. 

5. It is the duty of the Court of Appeals to fully examine the 

proceedings in the trial court, the brief of appointed counsel, the 

arguments pro se of the indigent, and then determine whether or not 

the appeal is wholly frivolous. 

* * * 

7. Where the Court of Appeals determines that an indigent's appeal is 

wholly frivolous, the motion of court-appointed counsel to withdraw as 

counsel of record should be allowed, and the judgment of the trial court 

should be affirmed. 

Id. at syllabus. 

{¶8} On January 15, 2016, appellate counsel filed the no merit brief in this 

matter. On February 1, 2016, we filed a judgment entry informing Appellant that his 

counsel had filed a no merit brief and giving him thirty days to file his own brief. 

Appellant failed to file a brief in this matter. Accordingly, we must independently 
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examine the record to determine whether there are any potentially meritorious issues 

in this matter. 

Judicial Release 

{¶9} “The court, in its discretion, may revoke the judicial release if the 

offender violates the community control sanction described in division (R)(1) of this 

section.” R.C. 2929.20(R)(2). On August 3, 2015, the state filed a motion to revoke 

Appellant’s probation. Appellant stipulated to probable cause. On September 3, 

2015, the trial court held a probation revocation hearing. As a probation revocation 

hearing is not a criminal trial, the state need not prove a violation beyond a 

reasonable doubt. State v. Harris, 7th Dist. No. 11 MA 51, 2012-Ohio-1304, ¶ 13, 

citing State v. Delaine, 7th Dist. No. 08 MA 257, 2010-Ohio-609, ¶ 14; State v. 

Hylton, 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (4th Dist.1991). Instead, the state 

must present “substantial proof that a defendant violated the terms of his community 

control sanction.” Harris at ¶ 13. 

{¶10} At the hearing, Appellant admitted to stealing the following items from 

his mother: a car, an iPad, three television sets, and $40. He also admitted that he 

bought and ingested heroin in an attempt to kill himself. Although he denied 

threatening or attempting to harm the victims, his drug use and theft crimes constitute 

substantial evidence of a probation violation. Based on Appellant’s admissions, the 

trial court did not abuse its discretion in revoking Appellant’s judicial release. Thus, 

there are no appealable issues regarding the revocation of Appellant’s judicial 

release. 
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Sentencing 

{¶11} Pursuant to R.C.2929.20(K): 

If the court grants a motion for judicial release under this section, the 

court shall order the release of the eligible offender, shall place the 

eligible offender under an appropriate community control sanction, 

under appropriate conditions, and under the supervision of the 

department of probation serving the court and shall reserve the right to 

reimpose the sentence that it reduced if the offender violates the 

sanction. (Emphasis added.) 

{¶12} The trial court’s July 29, 2015 judgment entry stated that “[t]he 

Defendant was further advised that should he violate any term or condition of his 

Community Control Sanction, this court would send him back to the penitentiary for 

the remainder of his sentence.” (Emphasis deleted.) (7/29/15 J.E., p. 1.) Thus, 

pursuant to R.C. 2929.20(K), the trial court reserved the right to reimpose Appellant’s 

original sentence if he violated his community control. As such, the trial court 

properly reimposed Appellant’s original sentence. Thus, there are no appealable 

issues as to Appellant’s sentence. 

Conclusion 

{¶13} Appellate counsel seeks to withdraw as a review of the record did not 

reveal any potentially meritorious arguments. For the reasons provided, this record 

reveals no potentially meritorious arguments. Accordingly, counsel’s motion to 

withdraw is granted and the judgment of the trial court is affirmed. 
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Donofrio, J., concurs. 

Robb, P.J., concurs.