[Cite as State v. Davis, 2017-Ohio-7483.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 105404 

 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

TONY L. DAVIS, JR.

DEFENDANT-APPELLANT 

JUDGMENT: 

DISMISSED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-592237-A 

BEFORE: Stewart, P.J., Boyle, J., and Jones, J. 

RELEASED AND JOURNALIZED: September 7, 2017 
ATTORNEY FOR APPELLANT

Russell S. Bensing 

600 IMG Building 

1360 East Ninth Street 

Cleveland, OH 44114 

Also Listed

Tony L. Davis, Jr., pro se 

Inmate No. 672-164 

Lake Erie Correctional Institution 

501 Thompson Road 

P.O. Box 8000 

Conneaut, OH 44030 

ATTORNEY FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
MELODY J. STEWART, P.J.: 

{¶1} Defendant-appellant Tony L. Davis, Jr. pleaded guilty to aggravated 

vehicular homicide, in violation of R.C. 2903.06(A)(1)(a), with an enhancement for 

driving with a suspended license, making the offense a first-degree felony. Davis also 

pleaded guilty to driving while under the influence, in violation of R.C. 4511.19(A)(1)(f), 

a first-degree misdemeanor, with a specification for a previous driving while under the 

influence conviction. 1 The court sentenced Davis to nine years in prison for the 

aggravated vehicular homicide and 20 days in prison for driving while under the 

influence, to be served concurrently. It also sentenced him to a mandatory five-year term 

of postrelease control and various penalties relating to his drivers license. 

{¶2} The court appointed Davis new counsel for purposes of appeal. Appellate 

counsel now seeks permission to withdraw from the case pursuant to Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Davis can 

raise no nonfrivolous issues on appeal. Davis has had the opportunity to file his own 

merit brief, but has not done so. 

 1

 Counsel’s brief erroneously states that Davis pleaded guilty to a different count of the 

indictment, which alleged he was driving while under the influence in violation of R.C. 

4511.19(A)(1)(a), a first-degree misdemeanor with the same specification. This error does not affect 

our analysis. 
{¶3} Consistent with Anders and Loc.App.R. 16(C) of the Eighth District Court of 

Appeals, counsel filed a no-merit brief in addition to his motion to withdraw as counsel.2

 

Counsel’s no-merit brief raises two possible assignments of error, challenging the nature 

of Davis’s plea and the sentence the court imposed, and explains why both would be 

frivolous. We evaluate counsel’s arguments in light of the record before us. State v. 

Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 20. 

{¶4} Counsel suggests that Davis could file an assignment of error challenging the 

validity of his guilty plea on three separate grounds before concluding that such a 

challenge would be meritless. Counsel posits that Davis could argue that the trial court 

failed to advise him of his constitutional and nonconstitutional rights before accepting his 

guilty plea. Counsel indicates that the record rebuts this assertion, however, and shows 

that the court performed all of its obligations in this regard by advising Davis of his 

various rights: to be tried by jury, to confront the witnesses against him, to subpoena his 

own witnesses, that the state must prove his guilt beyond a reasonable doubt, and to be 

advised of the nature of the charges, penalties he faced, and that his guilty plea would 

constitute a complete admission of guilt. Our review of the record confirms that counsel 

is correct. 

{¶5} Next, counsel addresses and disposes of a challenge to Davis’s plea on 

grounds that he did not comprehend the proceedings. Counsel notes that Davis 

 2

 We note that recently the Fourth Appellate District has adopted a new procedure where it 

will no longer accept motions to withdraw pursuant to Anders. See State v. Wilson, 4th Dist. 

Lawrence No. 16CA12, 2017-Ohio-5772. 
affirmatively answered “yes” to every question the court posed regarding his rights and 

his possible sentence. Counsel states that there is “absolutely nothing” in the record 

indicating that Davis was less than fully aware of the nature and consequences of 

pleading guilty. We agree. 

{¶6} Counsel finally proposes that Davis might argue that his plea is defective on 

grounds of ineffective assistance of counsel, but shows how such argument would be 

without merit in light of the record. Davis pronounced that he was satisfied with his 

representation and that no threat, promise, or other inducement was made that caused him 

to plead guilty. We agree, and pursuant to Anders, find that no nonfrivolous argument 

lies in challenging Davis’s guilty plea. 

{¶7} Counsel also suggests that Davis could challenge his sentence as being 

contrary to law or clearly and convincingly unsupported by the record; however, counsel 

asserts that such a challenge would also be meritless. A defendant does not have a 

constitutional right to appellate review of his or her criminal sentence; “the only right to 

appeal is the one provided by statute.” State v. Akins, 8th Dist. Cuyahoga No. 99478, 

2013-Ohio-5023, ¶ 12. Because Davis’s nine-year sentence for a felony of the first 

degree was not a maximum sentence, pursuant to R.C. 2953.08(A), the only potentially 

viable avenue of review here would be arguing that the sentence is contrary to law. 

There is no question that Davis’s sentence is within the statutory range and that the court 

stated it gave appropriate consideration to the required sentencing factors. See State v. 

Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 12 (“As long as a trial court 
considered all sentencing factors, the sentence is not contrary to law and the appellate 

inquiry ends.”). Moreover, counsel suggests that in light of the record, such a challenge 

would be frivolous even under the broader review provided in State v. Jones, 

2016-Ohio-7702, 76 N.E.3d 596 (8th Dist.).3

 We agree with counsel that this potential 

assignment of error would be frivolous under Anders. We therefore dismiss this appeal 

and grant counsel’s motion to withdraw. 

{¶8} Appeal dismissed. 

It is ordered that appellee recover of appellant costs herein taxed. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, PRESIDING JUDGE 

MARY J. BOYLE, J., and 

LARRY A. JONES, SR., J., CONCUR 

 3

 This case is presently before this court, en banc, to consider the issue of whether State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, permits an appellate court to modify 

or vacate and remand a sentence if it finds by clear and convincing evidence that the record does not 

support the trial court’s findings under R.C. 2929.11 and 2929.12. The en banc resolution of the 

issue in Jones would not impact our analysis here.