[Cite as State v. Stuart , 2017-Ohio-8572.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105050

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. BILLY D. STUART

DEFENDANT-APPELLANT

JUDGMENT:

DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605031-A

BEFORE: Keough, A.J., S. Gallagher , J., and Celebrezze, J.

RELEASED AND JOURNALIZED: November 16, 2017ATTORNEY FOR APPELLANT Ronald A. Skingle 6505 Rockside Road, Suite 320 Independence, Ohio 44131

APPELLANT Billy D. Stuart, pro se Inmate No. 684-872 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, Ohio 44430

ATTORNEY FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113KATHLEEN ANN KEOUGH, A.J.: {¶1} Defendant-appellant, B illy Stuart, appeals his conviction following a guilty plea. Stuart was granted a delayed app eal, and we appointed appellate counsel. C ounsel filed a brief

pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested leave to withdraw, claiming any potential assignment of error would be wholly

frivolous. This court held counsel’s motion in abeyance pending our independent review of the record, and provided Stuart an oppor tunity to file a pro se brief, which he failed to do. After thoroughly examining the record, we concur w ith counsel’s assessment and grant counsel’s motion to withdraw and dismiss the appeal. {¶2} In 2016, Stuart was indicted with two c ounts of trafficking (Counts 1 and 3) and drug possession (Counts 2 and 4), and one count each of having weapons while under disability (Count 5), carrying a concealed weapon (Count 6), and possession of criminal tools (Count 7). The trafficking charges carried a one-year fi rearm specification, and all counts requested forfeiture. Following voir dire, Stuart entered into a plea agreement with the state, agreeing to plead guilty to both counts of trafficking and attendant one-year fir earm specifications and forfeiture requests, and having weapons while under disability with an agreement to forfeit the weapon involved. All other counts were nolled. The tria l court sentenced Stuart to a total of six years in prison, and advised him that he w ould be subject to a mandatory five years of postrelease control. Stuart was also ordered to pay a mandatory $10,000 fine. {¶3} In Anders , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the United States Supreme Court held that if counsel thoroug hly reviews the record and concl udes that the appeal is “wholly frivolous,” counsel may advise the court of that fact and request permission to withdraw from the

case. Id . at 744. Counsel’s request to withdraw must “be accompanied by a brief referring toanything in the record that might arguably support the [a]ppeal.” Id . Counsel must also furnish a copy of the brief to his client in sufficient time to allow the appellant to file his own brief, pro se.

Id

. See also Loc.App.R. 16(C). {¶4} In this case, appointed counsel complied with the Anders requirements and those of Loc.App.R. 16(C). Counsel states in his brief that after reviewin g the entire record, he could not identify any prejudicial error or nonfrivolous issues to raise on direct appeal. Specifically, counsel (1) reviewed the record for compliance with Crim.R. 11 re lative to the requirements for a knowing, voluntary, and intelligent plea and found no deviations from the requirements of the rule; and (2) considered the sentencing proceedings and found no sentencing errors. {¶5} Pursuant to Loc.App.R. 16(C) and Anders , this court has conduc ted 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 arguab le merit), the court may grant counsel’s request to withdraw and dismiss the appeal. If, however, the court fi nds any legal points arguable on their merits, the court must afford appellant the assistance of counsel before deci ding the merits of the case.

Anders , 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. {¶6} Upon a complete review of the record, this court agrees that no prejudicial error occurred in the lower court, and any appeal on St uart’s behalf would be frivolous. Accordingly, the motion of appointed counsel to withdraw is granted, and the appeal is dismissed It is ordered that appellee recove r from appellant costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE SEAN C. GALLAGHER, J., and FRANK D. CELEBREZZE, JR., J., CONCUR