[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.
Counsel’s brief erroneously states that Davis pleaded guilty to a different count of the
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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
We note that recently the Fourth Appellate District has adopted a new procedure where it
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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
This case is presently before this court, en banc, to consider the issue of whether State v.
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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.
State v. Davis
Combined Opinion