State v. Havrilek

[Cite as State v. Havrilek, 2020-Ohio-4969.]

STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       29571


        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID HAVRILEK                                        COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2017-10-3741

                                  DECISION AND JOURNAL ENTRY

Dated: October 21, 2020

        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, David Havrilek, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.


        {¶2}     As a result of firing multiple shots at police officers, Havrilek was charged with

four counts of attempted murder, four counts of felonious assault, eight attendant firearm

specifications, having weapons under disability, and inducing panic. He requested competency

and sanity evaluations, but the results of those evaluations indicated that he was sane and fit to

stand trial. Following numerous pretrials, he pleaded guilty to two counts of attempted murder

and two firearm specifications. His remaining counts and specifications were dismissed pursuant

to the terms of his plea, and the parties agreed that his two firearm specifications would merge for

sentencing. The court sentenced Havrilek to three years on his firearm specification and eight

years on each of his attempted murder counts, all of which it ran consecutively for a total of 19

years in prison. Havrilek then appealed from the court’s judgment.

       {¶3}    On appeal, Havrilek’s appointed counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and moved to withdraw as counsel. Havrilek moved this Court

for an extension of time to file a response, and this Court granted him his requested extension. The

extension ultimately expired, however, without Havrilek filing a response. Accordingly, he has

not proposed any non-frivolous issues for appellate review.


       {¶4}    Upon the filing of an Anders brief, this Court conducts a full examination of the

proceedings to decide whether the case is wholly frivolous. Anders at 744. One court has

elaborated on the nature of a “frivolous” appeal for Anders purposes:

       Anders equates a frivolous appeal with one that presents issues lacking in arguable
       merit. An issue does not lack arguable merit merely because the prosecution can
       be expected to present a strong argument in reply or because it is uncertain whether
       an appellant will ultimately prevail on that issue on appeal. “An issue lacks
       arguable merit if, on the facts and law involved, no responsible contention can be
       made that it offers a basis for reversal.”

State v. Moore, 2d Dist. Greene No. 07-CA-97, 2009-Ohio-1416, ¶ 4, quoting State v. Pullen, 2d

Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. If this Court’s independent review reveals

that any issue presented is not wholly frivolous or that there are other arguable issues, we must

appoint different appellate counsel to represent the appellant. Pullen at ¶ 2.

       {¶5}    As appointed counsel has noted, Havrilek pleaded guilty with the benefit of counsel

and a full plea hearing at which the court reviewed his constitutional and non-constitutional rights.

He also signed a written plea of guilt, outlining his rights and the terms of his plea. Havrilek

indicated that he understood each of his rights, was satisfied with his counsel’s performance, and

wished to plead guilty. There is no indication in the record that his plea was not knowingly,

intelligently, and voluntarily entered. Accordingly, as appointed counsel has noted, his plea

waived any trial court errors preceding it and any issues of ineffective assistance of counsel. See

State v. Franco, 9th Dist. Medina No. 07CA0090-M, 2008-Ohio-4651, ¶ 28. Further, the record

reflects that the trial court comported with the applicable sentencing statutes when fashioning

Havrilek’s sentence.

       {¶6}    Upon this Court’s own full, independent examination of the record, we conclude

that there are no appealable, non-frivolous issues in this case. See State v. Kosturko, 9th Dist.

Summit No. 26676, 2013-Ohio-2670, ¶ 5; State v. Randles, 9th Dist. Summit No. 23857, 2008-

Ohio-662, ¶ 6. Accordingly, we grant appellate counsel’s motion to withdraw and affirm the

judgment of the Summit County Court of Common Pleas.


       {¶7}    Upon a full review of the record, we conclude that Havrilek’s appeal is meritless

and wholly frivolous pursuant to Anders. Appellate counsel’s motion to withdraw as appellate

counsel is hereby granted. The judgment of the Summit County Court of Common Pleas is


                                                                               Judgment affirmed.

       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.

                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



DONALD R. HICKS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. GUEST, Assistant
Prosecuting Attorney, for Appellee.
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