State v. Phelps

[Cite as State v. Phelps, 2026-Ohio-1423.]


                                IN THE OHIO COURT OF APPEALS
                                  FIFTH APPELLATE DISTRICT
                                   FAIRFIELD COUNTY, OHIO


  STATE OF OHIO                                          Case No. 2025 CA 00036

   Plaintiff - Appellee                                  Opinion and Judgment Entry

  -vs-                                                   Appeal from the Fairfield County Court of
                                                         Common Pleas, Case No. 2019 CR 00499
  ROBERT PHELPS
                                                         Judgment: Affirmed
  Defendant - Appellant
                                                         Date of Judgment Entry: April 20, 2026



BEFORE: William B. Hoffman; Robert G. Montgomery; Kevin W. Popham, Judges

APPEARANCES: Andrea Boyd, for Plaintiff-Appellee; Todd W. Barstow, for
Defendant-Appellant.




Hoffman, J.


         {¶1} Defendant-appellant Robert Phelps appeals the judgment entered by the

Fairfield County Common Pleas Court overruling a motion for judicial release. Plaintiff-

appellee is the State of Ohio.

                                     STATEMENT OF THE CASE1


         {¶2} On December 22, 2020, Appellant entered pleas of guilty in the Fairfield

County Common Pleas Court to twelve counts of aggravated trafficking in drugs and one



1 A rendition of the facts is unnecessary to our disposition of this appeal.
count of engaging in a pattern of corrupt activity. In exchange for his guilty pleas, the

State dismissed the remaining seventy-one counts of the indictment. Pursuant to a

negotiated plea agreement, the parties jointly recommended a sentence of fifteen years of

incarceration.     The trial court convicted Appellant upon his pleas of guilty and in

accordance with the joint recommendation, sentenced Appellant to fifteen years of

incarceration.     Appellant appealed to this Court, and we affirmed the judgment of

conviction and sentence. State v. Phelps, 2022-Ohio-3025 (5th Dist.).

        {¶3} On September 4, 2025, Appellant filed a motion asking the trial judge to

recuse himself. Appellant filed a notice of appeal on September 24, 2025, stating on

September 8, 2025, the trial court denied his request for recusal, mistakenly labeling the

entry a denial of a request for judicial release. Appellant attached an entry to the

docketing statement filed in this Court bearing a file stamp of September 8, 2025,

purporting to overrule Appellant’s motion for judicial release, despite the fact no motion

for judicial release was pending. However, the September 8, 2025, judgment is not on

the docket of this case, nor is the entry in the record transmitted to this Court. 2

Nonetheless, it is from the September 8, 2025, judgment of the trial court Appellant

prosecutes this appeal.

        {¶4} Appellate counsel for Appellant has filed a Motion to Withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), rehearing den., 388 U.S. 924,

indicating the within appeal is wholly frivolous. In Anders, the United States Supreme



2Though not relevant to our ultimate disposition of this appeal, we raise concern about how a judgment

entry attached to Appellant’s docketing statement and brief which bears a file stamp of the clerk and is a
judgment entry bearing the judge’s signature no longer exists in the record before us nor is it noted on the
clerk’s docket. If the entry was inappropriately filed, the remedy would be to correct it via a nunc pro tunc
entry. But merely removing the entry from the record after being filed, and failing to note its filing on the
court docket would be inappropriate.
Court held if, after a conscientious examination of the record, a defendant's counsel

concludes the case is wholly frivolous, then he or she should so advise the court and

request permission to withdraw. Id. at 744. Counsel must accompany the request with a

brief identifying anything in the record which could arguably support the appeal. Id.

Counsel also must: (1) furnish the client with a copy of the brief and request to withdraw,

and (2) allow the client sufficient time to raise any matters the client chooses. Id. Once

the defendant's counsel satisfies these requirements, the appellate court must fully

examine the proceedings below to determine if any arguably meritorious issues exist. If

the appellate court also determines the appeal is wholly frivolous, it may grant counsel's

request to withdraw and dismiss the appeal without violating constitutional

requirements, or may proceed to a decision on the merits if state law so requires. Id.

       {¶5} We find counsel has complied with Anders. Appellant has not filed a pro se

brief, and the State has not filed a response brief. Counsel sets forth one assignment of

error which could arguably support the appeal:



               THE TRIAL COURT ERRED BY NOT RULING ON APPELLANT’S

       MOTION TO RECUSE AND MISCHARACTERIZING THAT MOTION AS A

       MOTION FOR JUDICIAL RELEASE.



       {¶6} If the judgment entry of September 8, 2025 was a part of the record on

appeal, the judgment on its face purports to overrule a motion for judicial release. A

judgment overruling a motion for judicial release is not a final, appealable order, and this

Court would not have jurisdiction over the appeal. State v. Buchanan, 2007-Ohio-1578,

¶ 13 (5th Dist.).
         {¶7} In his proposed assignment of error, counsel argues the trial court erred in

mischaracterizing the motion for recusal as a motion for judicial release, and in failing to

rule on the motion for recusal. Subsequent to Appellant’s motion for recusal, the trial

court dismissed Appellant’s petition for post-conviction relief as untimely filed and ruled

on Appellant’s motion to dismiss the indictment. Because the trial court continued to rule

on Appellant’s pending motions, we find the trial court overruled Appellant’s motion for

recusal sub silentio.    Nevertheless, pursuant to R.C. 2701.03, this Court is without

authority to review a trial court’s decision on a request to recuse. Colley v. Crabtree,

2024-Ohio-437, ¶ 47 (4th Dist.). We find the proposed assignment of error is without

merit.

         {¶8} After independently reviewing the record, we agree with counsel's

conclusion no arguably meritorious claims exist upon which to base an appeal. Hence, we

find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw,

and affirm the judgment of the Fairfield County Court of Common Pleas.
      {¶9} The judgment of the Fairfield County Common Pleas Court is affirmed.

      {¶10} Costs to Appellant.




By: Hoffman, P.J.

Montgomery, J. and

Popham, J. concur.