[Cite as State v. Calvert, 2011-Ohio-2183.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24306
vs. : T.C. CASE NO. 10CR2337/2
THOMAS CALVERT : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 6th day of May, 2011.
Carley J. Ingram, Asst. Pros. Attorney, Atty. Reg. No.0020084, P.O. Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee
Jessica R. Moss, Atty. Reg. No.0085437, 2233 Miamisburg Centerville Road, Dayton, OH 45459 Attorney for Defendant
GRADY, P.J.:
{¶ 1} Defendant, Thomas Calvert, pled guilty to one count of
burglary, R.C. 2911.12(A)(3), a felony of the third degree. As
part of the plea agreement, the parties stipulated that Defendant’s
sentence would not exceed three years. The trial court sentenced 2
Defendant to a three year prison term.
{¶ 2} Defendant timely appealed to this court from his
conviction and sentence. Defendant’s appellate counsel filed an
Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 19 L.Ed.2d 493, stating that she could find no meritorious
issues for appellate review. We notified Defendant of his
appellate counsel’s representations and afforded him ample time
to file a pro se brief. None has been received. This case is
now before us for our independent review of the record. Penson
v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 3} Defendant’s appellate counsel has identified two
possible issues for appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “DID THE TRIAL COURT COMPLY WITH THE REQUIREMENTS OF
CRIMINAL RULE 11 IN ACCEPTING THE APPELLANT’S PLEA OF GUILTY TO
ONE (1) COUNT OF BURGLARY (OCCUPIED/CRIMINAL OFFENSE) IN VIOLATION
OF SECTION 2911.12(A)(3) OF THE OHIO REVISED CODE, A FELONY OF
THE THIRD DEGREE?”
{¶ 5} Crim.R. 11(C)(2) governs the trial court’s acceptance
of guilty or no contest pleas in felony cases and provides:
{¶ 6} “(2) In felony cases the court may refuse to accept a
plea of guilty or a plea of no contest, and shall not accept a
plea of guilty or no contest without first addressing the defendant 3
personally and doing all of the following:
{¶ 7} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
{¶ 8} “(b) Informing the defendant of and determining that
the defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
{¶ 9} “(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving
the rights to jury trial, to confront witnesses against him or
her, to have compulsory process for obtaining witnesses in the
defendant's favor, and to require the state to prove the defendant's
guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.”
{¶ 10} In order to be constitutionally valid and comport with
due process, a guilty plea must be entered knowingly, intelligently
and voluntarily. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274. Compliance with Crim.R. 11(C)(2) in
accepting guilty or no contest pleas portrays those qualities.
{¶ 11} In State v. McGrady, Greene App. No. 2009CA60, 4
2010-Ohio-3243, at ¶11-13, this court stated
{¶ 12} “In order for a plea to be given knowingly and
voluntarily, the trial court must follow the mandates of Crim.
R. 11(C). If a defendant's guilty plea is not voluntary and knowing,
it has been obtained in violation of due process and is void. Boykin
v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d
274.
{¶ 13} “A defendant who challenges his guilty plea on the basis
that it was not knowingly, intelligently, and voluntarily made
must show a prejudicial effect. State v. Stewart (1977), 51 Ohio
St.2d 86, 93; Crim. R. 52(A). The test is whether the plea would
have been otherwise made. Id. at 108.
{¶ 14} “A trial court must strictly comply with Crim. R. 11
as it pertains to the waiver of federal constitutional rights.
These include the right to trial by jury, the right of
confrontation, and the privilege against self-incrimination. Id.
at 243-44. However, substantial compliance with Crim. R. 11(C)
is sufficient when waiving non-constitutional rights. State v.
Nero (1990), 56 Ohio St.3d 106, 108. The non-constitutional rights
that a defendant must be informed of are the nature of the charges
with an understanding of the law in relation to the facts, the
maximum penalty, and that after entering a guilty plea or a no
contest plea, the court may proceed to judgment and sentence. Crim. 5
R. 11(C)(2)(a)(b); State v. Philpott, Cuyahoga App. No. 74392,
citing McCarthy v. U.S. (1969), 394 U.S. 459, 466, 89 S.Ct. 1166,
22 L.Ed.2d 418. Substantial compliance means that under the
totality of the circumstances, the defendant subjectively
understands the implications of his plea and the rights he is
waiving. Nero, 56 Ohio St.3d at 108.”
{¶ 15} Our review of the plea hearing demonstrates that the
trial court scrupulously complied with all of the requirements
in Crim.R. 11(C)(2), and advised Defendant about all of the
constitutional rights he would give up by pleading guilty, as well
as all of the other non-constitutional matters. This record amply
demonstrates that Defendant’s guilty plea was entered knowingly,
intelligently and voluntarily. This assignment of error lacks
arguable merit.
SECOND ASSIGNMENT OF ERROR
{¶ 16} “DID THE TRIAL COURT ERR IN SENTENCING THE APPELLANT
TO THREE (3) YEARS IMPRISONMENT BASED ON HIS CONVICTION FOR
BURGLARY, A FELONY OF THE THIRD DEGREE, IN VIOLATION OF
2911.12(A)(3) OF THE Ohio REVISED CODE.”
{¶ 17} In State v. Jeffrey Barker, Montgomery App. No. 22779,
2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 18} “The trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is 6
not required to make any findings or give its reasons for imposing
maximum, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph 7 of the
syllabus. Nevertheless, in exercising its discretion the trial
court must consider the statutory policies that apply to every
felony offense, including those set out in R.C. 2929.11 and 2929.12.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, at ¶37.
{¶ 19} “When reviewing felony sentences, an appellate court
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[Cite as State v. Calvert, 2011-Ohio-2183.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24306
vs. : T.C. CASE NO. 10CR2337/2
THOMAS CALVERT : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 6th day of May, 2011.
Carley J. Ingram, Asst. Pros. Attorney, Atty. Reg. No.0020084, P.O. Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee
Jessica R. Moss, Atty. Reg. No.0085437, 2233 Miamisburg Centerville Road, Dayton, OH 45459 Attorney for Defendant
GRADY, P.J.:
{¶ 1} Defendant, Thomas Calvert, pled guilty to one count of
burglary, R.C. 2911.12(A)(3), a felony of the third degree. As
part of the plea agreement, the parties stipulated that Defendant’s
sentence would not exceed three years. The trial court sentenced 2
Defendant to a three year prison term.
{¶ 2} Defendant timely appealed to this court from his
conviction and sentence. Defendant’s appellate counsel filed an
Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 19 L.Ed.2d 493, stating that she could find no meritorious
issues for appellate review. We notified Defendant of his
appellate counsel’s representations and afforded him ample time
to file a pro se brief. None has been received. This case is
now before us for our independent review of the record. Penson
v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 3} Defendant’s appellate counsel has identified two
possible issues for appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “DID THE TRIAL COURT COMPLY WITH THE REQUIREMENTS OF
CRIMINAL RULE 11 IN ACCEPTING THE APPELLANT’S PLEA OF GUILTY TO
ONE (1) COUNT OF BURGLARY (OCCUPIED/CRIMINAL OFFENSE) IN VIOLATION
OF SECTION 2911.12(A)(3) OF THE OHIO REVISED CODE, A FELONY OF
THE THIRD DEGREE?”
{¶ 5} Crim.R. 11(C)(2) governs the trial court’s acceptance
of guilty or no contest pleas in felony cases and provides:
{¶ 6} “(2) In felony cases the court may refuse to accept a
plea of guilty or a plea of no contest, and shall not accept a
plea of guilty or no contest without first addressing the defendant 3
personally and doing all of the following:
{¶ 7} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
{¶ 8} “(b) Informing the defendant of and determining that
the defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
{¶ 9} “(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving
the rights to jury trial, to confront witnesses against him or
her, to have compulsory process for obtaining witnesses in the
defendant's favor, and to require the state to prove the defendant's
guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.”
{¶ 10} In order to be constitutionally valid and comport with
due process, a guilty plea must be entered knowingly, intelligently
and voluntarily. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274. Compliance with Crim.R. 11(C)(2) in
accepting guilty or no contest pleas portrays those qualities.
{¶ 11} In State v. McGrady, Greene App. No. 2009CA60, 4
2010-Ohio-3243, at ¶11-13, this court stated
{¶ 12} “In order for a plea to be given knowingly and
voluntarily, the trial court must follow the mandates of Crim.
R. 11(C). If a defendant's guilty plea is not voluntary and knowing,
it has been obtained in violation of due process and is void. Boykin
v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d
274.
{¶ 13} “A defendant who challenges his guilty plea on the basis
that it was not knowingly, intelligently, and voluntarily made
must show a prejudicial effect. State v. Stewart (1977), 51 Ohio
St.2d 86, 93; Crim. R. 52(A). The test is whether the plea would
have been otherwise made. Id. at 108.
{¶ 14} “A trial court must strictly comply with Crim. R. 11
as it pertains to the waiver of federal constitutional rights.
These include the right to trial by jury, the right of
confrontation, and the privilege against self-incrimination. Id.
at 243-44. However, substantial compliance with Crim. R. 11(C)
is sufficient when waiving non-constitutional rights. State v.
Nero (1990), 56 Ohio St.3d 106, 108. The non-constitutional rights
that a defendant must be informed of are the nature of the charges
with an understanding of the law in relation to the facts, the
maximum penalty, and that after entering a guilty plea or a no
contest plea, the court may proceed to judgment and sentence. Crim. 5
R. 11(C)(2)(a)(b); State v. Philpott, Cuyahoga App. No. 74392,
citing McCarthy v. U.S. (1969), 394 U.S. 459, 466, 89 S.Ct. 1166,
22 L.Ed.2d 418. Substantial compliance means that under the
totality of the circumstances, the defendant subjectively
understands the implications of his plea and the rights he is
waiving. Nero, 56 Ohio St.3d at 108.”
{¶ 15} Our review of the plea hearing demonstrates that the
trial court scrupulously complied with all of the requirements
in Crim.R. 11(C)(2), and advised Defendant about all of the
constitutional rights he would give up by pleading guilty, as well
as all of the other non-constitutional matters. This record amply
demonstrates that Defendant’s guilty plea was entered knowingly,
intelligently and voluntarily. This assignment of error lacks
arguable merit.
SECOND ASSIGNMENT OF ERROR
{¶ 16} “DID THE TRIAL COURT ERR IN SENTENCING THE APPELLANT
TO THREE (3) YEARS IMPRISONMENT BASED ON HIS CONVICTION FOR
BURGLARY, A FELONY OF THE THIRD DEGREE, IN VIOLATION OF
2911.12(A)(3) OF THE Ohio REVISED CODE.”
{¶ 17} In State v. Jeffrey Barker, Montgomery App. No. 22779,
2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 18} “The trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is 6
not required to make any findings or give its reasons for imposing
maximum, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph 7 of the
syllabus. Nevertheless, in exercising its discretion the trial
court must consider the statutory policies that apply to every
felony offense, including those set out in R.C. 2929.11 and 2929.12.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, at ¶37.
{¶ 19} “When reviewing felony sentences, an appellate court
must first determine whether the sentencing court complied with
all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the
sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912. If the sentence is not clearly and convincingly
contrary to law, the trial court’s decision in imposing the term
of imprisonment must be reviewed under an abuse of discretion
standard. Id.”
{¶ 20} There is nothing in this record which demonstrates that
in imposing its sentence the trial court failed to consider either
the purposes and principles of felony sentencing, R.C. 2929.11,
or the seriousness and recidivism factors, R.C. 2929.12. The court
considered the oral statements of counsel and Defendant at
sentencing. The three year sentence the court imposed on the 7
burglary charge is not the maximum sentence, and is well within
the authorized range of available punishments for a felony of the
third degree, which is one to five years. R.C. 2929.14(A)(3).
The court also informed Defendant about mandatory post release
control requirements and the consequences for violating post
release control. Defendant’s sentence is not clearly and
convincingly contrary to law. Kalish. Neither is there any
demonstration that the trial court’s three year sentence, which
is a mid-range sentence for burglary, constitutes an abuse of
discretion. This assignment of error lacks arguable merit.
{¶ 21} In addition to reviewing the possible issues for appeal
raised by Defendant’s appellate counsel, we have conducted an
independent review of the trial court’s proceedings and have found
no error having arguable merit. Accordingly, Defendant’s appeal
is without merit and the judgment of the trial court will be
affirmed.
DONOVAN, J. And HALL, J., concur.
Copies mailed to:
Carley J. Ingram, Esq. Jessica R. Moss, Esq. Thomas Calvert 8
Hon. Gregory F. Singer Hon. Mary Wiseman