[Cite as State v. Reed, 2015-Ohio-3534.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 14-COA-010 PHILLIP G. REED : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case No.13-CRI- 112
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 28, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAUL T. LANGE MATTHEW J. MALONE ASSISTANT PROSECUTING ATTORNEY 10 East Main Street 110 Cottage Street Ashland, OH 44805 Ashland, OH 44805 Ashland County, Case No. 14-COA-010 2
Gwin, P.J.
{¶1} Appellant, Phillip G. Reed, was indicted on a variety of offenses resulting
from his involvement in several burglaries. He negotiated a plea wherein he plead guilty
to one count of burglary which was a felony of the second degree, two counts of
burglary which were felonies of the third degree, one count of theft from an elderly
person, a felony of the fifth degree, and two counts of petty theft. Appellant was
sentenced to a term of imprisonment of six years on the felony three burglary count
along with a $2,000.00 fine, a prison term of two years on the remaining two burglary
counts as well as a $1,000.00 fine, one year in prison for theft from the elderly with a
$500.00 fine, 180 days in jail and a $500.00 fine on each of the petty theft counts. The
two third degree felony burglaries were ordered served concurrently with one another
but consecutive to the theft from the elderly sentence. The misdemeanors were
ordered served concurrently with the felony sentences. This resulted in an aggregate
prison sentence of nine years with fines totaling $5,500.00.
{¶2} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth two proposed
Assignments of Error. Appellant has not raised any additional assignments of error pro
se.
{¶3} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that Ashland County, Case No. 14-COA-010 3
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that 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
that 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.
{¶4} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738.
POTENTIAL ASSIGNMENTS OF ERROR
I.
{¶5} “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11
BEFORE ACCEPTING APPELLANT’S GUILTY PLEA.”
II.
{¶6} “WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON
APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR
AN ABUSE OF ITS DISCRETION.”
{¶7} We now will address the merits of Appellant’s potential Assignments of
Error.
{¶8} In his first potential Assignment of Error, Appellant suggests the trial court
did not comply with Crim.R. 11 in accepting Appellant’s plea. Ashland County, Case No. 14-COA-010 4
{¶9} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally, to convey certain information to such defendant, and
prohibits acceptance of a guilty plea or no contest without performing these duties.
State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶ 10. Crim.R. 11(C)(2)(a)
states the trial court must determine,
* * * that the defendant is making the plea voluntarily, with the
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.
{¶10} “Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only “substantially comply” with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–
2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio
St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
{¶11} Though failure to adequately inform a defendant of his constitutional rights
would invalidate a guilty plea under a presumption that it was entered involuntarily and
unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. [ State v.. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have Ashland County, Case No. 14-COA-010 5
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant's] plea and determine whether he
subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d
86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 2012-Ohio-4843
appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.
{¶12} A review of the plea hearing reveals the trial court advised Appellant of his
constitutional rights, the potential penalties for each offense, and the possibility of post
release control. Further, the trial court inquired as to the voluntariness of Appellant’s
plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential
assignment of error is found to be without merit.
{¶13} Appellant’s first Assignment of Error is overruled.
{¶14} In his second potential assignment of error, Appellant challenges the
sentence imposed by the trial court.
{¶15} The Ohio Supreme Court has established a two-step analysis for
reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The
first step is to “examine the sentencing court's compliance with all applicable rules and
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[Cite as State v. Reed, 2015-Ohio-3534.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 14-COA-010 PHILLIP G. REED : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case No.13-CRI- 112
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 28, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAUL T. LANGE MATTHEW J. MALONE ASSISTANT PROSECUTING ATTORNEY 10 East Main Street 110 Cottage Street Ashland, OH 44805 Ashland, OH 44805 Ashland County, Case No. 14-COA-010 2
Gwin, P.J.
{¶1} Appellant, Phillip G. Reed, was indicted on a variety of offenses resulting
from his involvement in several burglaries. He negotiated a plea wherein he plead guilty
to one count of burglary which was a felony of the second degree, two counts of
burglary which were felonies of the third degree, one count of theft from an elderly
person, a felony of the fifth degree, and two counts of petty theft. Appellant was
sentenced to a term of imprisonment of six years on the felony three burglary count
along with a $2,000.00 fine, a prison term of two years on the remaining two burglary
counts as well as a $1,000.00 fine, one year in prison for theft from the elderly with a
$500.00 fine, 180 days in jail and a $500.00 fine on each of the petty theft counts. The
two third degree felony burglaries were ordered served concurrently with one another
but consecutive to the theft from the elderly sentence. The misdemeanors were
ordered served concurrently with the felony sentences. This resulted in an aggregate
prison sentence of nine years with fines totaling $5,500.00.
{¶2} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth two proposed
Assignments of Error. Appellant has not raised any additional assignments of error pro
se.
{¶3} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that Ashland County, Case No. 14-COA-010 3
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that 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
that 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.
{¶4} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738.
POTENTIAL ASSIGNMENTS OF ERROR
I.
{¶5} “WHETHER THE TRIAL COURT COMPLIED WITH CRIMINAL RULE 11
BEFORE ACCEPTING APPELLANT’S GUILTY PLEA.”
II.
{¶6} “WHETHER THE TRIAL COURT’S SENTENCE IMPOSED ON
APPELLANT WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND/OR
AN ABUSE OF ITS DISCRETION.”
{¶7} We now will address the merits of Appellant’s potential Assignments of
Error.
{¶8} In his first potential Assignment of Error, Appellant suggests the trial court
did not comply with Crim.R. 11 in accepting Appellant’s plea. Ashland County, Case No. 14-COA-010 4
{¶9} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally, to convey certain information to such defendant, and
prohibits acceptance of a guilty plea or no contest without performing these duties.
State v. Holmes, 5th Dist. No. 09 CA 70, 2010–Ohio–428, ¶ 10. Crim.R. 11(C)(2)(a)
states the trial court must determine,
* * * that the defendant is making the plea voluntarily, with the
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.
{¶10} “Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only “substantially comply” with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011–CA–121, 2012–Ohio–
2957, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103 Ohio
St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
{¶11} Though failure to adequately inform a defendant of his constitutional rights
would invalidate a guilty plea under a presumption that it was entered involuntarily and
unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. [ State v.. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have Ashland County, Case No. 14-COA-010 5
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant's] plea and determine whether he
subjectively understood [the effect of his plea]. *3 See State v. Sarkozy, 117 Ohio St.3d
86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.” State v. Alexander, 2012-Ohio-4843
appeal not allowed, 2013-Ohio-902, 134 Ohio St. 3d 1485, 984 N.E.2d 29.
{¶12} A review of the plea hearing reveals the trial court advised Appellant of his
constitutional rights, the potential penalties for each offense, and the possibility of post
release control. Further, the trial court inquired as to the voluntariness of Appellant’s
plea of guilty. In short, the trial court complied with Crim.R. 11, therefore, this potential
assignment of error is found to be without merit.
{¶13} Appellant’s first Assignment of Error is overruled.
{¶14} In his second potential assignment of error, Appellant challenges the
sentence imposed by the trial court.
{¶15} The Ohio Supreme Court has established a two-step analysis for
reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. The
first step is to “examine the sentencing court's compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.” Id. at ¶ 4. The second step requires the trial court's
decision to be reviewed under an abuse-of-discretion standard. Id.
{¶16} We find the sentences imposed were not clearly and convincingly contrary
to law. The sentences in this case were imposed within the statutory range provided in
R.C. 2929.14. We also find the trial court made the requisite statutory findings in Ashland County, Case No. 14-COA-010 6
support of imposing consecutive sentences as required by State v. Bonnell, 140 Ohio
St. 3d 209, 2014-Ohio-3177, 16 N.E. 3d 659, ¶ 37.
{¶17} Having reviewed the sentence, sentencing factors found in R.C. 2929.12,
the facts surrounding the crimes, and Appellant’s extensive criminal history, we also find
the trial court did not abuse its discretion in imposing the sentence in this case.
{¶18} Appellant’s second proposed assignment of error is overruled.
{¶19} For these reasons, after independently reviewing the record, we agree
with counsel's conclusion that 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 Ashland County Court of
Common Pleas.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur