[Cite as State v. Utley, 2017-Ohio-6920.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-16-1024 L-16-1025 Appellee L-16-1026
v. Trial Court Nos. CR0201501399 CR0201502311 Darian Lamont Utley CR0201502154
Appellant DECISION AND JUDGMENT
Decided: July 21, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Joanna M. Orth, for appellant.
PIETRYKOWSKI, J.
{¶ 1} This is a consolidated Anders appeal. Appellant, Darian Lamont Utley,
appeals the judgments of the Lucas County Court of Common Pleas convicting him
pursuant to a plea agreement of: one count of burglary in violation of R.C. 2911.12(A)(2) and (D), a felony of the second degree, in case No. CR0201501399; two
counts of burglary in violation of R.C. 2911.12(A)(3) and (D), felonies of the third
degree, in case No. CR0201502154; and one count of burglary in violation of R.C.
2911.12(A)(2) and (D), a felony of the second degree, in case No. CR0201502311. The
trial court sentenced appellant to the agreed-upon cumulative sentence of ten years in
prison. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} Appellant was indicted by the Lucas County Grand Jury in four separate
cases on a total of four counts of burglary, felonies of the second degree, one count of
receiving stolen property, a felony of the fifth degree, and 21 counts of receiving stolen
property, misdemeanors of the first degree. On December 7, 2015, appellant withdrew
his initial pleas of not guilty, and entered a plea pursuant to North Carolina v. Alford to
two counts of burglary in violation of R.C. 2911.12(A)(2) and (D), felonies of the second
degree, and two amended counts of burglary in violation of R.C. 2911.12(A)(3) and (D),
felonies of the third degree. As part of the plea agreement, the remaining charges were
dismissed. In addition, the parties agreed that appellant would receive a total prison
sentence of ten years.
{¶ 3} The trial court accepted appellant’s plea and found him guilty. The matter
was continued for a sentencing hearing on December 21, 2015. At the sentencing
hearing, the trial court imposed eight-year prison sentences on each of the second-degree
felony burglaries, and ordered that they run concurrent with one another. The trial court
2. also imposed 24-month prison sentences on each of the third-degree felony burglaries,
also to run concurrent with one another, but consecutive to the eight-year prison
sentences for the total agreed upon prison term of ten years. In ordering the sentences to
be served consecutively, the trial court made the appropriate findings under R.C.
2929.14(C)(4).
II. Anders Requirements
{¶ 4} Appellant timely appealed his conviction. Subsequently, appointed counsel
for appellant filed a brief and requested leave to withdraw pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under Anders, if
counsel, after a conscientious examination of the case, determines it to be wholly
frivolous, counsel should so advise the court and request permission to withdraw. Id. at
744. This request, however, must be accompanied by a brief identifying anything in the
record that could arguably support the appeal. Id. Counsel must also furnish the client
with a copy of the brief and request to withdraw and allow the client sufficient time to
raise additional matters. Id. Once these requirements have been satisfied, the appellate
court must then conduct a full examination of the proceedings held below to determine if
the appeal is indeed frivolous. If the appellate court determines that the appeal is
frivolous, it may grant counsel’s request to withdraw and dismiss the appeal without
violating constitutional requirements, or it may proceed to a decision on the merits if state
law so requires. Id.
3. III. Potential Assignments of Error
{¶ 5} In her Anders brief, counsel has assigned the following potential errors for
our review:
1. Defendant/Appellant’s plea should be set aside insofar as it was
not made knowingly, voluntarily and intelligently.
2. Defendant/Appellant’s sentence should be vacated as it is
excessive, unreasonable and contrary to law.
{¶ 6} Appellant has not filed a pro se brief or otherwise raised any additional
matters.
IV. Analysis
{¶ 7} Regarding counsel’s first proposed assignment of error, Crim.R. 11(C) sets
forth the procedure that the trial court must follow in accepting a plea of guilty or no
contest. The rule provides:
(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 personally and doing all of the
following:
(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
4. probation or for the imposition of community control sanctions at the
sentencing hearing.
(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.
(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.
Crim.R. 11(C).
{¶ 8} The underlying purpose of Crim.R. 11(C)(2) is to ensure that the defendant
has the information needed to make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115
(1981). With respect to the constitutional rights enunciated in Crim.R. 11(C)(2)(c), a trial
court must strictly comply with the dictates of that rule. State v. Colbert, 71 Ohio App.3d
734, 737, 595 N.E.2d 401 (11th Dist.1991). A trial court, however, need not use the
exact language found in that rule when informing a defendant of his constitutional rights.
Ballard at paragraph two of the syllabus. Rather, a trial court must explain those rights in
a manner reasonably intelligible to the defendant. Id.
5. {¶ 9} For non-constitutional rights, strict adherence to Crim.R. 11(C) is not
required. Rather, the trial court must substantially comply with the notice provisions.
State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977). “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.” State v.
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[Cite as State v. Utley, 2017-Ohio-6920.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-16-1024 L-16-1025 Appellee L-16-1026
v. Trial Court Nos. CR0201501399 CR0201502311 Darian Lamont Utley CR0201502154
Appellant DECISION AND JUDGMENT
Decided: July 21, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Joanna M. Orth, for appellant.
PIETRYKOWSKI, J.
{¶ 1} This is a consolidated Anders appeal. Appellant, Darian Lamont Utley,
appeals the judgments of the Lucas County Court of Common Pleas convicting him
pursuant to a plea agreement of: one count of burglary in violation of R.C. 2911.12(A)(2) and (D), a felony of the second degree, in case No. CR0201501399; two
counts of burglary in violation of R.C. 2911.12(A)(3) and (D), felonies of the third
degree, in case No. CR0201502154; and one count of burglary in violation of R.C.
2911.12(A)(2) and (D), a felony of the second degree, in case No. CR0201502311. The
trial court sentenced appellant to the agreed-upon cumulative sentence of ten years in
prison. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} Appellant was indicted by the Lucas County Grand Jury in four separate
cases on a total of four counts of burglary, felonies of the second degree, one count of
receiving stolen property, a felony of the fifth degree, and 21 counts of receiving stolen
property, misdemeanors of the first degree. On December 7, 2015, appellant withdrew
his initial pleas of not guilty, and entered a plea pursuant to North Carolina v. Alford to
two counts of burglary in violation of R.C. 2911.12(A)(2) and (D), felonies of the second
degree, and two amended counts of burglary in violation of R.C. 2911.12(A)(3) and (D),
felonies of the third degree. As part of the plea agreement, the remaining charges were
dismissed. In addition, the parties agreed that appellant would receive a total prison
sentence of ten years.
{¶ 3} The trial court accepted appellant’s plea and found him guilty. The matter
was continued for a sentencing hearing on December 21, 2015. At the sentencing
hearing, the trial court imposed eight-year prison sentences on each of the second-degree
felony burglaries, and ordered that they run concurrent with one another. The trial court
2. also imposed 24-month prison sentences on each of the third-degree felony burglaries,
also to run concurrent with one another, but consecutive to the eight-year prison
sentences for the total agreed upon prison term of ten years. In ordering the sentences to
be served consecutively, the trial court made the appropriate findings under R.C.
2929.14(C)(4).
II. Anders Requirements
{¶ 4} Appellant timely appealed his conviction. Subsequently, appointed counsel
for appellant filed a brief and requested leave to withdraw pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under Anders, if
counsel, after a conscientious examination of the case, determines it to be wholly
frivolous, counsel should so advise the court and request permission to withdraw. Id. at
744. This request, however, must be accompanied by a brief identifying anything in the
record that could arguably support the appeal. Id. Counsel must also furnish the client
with a copy of the brief and request to withdraw and allow the client sufficient time to
raise additional matters. Id. Once these requirements have been satisfied, the appellate
court must then conduct a full examination of the proceedings held below to determine if
the appeal is indeed frivolous. If the appellate court determines that the appeal is
frivolous, it may grant counsel’s request to withdraw and dismiss the appeal without
violating constitutional requirements, or it may proceed to a decision on the merits if state
law so requires. Id.
3. III. Potential Assignments of Error
{¶ 5} In her Anders brief, counsel has assigned the following potential errors for
our review:
1. Defendant/Appellant’s plea should be set aside insofar as it was
not made knowingly, voluntarily and intelligently.
2. Defendant/Appellant’s sentence should be vacated as it is
excessive, unreasonable and contrary to law.
{¶ 6} Appellant has not filed a pro se brief or otherwise raised any additional
matters.
IV. Analysis
{¶ 7} Regarding counsel’s first proposed assignment of error, Crim.R. 11(C) sets
forth the procedure that the trial court must follow in accepting a plea of guilty or no
contest. The rule provides:
(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 personally and doing all of the
following:
(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
4. probation or for the imposition of community control sanctions at the
sentencing hearing.
(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.
(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.
Crim.R. 11(C).
{¶ 8} The underlying purpose of Crim.R. 11(C)(2) is to ensure that the defendant
has the information needed to make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115
(1981). With respect to the constitutional rights enunciated in Crim.R. 11(C)(2)(c), a trial
court must strictly comply with the dictates of that rule. State v. Colbert, 71 Ohio App.3d
734, 737, 595 N.E.2d 401 (11th Dist.1991). A trial court, however, need not use the
exact language found in that rule when informing a defendant of his constitutional rights.
Ballard at paragraph two of the syllabus. Rather, a trial court must explain those rights in
a manner reasonably intelligible to the defendant. Id.
5. {¶ 9} For non-constitutional rights, strict adherence to Crim.R. 11(C) is not
required. Rather, the trial court must substantially comply with the notice provisions.
State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977). “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.” State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990).
{¶ 10} Appellate counsel observes, and we agree, that the trial court fully
complied with Crim.R. 11(C) when it accepted appellant’s guilty plea. Appellant was
informed of his right to trial by jury, right to confront and cross-examine witnesses, right
to compulsory process, the right to proof beyond a reasonable doubt, the right to remain
silent, and his right to a limited appeal.
{¶ 11} Appellant was also informed of the nature of the charges to which he was
admitting, the maximum penalties involved, and postrelease control requirements. The
court further confirmed that no promises or threats were made to get appellant to enter his
plea, that he was satisfied with counsel’s advice and representation, and that appellant
believed that entering the plea was in his best interest.
{¶ 12} Accordingly, we find the first potential assignment of error to be without
merit.
{¶ 13} Appellant’s counsel’s second potential assignment of error argues that his
sentence is unreasonably long and contrary to law.
6. {¶ 14} A defendant’s right to appeal a sentence is based on specific grounds in
R.C. 2953.08. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
¶ 10. However, R.C. 2953.08(D)(1) provides an exception to a defendant’s ability to
appeal. Underwood at ¶ 14. That section provides, “A sentence imposed upon a
defendant is not subject to review under this section if the sentence is authorized by law,
has been recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” R.C. 2953.08(D)(1). “[A] sentence is ‘authorized by
law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports
with all mandatory sentencing provisions.” Underwood at ¶ 20. Upon our review of the
record and the sentencing entries, we find that the trial court complied with the
mandatory sentencing provisions when it imposed the jointly recommended sentence.
Therefore, appellant is precluded from challenging his agreed-upon sentence on appeal.
{¶ 15} Accordingly, we find the second potential assignment of error to be without
V. Conclusion
{¶ 16} We have conducted an independent review of the record, as required by
Anders, and find no issue of arguable merit for appeal. Therefore, counsel’s motion to
withdraw is hereby granted.
7. {¶ 17} For the foregoing reasons, the judgments of the Lucas County Court of
Common Pleas are affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
{¶ 18} The clerk is ordered to serve all parties with notice of this decision.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
8.