State v. Wheeler

2013 Ohio 3387

Opinion

[Cite as State v. Wheeler, 2013-Ohio-3387.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25633 Plaintiff-Appellee : : Trial Court Case No. 2012-CR-3650 v. : : ANDREW T. WHEELER : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 2nd day of August, 2013.

...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LUCAS WILDER, Atty. Reg. #0074057, 120 West Second Street, 400 Liberty Tower, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

FAIN, P.J.

{¶ 1} Defendant-appellant Andrew Wheeler appeals from his conviction and 2

sentence, following a guilty plea, for one count of Rape (impaired victim), in violation of R.C.

2907.02(A)(1)(c). The mandatory three-year sentence imposed was agreed upon by the

parties.

{¶ 2} Wheeler’s assigned appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he could find

no potential assignments of error having arguable merit. By entry herein filed May 22, 2013,

we afforded Wheeler the opportunity to file his own, pro se brief. He has not done so.

{¶ 3} In his brief, Wheeler’s counsel states:

There were no pretrial motions or hearings. This matter did not

proceed to trial. The parties jointly agreed that Mr. Wheeler would plead

guilty to rape and receive three years in prison (the minimum on a first degree

felony). The trial court abided by the parties’ agreement. Therefore, his

sentence is not reviewable under O.R.C. §2953.08(D)(1). The trial court orally

notified Mr. Wheeler it would impose costs. Tr., p. 5; State v. Joseph, 125

Ohio St.3d 76 [2010-Ohio-954, 926 N.E.2d 278].

Counsel has examined whether the trial court conducted a proper Rule

11 plea. Counsel found no issue with the taking of the plea. With regard to

sentencing, however, the trial court initially erred when it advised Mr. Wheeler

he would be subject to post-release control for only three years. Tr., p. 11. A

first degree felony rape carries a post-release control option of five years.

O.R.C. §2967.28(B)(1). Nonetheless, the trial court caught its error and

corrected it before sentencing was completed. Mr. Wheeler was advised he 3

would be subject to the five years post release control. Tr., p. 14.

Counsel also considered issues presented by Mr. Wheeler via letter. One of the issues

brought to counsel’s attention was the possibility that Mr. Wheeler was intoxicated when he

wrote an incriminating statement. Unfortunately, counsel’s review on appeal is limited to

matters in the record. No motion to suppress was filed to argue on this issue. Therefore, this

issue is non-reviewable.

A second issue raised was whether Mr. Wheeler was correctly explained “mandatory

time.” Pursuant to O.R.C. §2929.13(F)(2), prison time for a rape (a first degree felony) is

mandatory. At sentencing, the trial court did not give Mr. Wheeler a treatise on what mandatory

time meant but did give him a CliffsNotes version. The trial court noted, “[A]nd it’s mandatory,

so it’s not reduced by judicial release, earned credit or furlough.” Tr., p. 6. While brief, the

explanation was sufficiently clear as to what mandatory time means.

{¶ 4} Based upon our review of the entire record, we find no flaws in appellate counsel’s factual or

legal conclusions. We have performed our duty, under Anders v. California, supra, to review the record,

including the transcript of the proceeding in which Wheeler pled guilty and was sentenced, independently. We

have found no potential assignments of error having arguable merit. The judgment of the trial court is

Affirmed.

FROELICH and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck Carley J. Ingram Lucas W. Wilder Andrew T. Wheeler 4

Hon. Barbara P. Gorman