State v. Martin

[Cite as State v. Martin, 2011-Ohio-6408.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
) CASE NO. 11 MA 2
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
DUSTIN MARTIN, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10CR104.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Attorney Edward Czopur
42 North Phelps Street
Youngstown, Ohio 44503

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

Dated: December 7, 2011
VUKOVICH, J.

{¶ 1} Defendant-appellant Dustin Martin appeals from his conviction and
sentence in the Mahoning County Common Pleas Court for five counts of burglary and
one count of attempted burglary. Appointed appellate counsel filed a no merit brief
and requested leave to withdraw. A review of the case file reveals that there are no
appealable issues. Therefore, the judgment of the trial court is hereby affirmed and
counsel’s motion to withdraw is granted.
STATEMENT OF THE CASE
{¶ 2} On January 28, 2010 Martin was indicted for five counts of burglary,
violations of R.C. 2911.12(A)(2)(C), second-degree felonies and one count of
attempted burglary, in violation of R.C. 2911.12(A)(1)(B) and R.C. 2923.02(A), a third-
degree felony. Martin waived his right to a speedy trial. Following discovery, the
parties entered into a plea agreement. At the Crim.R. 11 plea hearing, Martin pled
guilty to charges in the indictment; the guilty pleas were accepted by the court.
08/30/10 J.E. Sentencing occurred months later. He received an aggregate sentence
of four years; the trial court sentenced him to four years in prison on each of the
charges and ordered those sentences to run concurrent with each other. 12/15/10
J.E.
ANALYSIS
{¶ 3} When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no merit brief or an
Anders brief. Anders v. California (1967), 386 U.S. 738. In this district, it has also
been called a Toney brief. State v. Toney (1970), 23 Ohio App.2d 203.
{¶ 4} In Toney, this court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
{¶ 5} “3. Where court-appointed counsel, with long and extensive experience
in criminal practice, concludes that the indigent's appeal is frivolous and that there is
no assignment of error which could be arguably supported on appeal, he should so
advise the appointing court by brief and request that he be permitted to withdraw as
counsel of record.
{¶ 6} “4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses, pro se.
{¶ 7} “5. It is the duty of the Court of Appeals to fully examine the proceedings
in the trial court, the brief of appointed counsel, the arguments pro se of the indigent,
and then determine whether or not the appeal is wholly frivolous.
{¶ 8} “* * *
{¶ 9} “7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of
record should be allowed, and the judgment of the trial court should be affirmed.” Id.
at syllabus.
{¶ 10} The no merit brief was filed by counsel on April 27, 2011. On May 6,
2011, this court informed Martin of counsel's no merit brief and granted him 30 days to
file his own written brief. 05/06/11 J.E. Martin has not filed a pro se brief. Thus, we
will proceed to independently examine the record to determine whether the appeal is
frivolous.
{¶ 11} Counsel for Martin has correctly identified two areas that a potential
argument on appeal could be made: 1) the Crim.R. 11 guilty plea colloquy; and, 2)
sentencing.
Crim.R. 11 Plea Colloquy
{¶ 12} Crim.R. 11(C) provides that a trial court must make certain advisements
prior to accepting a defendant's guilty plea to ensure that the plea is entered into
knowingly, intelligently and voluntarily. These advisements are typically divided into
constitutional rights and nonconstitutional rights.
{¶ 13} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses
against him; 3) the compulsory process for obtaining witnesses in his favor; 4) that the
state must prove the defendant's guilt beyond a reasonable doubt at trial, and 5) that
the defendant cannot be compelled to testify against himself. Crim.R. 11(C)(2)(c);
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶19-21. The trial court must
strictly comply with these requirements; if it fails to strictly comply, the defendant's plea
is invalid. Veney, supra, at ¶31; State v. Ballard (1981), 66 Ohio St.2d 473, 477.
{¶ 14} The nonconstitutional rights are that: 1) the defendant must be informed
of the nature of the charges; 2) the defendant must be informed of the maximum
penalty involved, which includes an advisement on postrelease control, if it is
applicable; 3) the defendant must be informed, if applicable, that he is not eligible for
probation or the imposition of community control sanctions, and 4) the defendant must
be informed that after entering a guilty plea or a no contest plea, the court may
proceed to judgment and sentence. Crim.R. 11(C)(2)(a)(b); Veney, supra, at ¶10-13;
State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶19-26, (indicating that
postrelease control is a nonconstitutional advisement); State v. Aleshire, 5th Dist.
No.2007-CA-1, 2008-Ohio-5688, ¶8 (stating that postrelease control is a part of the
maximum penalty).
{¶ 15} For the nonconstitutional rights, the trial court must substantially comply
with Crim.R. 11's mandates. State v. Nero (1990), 56 Ohio St.3d 106, 108.
“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.” Veney, supra, at ¶15 quoting Nero, supra at 108. Furthermore, a defendant
who challenges his guilty plea on the basis that the advisement for the
nonconstitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must
also show a prejudicial effect, meaning the plea would not have been otherwise
entered. Veney, supra, at ¶15 citing Nero, supra, at 108.
{¶ 16} The trial court's advisement on the constitutional rights strictly complied
with Crim.R. 11(C)(2)(c). Martin was informed and acknowledged that he understood
that by pleading guilty he was waiving his right to a jury trial, to confront witnesses
against him, to subpoena witnesses in his favor and to have the state prove at trial
each and every element of the offenses by proof beyond a reasonable doubt. 08/26/10
Plea Tr. 4-5. Lastly, as to the constitutional rights, he was informed and indicated that
he understood that if he went to trial he could not be compelled to testify against
himself and that by pleading guilty he was giving up that right. 08/26/10 Plea Tr. 5-6.
 {¶ 17} Likewise, the trial court substantially complied with Crim.R. 11(C) in its
advisement of the nonconstitutional rights. Martin was advised of the charges against
him, burglary and attempted burglary. 08/26/10 Plea Tr. 3-4. He was also correctly
advised that the maximum prison penalty for the crimes charged is an aggregate
sentence of 45 years; eight years for each of the five burglary charges and five years
for the attempted burglary charge. 08/26/10 Plea Tr. 6-7. See, also, R.C.
2929.14(A)(2) (stating the maximum term for a second-degree felony is eight years);
R.C. 2929.14(A)(3) (stating the maximum penalty for a third-degree felony is five
years). He was adequately informed that his maximum sentence includes three years
of postrelease control following the prison term. 08/26/10 Plea Tr. 7-8. See, also,
R.C. 2967.28 (indicating three year term of post release control for second-degree
felonies). As to the maximum fines, he was correctly advised that he could be fined
$15,000 for each of the burglary charges and $10,000 for the attempted burglary
charge. 08/26/10 Plea Tr. 6-7. R.C. 2929.18(A)(3)(b), (c) (stating the maximum fine
for a second-degree felony is $15,000 and the maximum fine for a third-degree felony
is $10,000). The trial court then told him that after accepting the plea it was permitted
to proceed directly to sentencing. 08/26/10 Plea Tr. 6. Lastly, as there was no
mandatory prison term for the charges, he was eligible for community control. The trial
court did not advise him of his eligibility. However, that does not result in error
because Crim.R. 11 requires an advisement only when the offender is not eligible for
community control.
{¶ 18} The only possible problem with the advisements as to the
nonconstitutional rights is the trial court’s statement that the maximum total amount
Martin could be fined was $130,000. 08/26/10 Plea Tr. 7. As explained above, the
trial court correctly advised Martin that the maximum fine for each of the second-
degree burglary charges is $15,000 and the maximum fine for the third-degree
attempted burglary charge is $10,000. Thus, for the five burglary charges it would
amount to a $75,000 fine. Add in the maximum fine for the attempted burglary charge
it would equal an $80,000 fine. As such the trial court’s statement that it would be a
$130,000 fine was incorrect. However, the advisement as a whole constituted
substantial compliance. Although the trial court’s math was incorrect, it correctly
advised Martin the maximum fines for each charge. Regardless, Martin’s indigency
was a matter of record prior to the sentencing and thus, as the trial court did not issue
a fine, there is no resulting prejudice from the trial court’s incorrect mathematical
computation. 12/15/10 Sentencing Tr. 13.
{¶ 19} Consequently, considering all the above, we find that the plea colloquy
complied with Crim.R. 11(C) and, as such, the plea was intelligently, voluntarily, and
knowingly entered. There are no appealable issues concerning the guilty plea.
Sentencing
{¶ 20} Our review of felony sentences is a limited, two-fold approach, as
outlined in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912,
¶26. First, we must examine the sentence to determine if it is “clearly and convincingly
contrary to law.” Id. In examining “all applicable rules and statutes,” the sentencing
court must consider R.C. 2929.11 and R.C. 2929.12. Id. at ¶13–14. If the sentence is
clearly and convincingly not contrary to law, the court's discretion in selecting a
sentence within the permissible statutory range is subject to review for abuse of
discretion. Id. at ¶17. Thus, we apply an abuse of discretion standard to determine
whether the sentence satisfies R.C. 2929.11 and R.C. 2929.12. Id. at ¶17.
{¶ 21} Martin was convicted of five second-degree felonies and one third-
degree felony. The applicable sentences for a second-degree felony are two, three,
four, five, six, seven or eight years. R.C. 2929.14(A)(2). The applicable sentences for
a third-degree felony are one, two, three, four, or five years. R.C. 2929.14(A)(3).
Martin was sentenced to four years for each of the second-degree felonies and for the
third-degree felony. Thus, Martin’s sentence was within the statutory range.
{¶ 22} Furthermore, in the trial court’s sentencing judgment entry it stated:
{¶ 23} “The Court considered the record, pre-sentence investigation report, oral
statements and the principles and purposes of sentencing under Ohio Revised Code
§2929.11, and has balanced the seriousness and recidivism factors under Ohio
Revised Code §2929.12.” 12/20/10 J.E.
{¶ 24} Accordingly, as the sentence was within the applicable range and the
trial court considered the applicable statutes, the sentence is not contrary to law. Our
analysis now turns to whether the sentence amounted to an abuse of discretion.
 {¶ 25} The trial court only mentions R.C. 2929.11 and R.C. 2929.12 in the
judgment entry and does not engage in an analysis of how those statutes apply to the
facts in this case. Furthermore, the court does not mention those statutes at the
sentencing hearing. However, there is no requirement for the trial court to provide
reasons on the record as to how the factors in those statutes apply to the case. All
that is required is for the trial court to consider those statutes in sentencing. “A silent
record raises a rebuttable presumption that the sentencing considered the statutory
sentencing criteria.” State v. Ballard, 7th Dist. No. 08CO13, 2009–Ohio–5472, ¶71,
citing State v. James, 7th Dist. No. 07CO47, 2009–Ohio–4392, ¶50. Thus, a rote
recitation spoken by the trial court judge that it considered R.C. 2929.11 and R.C.
2929.12 without providing reasons, such as was done in this case, satisfies the
consideration requirement and raises a rebuttable presumption that the court followed
the statutes. State v. Arnett (2000), 88 Ohio St.3d 208, 215. See also, Kalish, supra,
¶18, fn. 4.
{¶ 26} Martin cannot overcome the rebuttable presumption. The record clearly
discloses that the PSI (Presentence Investigation) report recommended a prison term.
12/15/10 Sentencing Tr. 8. Likewise, the trial court found that community control
sanctions were not warranted. Days prior to entering the guilty plea, Martin was
released on bond to CCA (Community Corrections Association). 08/26/10 J.E. In
October 2010, the bond was amended further to allow him to conduct a job search.
10/20/10 J.E. However, in November, the state moved to revoke the bond because
Martin had continually violated the rules and regulations of CCA; the motion was
granted. 11/09/10 J.E. The report from CCA is included in the record and it discloses
that from September 2010 through November 2010 he had 15 infractions. At trial, the
trial court indicated that it reviewed that report and the PSI in determining the
appropriate sentence.
{¶ 27} “All right. Well, I have the defendant’s presentence investigation, I’ve
reviewed it. I’ve also reviewed the report from CCA. And regardless of what the
situation was or how it may have developed, there’s no excuse for all the violations
that were filed, the date and the times spread out over almost a two-month period of
time. Insubordination, the whole route.” 12/15/10 Sentencing Tr. 12.
 {¶ 28} Consequently, it can be gleaned from the above that the trial court was
considering the overriding purposes of felony sentencing, R.C. 2929.11. Furthermore,
the PSI indicates that Martin has a lengthy criminal record. Thus, the trial court could
legitimately find that he is likely to recidivate, a R.C. 2929.12 factor. As such, we
cannot find that the trial court abused its discretion in sentencing Martin to an
aggregate sentence of four years for the five burglary and one attempted burglary
convictions.
CONCLUSION
{¶ 29} For the foregoing reasons, the judgment of the trial court is hereby
affirmed and counsel’s motion to withdraw is granted.

Donofrio, J., concurs.
DeGenaro, J., concurs.