[Cite as State v. Perry, 2017-Ohio-944.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 15 MA 0148
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
WAYNE PERRY )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 14 CR 619
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Ross T. Smith
Huntington Bank Building
26 Market Street
Suite 610
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: March 15, 2017
[Cite as State v. Perry, 2017-Ohio-944.]
WAITE, J.
{¶1} Appellant Wayne Perry appeals from his convictions and sentence
following a Crim.R. 11 plea agreement he entered into in the Mahoning County
Common Pleas Court. Appellant's counsel filed a no merit brief requesting leave to
withdraw. A complete review of the case reveals no appealable issues. Accordingly,
appointed counsel's motion to withdraw is granted and Appellant's convictions and
sentence are affirmed.
Factual and Procedural History
{¶2} Appellant was charged with one count of receiving stolen property, a
felony of the fifth degree in violation of R.C. 2913.51(A), and one count of misuse of a
credit card, a felony of the fifth degree in violation of R.C. 2913.21(A)(1). The state
later dismissed the misuse charge.
{¶3} On April 14, 2015, the trial court held a plea hearing where Appellant
pleaded guilty to the sole charge in the indictment. The state agreed to recommend
the following sentence: community control with local incarceration, restitution, and a
no contact order with the victims. The state also agreed to stand silent as to judicial
release. On June 3, 2015, Appellant was arrested and charged with felonious
assault in Trumbull County.
{¶4} On August 3, 2015, the trial court held a sentencing hearing. Based on
Appellant’s pending criminal charge, the state changed its recommendation in this
matter to one year of incarceration and restitution. The trial court noted that
Appellant had not yet been convicted of felonious assault, but agreed with the state’s
recommendation based on Appellant’s lengthy criminal record. The court sentenced
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him to one year of incarceration and ordered him to pay restitution to the victims.
The court suspended the fines and costs. Appellant timely appeals.
No Merit Brief
{¶5} Based on a review of this matter, appellate counsel seeks to withdraw
after finding no potentially meritorious arguments for appeal. This filing is known as a
no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.E.2d 493 (1967). In our district, it is referred to as a Toney brief. See
State v. Toney, 23 Ohio App.2d 203, 262 N.E. 2d 419 (7th Dist.1970).
{¶6} In Toney, we established the procedure to be used when appellate
counsel wishes to withdraw from a case deemed a frivolous appeal.
3. Where a 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.
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.
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
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arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
***
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.
{¶7} On February 22, 2016, appellate counsel filed the no merit brief in this
matter. On March 2, 2016, we filed a judgment entry informing Appellant that his
counsel had filed a no merit brief and giving him thirty days to file his own brief.
Appellant failed to file a brief in this matter. Accordingly, we must independently
examine the record to determine whether there are any potentially meritorious issues
in this matter.
Plea Hearing
{¶8} A plea of guilty or no contest must be made knowingly, intelligently and
voluntarily for it to be valid and enforceable. State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. In order to ensure that a plea in a felony
case is knowing, intelligent and voluntary, Crim.R. 11(C)(2) requires the trial judge to
address the defendant personally to review the rights that are being waived and to
discuss the consequences of the plea.
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{¶9} Crim.R. 11(C)(2)(c) requires the court to review five constitutional rights
that are waived when entering a guilty or no contest plea in a felony case: the right
to a jury trial, the right to confront one's accusers, the privilege against compulsory
self-incrimination, the right to compulsory process to obtain witnesses, and the right
to require the state to prove guilt beyond a reasonable doubt. State v. Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. A trial court must strictly
comply with Crim.R. 11(C)(2)(c) when advising the defendant of the constitutional
rights that are being waived in entering a felony plea. Id. at syllabus. Prejudice is
presumed if the court fails to inform the defendant of any of the constitutional rights
listed in Crim.R. 11(C)(2)(c). Id. at ¶ 29.
{¶10} A defendant must also be informed of his nonconstitutional rights prior
to entering a guilty plea, which include an understanding of the nature of the charges
with an explanation 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.R. 11(C)(2)(a)(b). The nonconstitutional requirements of
Crim.R. 11 are subject to review for substantial compliance rather than strict
compliance. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51,
¶ 11-12. “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). Further,
“failure to comply with nonconstitutional rights will not invalidate a plea unless the
defendant thereby suffered prejudice.” Griggs, supra, at ¶ 12.
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{¶11} Here, the record demonstrates that the trial court strictly complied when
advising Appellant of his constitutional rights. In his written plea agreement and at
the plea hearing, Appellant was advised that he would be giving up his right to appeal
the following rights: (1) the right to a jury trial; (2) the right to confront the witnesses
against him; (3) the right to obtain witnesses in his favor; (4) the state's burden to
prove the case against him beyond a reasonable doubt at trial; and (5) the right
against self-incrimination. (4/14/15 Plea Hrg. Tr., pp. 4-6.) Appellant indicated on the
record that he understood each of these rights and that he would waive these as a
result of his plea. The record is devoid of any evidence that Appellant was impaired
in any way from understanding the process.
{¶12} The record similarly demonstrates that the trial court at least
substantially complied in advising Appellant of his nonconstitutional rights. He was
advised of the charges against him, which included one count of receiving stolen
property. He was informed that he would be subject to a maximum penalty of one
year in prison and a fine of $2,500. The trial court advised him that he was eligible
for community control sanctions. The court explained that, on release from prison, he
could be subject to a three-year period of postrelease control. The court further
explained the consequences of violating postrelease control. Finally, he was
informed that the court could proceed directly to sentencing after accepting his plea.
Appellant acknowledged that he would be giving up these rights as a result of his
plea. Again, there is nothing within the record to suggest Appellant was unable to
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understand any of this discussion. Accordingly, there are no appealable issues
regarding Appellant’s guilty plea.
Sentencing
{¶13} An appellate court is permitted to review a felony sentence to determine
if it is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 23. Pursuant to Marcum, “an appellate court may vacate or modify
any sentence that is not clearly and convincingly contrary to law only if the appellate
court finds by clear and convincing evidence that the record does not support the
sentence.” Id.
{¶14} When determining a sentence, a trial court must consider the purposes
and principles of sentencing in accordance with R.C. 2929.11, the seriousness and
recidivism factors within R.C. 2929.12, and the proper statutory ranges set forth
within R.C. 2929.14.
{¶15} While the trial court expressly stated that it had considered the
principles of R.C. 2929.11 and the seriousness and recidivism factors of R.C.
2929.12 within its sentencing entry, it did not do so at the sentencing hearing.
However, such failure is not necessarily error.
[R]eversal is not automatic where the sentencing court fails to provide
reasons for its sentence or fails to state at sentencing or in a form
judgment entry, “after considering R.C. 2929.11 and 2929.12”. We
return to the Adams rule that a silent record raises the rebuttable
presumption that the sentencing court considered the proper factors.
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We hereby adopt the Second District's statement that where the trial
court's sentence falls within the statutory limits, “it will be presumed that
the trial court considered the relevant factors in the absence of an
affirmative showing that it failed to do so” unless the sentence is
“strikingly inconsistent” with the applicable factors. (Emphasis deleted.)
State v. Grillon, 7th Dist. No. 10 CO 30, 2012-Ohio-893, ¶ 131 citing State v. James,
7th Dist. No. 07-CO-47, 2009-Ohio-4392, ¶ 50.
{¶16} Accordingly, we begin with a presumption that the trial court considered
R.C. 2929.11 and R.C. 2929.12, even in the absence of specific language. Although
there is no reference to either statute within the sentencing hearing transcripts, there
is nothing within the record to suggest that the court failed to consider these statutes.
At the sentencing hearing, the trial court stated: “quite frankly, looking at his juvenile
and adult convictions I don’t believe that [Appellant] is amenable to a community
control sanction.” (8/3/15 Sent. Hrg. Tr., p. 6.) It is evident from this statement that
the trial court considered the appropriate statutes.
{¶17} As to the statutory guidelines, the maximum penalty for a felony of the
fifth degree is one year of incarceration. As Appellant was sentenced to one year of
incarceration, the trial court's sentence is within the permissible statutory range.
There is nothing within this record to provide clear and convincing evidence that the
record does not support the sentence. As such, there are no appealable issues
concerning Appellant's sentence.
Conclusion
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{¶18} Appellate counsel seeks to withdraw as a review of the record did not
reveal any potentially meritorious arguments. For the reasons provided, this record
reveals there are no potentially meritorious arguments. Accordingly, counsel’s
motion to withdraw is granted and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.
State v. Perry
Combined Opinion