[Cite as State v. Jones, 2017-Ohio-9067.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 16 BE 0051
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ANTONIO DONTA JONES )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Belmont County,
Ohio
Case No. 16 CR 3
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Daniel P. Fry
Belmont County Prosecutor
147-A West Main Street
St. Clairsville, Ohio 43950
No Brief Filed
For Defendant-Appellant: Atty. Anthony J. Farris
860 Boardman-Canfield Rd.
Suite 204
Youngstown, Ohio 44512
Antonio Donta Jones, Pro se
#A729000
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724
JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
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Dated: December 15, 2017
[Cite as State v. Jones, 2017-Ohio-9067.]
WAITE, J.
{¶1} Appellant Antonio Donta Jones appeals a September 22, 2016
Mahoning County Common Pleas Court decision finding him guilty of involuntary
manslaughter. Appellant's counsel filed a no merit brief requesting leave to withdraw.
A complete review of the case reveals no potentially meritorious issues. Accordingly,
appointed counsel's motion to withdraw is granted and the judgment of the trial court
is affirmed.
Factual and Procedural History
{¶2} This case stems from an incident that occurred on November 19, 2015.
Appellant and his codefendants entered an apartment in an attempt to locate the
victim in this case. However, the men entered the wrong apartment before realizing
their mistake. They eventually found the victim’s apartment and Appellant physically
confronted the victim. The encounter escalated, and one of Appellant’s
codefendants shot and killed the victim. Appellant fled separately from his
codefendants.
{¶3} On April 21, 2016, Appellant was indicted on one count of aggravated
murder in violation of R.C. 2903.01(A), one count of aggravated murder in violation of
R.C. 2903.01(B), and two counts of aggravated burglary, a felony of the first degree
in violation of R.C. 2911.11(A)(2). One of the burglary counts arose from the
entrance into the first apartment and the second from the entrance into the victim’s
apartment.
{¶4} On August 16, 2016, Appellant entered an Alford plea in accordance
with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In
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accordance with the plea agreement, all four counts in the indictment were amended
into a sole charge of involuntary manslaughter, a felony of the first degree in violation
of R.C. 2903.04(A). The state agreed to stand silent at sentencing.
{¶5} On September 19, 2016, the trial court held a sentencing hearing where
the court sentenced Appellant to ten years of incarceration. The trial court also
imposed a mandatory postrelease control period of five years. This timely appeal
followed.
No Merit Brief
{¶6} 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 this 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).
{¶7} 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.
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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
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.
{¶8} On March 24, 2017, appellate counsel filed the no merit brief in this
matter. On April 5, 2017, 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 filed a pro se brief on April 24, 2017. Accordingly, we must independently
examine the record to determine whether there are any potentially meritorious issues
in this matter. Appellate counsel asserts that no potentially meritorious issues exist,
however, suggested that Appellant’s best arguments involved his Alford plea and his
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sentence. In Appellant’s brief, he asks to be resentenced on the basis that he
received ten years of incarceration compared to a codefendant, who received only six
months of incarceration.
Alford Plea
{¶9} 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.
{¶10} 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.
{¶11} 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
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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.
{¶12} Regarding Appellant’s constitutional rights, in his written plea
agreement and at the plea hearing he was advised that he would be giving up his
right to appeal the following: (1) the right to a jury trial where the state would hold the
burden of proving each element against him beyond a reasonable doubt, (2) the right
to confront witnesses against him, (3) the right to subpoena witnesses and compel
their attendance at trial, and (4) the right against self-incrimination. (8/16/16 Plea
Hrg. Tr., pp. 3, 6, 9-12.) As such, we find that the trial court strictly complied with
advising Appellant of his constitutional rights.
{¶13} As to Appellant’s nonconstitutional rights, the trial court advised him of
the nature of the charges against him, involuntary manslaughter, and the maximum
penalty, which was eleven years of incarceration, a fine of $20,000, and a five-year
postrelease control period. However, the court did not inform Appellant that it could
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immediately proceed to sentencing if it accepted his plea. The failure to notify a
defendant of a nonconstitutional right will only invalidate a plea when the defendant
has suffered prejudice. Griggs, supra, at ¶ 12. Here, Appellant does not argue that
he was prejudiced by the court’s failure to inform him that it could immediately
proceed to sentencing. Further, the court did not immediately proceed to sentencing
and instead ordered a PSI and an evaluation for the Eastern Ohio Corrections
Center. Thus, the record does not reflect that Appellant suffered prejudice. As such,
the trial court substantially complied with advising Appellant of his nonconstitutional
rights.
{¶14} An Alford plea occurs when “a defendant pleads guilty yet maintains
actual innocence of the charges.” Id. at ¶ 13. Under Ohio law, an Alford plea is
properly accepted where the record demonstrates that the: (1) defendant's plea was
not the result of coercion, deception or intimidation; (2) defendant's counsel was
present at the time the plea was entered; (3) defense counsel's representation was
competent in light of the circumstances of the indictment; (4) the plea was entered
with an understanding of the underlying charges; and (5) the defendant was
motivated by a desire for a lesser penalty, a fear of the consequences of a jury trial,
or both. State v. LaBooth, 7th Dist. No. 15 MA 0044, 2017-Ohio-1262, ¶ 23, citing
State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), syllabus.
{¶15} At the plea hearing, the trial court addressed Appellant’s Alford plea.
Appellant informed the court that he was entering his Alford plea voluntarily and
without coercion or intimidation. Appellant’s counsel was present at the time the plea
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was entered and answered several of Appellant’s questions during the proceedings.
Additionally, Appellant faced multiple aggravated murder and aggravated burglary
charges and pleaded guilty to a sole count of involuntary manslaughter. Thus, the
record demonstrates that counsel was competent. Appellant told the court that he
understood the underlying charges and explained that he wished to plead guilty to
avoid the potential of a life sentence where he would never see his children again.
Thus, it appears that he was motivated by a desire of a lesser penalty. As such,
there are no appealable issues concerning Appellant’s Alford plea.
Sentencing
{¶16} 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.
{¶17} 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.
{¶18} At the sentencing hearing, the trial court expressly considered and
weighed the R.C. 2929.12 seriousness and recidivism factors. The court also stated
that it considered the purposes and principles of sentencing. Appellant’s sentence
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falls within the statutory range prescribed within R.C. 2929.14. Accordingly, it
appears that the trial court complied with the requisite sentencing statutes.
{¶19} Both Appellant and appellate counsel have raised sentencing as a
possible error. Appellate counsel does not specify in which manner the sentence
could be erroneous, however, Appellant contends that he should have received a
sentence more in line with what a codefendant received. Appellant argues that he
was less culpable than his codefendant yet was sentenced to ten years of
incarceration while the codefendant received judicial release after six months. We
note that the record contains no real information on this codefendant’s sentence.
Even so, it is apparent from the record that the trial court did take the fact that
Appellant was less culpable than his codefendant into consideration.
{¶20} When analyzing the recidivism factors, the court stated:
[A]ccording to the facts that I have seen and based upon the
amendment of the charge and the noninclusion of a gun specification
charge, you were slightly less culpable than your co-defendants, and in
particular, it does not appear that you had any involvement whatsoever
in procuring or acquiring the firearm.
(9/9/16 Sentencing Hrg. Tr., p. 7.) Regardless, “[a] defendant alleging
disproportionality in felony sentencing has the burden of producing evidence to
‘indicate that his sentence is directly disproportionate to sentence given to other
offenders with similar records who have committed these offenses.’ ” State v.
Williams, 7th Dist., 2015-Ohio-4100, 43 N.E.3d 797, ¶ 52 citing State v. Wilson, 8th
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Dist. No. 99331, 2013-Ohio-3915, ¶ 16. Appellant has not presented any information
pertaining to his codefendant’s sentence, criminal record, or whether the sentence
was pursuant to a plea agreement. As such, he has not shown that his sentence
was disproportionate to the sentences received by codefendants. There are no
appealable issues concerning Appellant’s sentence.
Postrelease Control
{¶21} A trial court must provide notification to a defendant regarding
postrelease control at the time of sentencing and within its sentencing entry. State v.
Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18-19. The
notification must include the details of the postrelease control and the consequences
of violating postrelease control. Id.
{¶22} Here, the trial court properly advised Appellant of the length of his
postrelease control, the mandatory nature of his postrelease control, and the
consequences he would face if he violated postrelease control. These advisements
were incorporated into the trial court’s sentencing entry. There are no appealable
issues as to the trial court’s advisement of postrelease control.
Conclusion
{¶23} Appellant's counsel filed a no merit brief requesting leave to withdraw.
A complete review of the case reveals no potentially meritorious issues as to
Appellant’s convictions or sentence. As such, his convictions and sentence are
affirmed and counsel’s motion to withdraw is granted.
DeGenaro, J., concurs.
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Robb, P.J., concurs.