[Cite as State v. Goad, 2018-Ohio-1338.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 17 MA 0051
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
RALPH GOAD )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 16 CR 631
JUDGMENT: Convictions Affirmed. Sentence
Vacated. Remanded for Resentencing.
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. Shelli Ellen Freeze
839 Southwestern Run Road
Poland, Ohio 44514
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: March 29, 2018
[Cite as State v. Goad, 2018-Ohio-1338.]
WAITE, J.
{¶1} Appellant Ralph Goad appeals his convictions and sentences entered
pursuant to a Crim.R. 11 plea agreement in the Mahoning County Common Pleas
Court. Appellant was convicted on multiple counts of burglary, multiple counts of
breaking and entering, and one count of attempted burglary. Appellant’s counsel
filed a no merit brief requesting leave to withdraw. A complete review of the record
reveals the only appealable issue regards the imposition of consecutive sentences by
the trial court. The trial court failed to make the statutorily mandated consecutive
sentence findings at the sentencing hearing and in the judgment entry. Therefore,
Appellant’s convictions are affirmed, but the trial court’s sentencing is vacated and
the matter is remanded for resentencing. Appointed counsel’s motion to withdraw is
granted.
Factual and Procedural History
{¶2} On June 9, 2016, Appellant was indicted. Counts one, two and three
involved breaking and entering in violation of R.C. 2911.13(A), (C), felonies of the
fifth degree. Counts four, five, six and seven charged burglary in violation of R.C.
2912(A)(2), (D), felonies of the second degree; counts eight, nine and ten charged
breaking and entering in violation of R.C. 2911.13(A), (C), felonies of the fifth degree.
Count eleven was for attempted burglary in violation of R.C. 2911.12(A)(2), (D) and
R.C. 2923.02, a felony of the third degree, and counts twelve and thirteen involved
burglary in violation of R.C. 2911.12(A)(2), (D), felonies of the second degree.
{¶3} Appellant entered into a Crim.R. 11 plea agreement with the state.
Pursuant to plea negotiations, the state amended all of the burglary counts (counts 4-
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7; 12, 13) from second degree felonies to third degree felonies. Appellant agreed to
plead to the charges as amended. The state agreed to recommend a sentence of
fifteen years of imprisonment and agreed that Appellant was free to argue for a lesser
sentence. On January 5, 2017, the trial court held a plea hearing. After entering into
a Crim.R. 11 colloquy with Appellant, the court accepted his guilty plea. The state
recommended a sentence of a fifteen-year term of incarceration. Appellant did not
object to this recommendation.
{¶4} On March 1, 2017, the trial court held a sentencing hearing. The state
reiterated its recommendation for a prison sentence of fifteen years. Appellant’s
counsel argued for a term of five to seven years. The trial court accepted the state’s
recommendation and sentenced Appellant to thirty months each on counts four, five,
six, seven, twelve and thirteen, to be served consecutively to one another; a thirty
month sentence on count eleven, to be served concurrently with count four; a
sentence of twelve months each on counts one, two, three, eight, nine and ten to be
served concurrently with count four. The total prison term to which Appellant was
sentenced was fifteen years. The court also imposed a mandatory three-year term of
postrelease control and credited Appellant with 280 days of jail time served. This
timely appeal followed.
No Merit Brief
{¶5} Appellant’s counsel seeks to withdraw after finding no 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
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district, it is also 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, this Court 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
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
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counsel of record should be allowed, and the judgment of the trial court
should be affirmed.
Id. at syllabus.
{¶7} On June 28, 2017, appellate counsel filed a no merit brief in this matter.
On July 19, 2017, we entered a judgment entry informing Appellant that his counsel
had filed a no merit brief and gave him thirty days to file his own brief. Appellant
failed to file a brief. Accordingly, this Court must independently examine the record
to determine whether there are any potentially meritorious issues in this matter.
Counsel contends that she has reviewed the plea colloquy and sentence.
Plea Hearing
{¶8} Per Crim.R. 11(C), the trial court must advise the defendant of certain
rights prior to accepting a guilty plea. These rights are both constitutional and
nonconstitutional in nature.
{¶9} Regarding the defendant’s constitutional rights, a trial court must advise
a defendant of: (1) a right to a jury trial; (2) a right to confront witnesses; (3)
compulsory process to obtain favorable witnesses; (4) the state’s burden to prove
defendant’s guilt beyond a reasonable doubt at trial; and (5) that defendant cannot be
compelled to testify at his trial. State v. Bell, 7th Dist. No. 14 MA 0017, 2016-Ohio-
1440, ¶ 9, citing Crim.R. 11(C)(2); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, 897 N.E.2d 621, ¶ 19-21. The trial court must strictly comply with these
constitutional requirements in order for a defendant’s plea to be deemed valid. Id. at
¶ 31.
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{¶10} The defendant must also be advised of his nonconstitutional rights
which include: (1) the nature of the charges; (2) the maximum penalty to which the
defendant is subject, including postrelease control, if it is applicable; (3) whether the
defendant is eligible for probation or community control sanctions; and (4) that the
trial court may immediately proceed to sentencing after the plea is accepted. Id. at
¶ 10-13. Strict compliance is not required for these rights. The trial court need only
substantially comply when advising on these nonconstitutional requirements.
“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.” Bell, supra at ¶ 10, citing Veney at ¶ 15. If the trial court has not
substantially complied when advising defendant of his or her nonconstitutional rights,
the defendant must then demonstrate that there has been a prejudicial effect. Id.
{¶11} At the plea hearing in the instant matter, the trial court informed
Appellant he had the right to a jury trial; that the state would be required to prove
each element of the offenses beyond a reasonable doubt; he had the right to issue
subpoenas to compel witnesses to testify; he had the right to confront witnesses
against him; and that he could not be compelled to testify at trial. (1/5/17 Plea Hrg.
Tr., pp. 4-6.) This record reveals that the trial court strictly complied when advising
Appellant of his constitutional rights.
{¶12} Regarding Appellant’s nonconstitutional rights, the trial court informed
him of the charges that were brought against him, which included multiple counts of
breaking and entering, multiple counts of burglary, and a single count of attempted
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burglary. (1/5/17 Plea Hrg. Tr., pp. 4-5.) The court also advised Appellant that he
was subject to a maximum sentence of one year on each of the counts of breaking
and entering and a maximum of 36 months on each of the burglary counts, the
amended burglary counts and the attempted burglary charge. The court informed
Appellant that if he received a term of incarceration he would be subject to a
mandatory three-year term of postrelease control. (1/5/17 Plea Hrg. Tr., pp. 8-9.)
The court informed Appellant that it could proceed immediately to sentencing after
accepting his plea. (1/5/17 Plea Hrg. Tr., p. 7.) The record, then, also reveals the
trial court substantially complied when advising Appellant of his nonconstitutional
rights.
{¶13} As the trial court strictly complied when advising Appellant of his
constitutional rights and substantially complied when advising him of his
nonconstitutional rights, there are no appealable issues regarding Appellant’s guilty
plea and subsequent conviction.
Sentencing
{¶14} An appellate court may review a felony sentence to determine if it is
clearly and convincingly contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 23. “[A]n 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.
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{¶15} A sentencing court must consider the purposes and principles of
sentencing in accordance with R.C. 2929.11; the seriousness and recidivism factors
set forth in R.C. 2929.12; and the appropriate consecutive sentence requirements
enumerated in R.C. 2929.14(C)(4).
{¶16} In the instant matter, the trial court accepted the state’s
recommendation and sentenced Appellant to thirty months each on counts four, five,
six, seven, twelve and thirteen, to be served consecutively to one another; a
sentence of thirty months on count eleven to be served concurrently with count four;
a sentence of twelve months each on counts one, two, three, eight, nine and ten to
be served concurrently with count four, for a total stated prison term of fifteen years.
{¶17} When imposing consecutive sentences the trial court must make the
required R.C. 2929.14(C)(4) findings at the sentencing hearing and must also
incorporate those findings into the written sentencing entry. State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 654, ¶ 29. R.C. 2929.14(C)(4) reads:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
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(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender's
conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4).
{¶18} We recognize “a word-for-word recitation of the language of the statute
is not required, and as long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence
to support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29.
{¶19} In the case sub judice, the record reveals the trial court failed to make
any of the findings at the sentencing hearing and also failed to make these findings in
the written judgment entry. The trial court stated that it was imposing consecutive
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sentences but the record is devoid of any indication that it considered R.C.
2929.14(C)(4) when it imposed those consecutive sentences.
{¶20} Therefore, although there are no appealable issues regarding
Appellant’s convictions, the trial court’s failure to properly consider the R.C.
2929.14(C)(4) requirements when imposing consecutive sentences requires
resentencing. We affirm Appellant’s convictions but vacate his sentence and remand
the matter to the trial court for a new sentencing hearing. Appointed counsel’s
motion to withdraw is granted.
Donofrio, J., concurs.
Robb, P.J., concurs.