[Cite as State v. Jones, 2019-Ohio-4921.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :       OPINION

                  Plaintiff-Appellee,            :
                                                         CASE NO. 2019-A-0033
         - vs -                                  :

 MARKUS DUANE ANTHONY JONES,                     :

                  Defendant-Appellant.           :


 Criminal Appeal from the Ashtabula County Court of Common Pleas.
 Case No. 2018 CR 00436.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047-1092 (For Plaintiff-Appellee).

 Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, OH 44109 (For Defendant-
 Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Markus Duane Anthony Jones, entered a plea of guilty to one

count of rape, a felony of the first degree. The Ashtabula County Court of Common Pleas

accepted his plea and, on February 25, 2019, sentenced him to a term of 10 years in

prison, as well as Tier III Sex Offender status upon release. Appellant filed an appeal

from this judgment, and his current appointed counsel has filed a brief and requested

leave to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967). On July 17,
2019, we issued an order holding the motion to withdraw in abeyance and granting

appellant 30 days to submit a supplemental brief. Appellant was sent the order and has

not filed a pro se supplemental brief. The state filed a responsive brief on July 16, 2019.

After conducting an independent review of appellant’s case, we conclude the instant

appeal is wholly frivolous and affirm the trial court’s judgment.

       {¶2}   Appellant was indicted on one count of rape, a felony of the first degree in

violation of R.C. 2907.02(A)(1)(b), and one count of gross sexual imposition, a felony of

the third degree in violation of R.C. 2907.05(A)(4)(C)(2). Appellant initially entered a plea

of not guilty. On January 22, 2019, appellant changed his plea to guilty to an amended

count of rape in violation of R.C. 2907.02(A)(1)(c), removing the language regarding the

victim’s age. Appellant and the state jointly recommended a sentence of 10 years on the

amended rape count and dismissal of the gross sexual imposition count.

       {¶3}   At the hearing on appellant’s plea, the trial court engaged appellant in a full

and thorough plea colloquy, during which the court discussed the penalties appellant was

facing in light of the joint recommendation. The court further addressed the constitutional

rights appellant agreed to waive if the court accepted the plea. Appellant represented he

understood his rights and agreed to waive them. He additionally stated he was satisfied

with his attorney’s representation and had no questions relating to his plea of guilty. He

also stated the following:

              THE COURT: Mr. Jones, could you please tell the Court what
              happened that resulted in this charge being brought against you.

              APPELLANT: Well, Your Honor, it was a night I was off my meds and
              I was depressed. I was really depressed. I just – I went into a mood
              and – because [victim] was mad at me and I didn’t want him mad at
              me, so I did what I did, Your Honor.




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       {¶4}   After appellant had a chance to speak, the state added the following facts

in support of the charge:

              For a period of time, the defendant was residing in the [Family]’s
              home. He was friends with [Father], the father of [Victim]. It was
              during that time there was sexual contact by Mr. Jones with [Victim]
              and, ultimately, it culminated to a point where Mr. Jones did perform
              oral sex on [Victim] while [Victim] was sleeping and it caused him to
              awaken. So that is the rape count for Count 1, as amended.

       {¶5}   The court proceeded to sentencing on February 25, 2019, and imposed the

jointly recommended sentence of 10 years. Appellant filed a timely notice of appeal on

March 6, 2019. New counsel was appointed for appellant, who later filed a brief pursuant

to Anders, supra.

       {¶6}   In Anders, the United States Supreme Court held that if appellate counsel,

after a conscientious examination of the record, finds an appeal to be wholly frivolous, he

or she should advise the court and request permission to withdraw. Id. at 744. This

request to withdraw must be accompanied by a brief citing anything in the record that

could arguably support an appeal. Id. Further, counsel must furnish his or her client with

a copy of the brief and the request to withdraw and give the client an opportunity to raise

any additional issues. Id. Once these requirements have been met, the appellate court

must review the entire record to determine whether the appeal is wholly frivolous. Id. If

the court finds the appeal wholly frivolous, the court may grant counsel’s motion to

withdraw and proceed to a decision on the merits. Id. If, however, the court concludes

the appeal is not frivolous, it must appoint new counsel for the client. Id.

       {¶7}   Pursuant to Anders, appellate counsel’s brief was properly served on

appellant, who has not filed a merit brief. Appellate counsel did not propose a specific




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assignment of error but advanced four potential issues for review.          The first issue

proposed by counsel challenges the change of plea and is as follows:

      {¶8}   “[1.] Whether the trial court complied with Criminal Rule 11 in ensuring

Appellant’s change of plea was knowingly, intelligently, and voluntarily made.”

      {¶9}   Crim.R. 11(C)(2) states:

             (2) In felony cases the court may refuse to accept a plea of guilty or
             a plea of no contest, and shall not accept a plea of guilty or no contest
             without first addressing the defendant personally and doing all of the
             following:

                    (a) Determining that the defendant is making the plea
                    voluntarily, with understanding of the nature of the charges
                    and of the maximum penalty involved, and if applicable, that
                    the defendant is not eligible for probation or for the imposition
                    of community control sanctions at the sentencing hearing.

                    (b) Informing the defendant of and determining that the
                    defendant understands the effect of the plea of guilty or no
                    contest, and that the court, upon acceptance of the plea, may
                    proceed with judgment and sentence.

                    (c) Informing the defendant and determining that the
                    defendant understands that by the plea the defendant is
                    waiving the rights to jury trial, to confront witnesses against
                    him or her, to have compulsory process for obtaining
                    witnesses in the defendant’s favor, and to require the state to
                    prove the defendant’s guilt beyond a reasonable doubt at a
                    trial at which the defendant cannot be compelled to testify
                    against himself or herself.

      {¶10} The record reflects appellant was fully advised by the trial court about his

constitutional rights. The court engaged appellant in the Crim.R. 11(C) colloquy to ensure

he was knowingly, voluntarily, and intelligently pleading guilty to the charges resulting

from the plea negotiations and accepting them as his own. After appellant waived each

of his constitutional rights and assured the court he had no questions as to those rights,

the court accepted his written plea of guilty and found him guilty as to the amended rape



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charge. Further, the plea agreement appellant signed before sentencing specifically

stated each of the rights he was waiving and advised him of the charges and possible

penalties.

      {¶11} Counsel’s proposition that the trial court strictly complied with Crim.R.11(C)

is accurate, and we discern no error.

      {¶12} The next two issues proposed by counsel challenge the sentencing of

appellant and are as follows:

             [2.] Whether the prison sentence imposed by the trial court is
             contrary to law.

             [3.] Whether the trial court properly weighed the statutory sentencing
             factors.

      {¶13} R.C. 2953.08 sets forth certain rights and grounds upon which to appeal a

felony conviction. Whereas R.C. 2953.08(D)(1) sets forth an exception to the right to

appeal: “A sentence imposed upon a defendant is not subject to review under this section

if the sentence is authorized by law, has been recommended jointly by the defendant and

the prosecution in the case, and is imposed by a sentencing judge.”

      {¶14} “‘[A] sentence is “authorized by law” and is not appealable within the

meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing

provisions. A trial court does not have the discretion to exercise its jurisdiction in a

manner that ignores mandatory statutory provisions.’” State v. Green, 11th Dist. Trumbull

No. 2017-T-0073, 2018-Ohio-3536, ¶10, quoting State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, ¶20.

      {¶15} “‘[A] sentence is “authorized by law” for R.C. 2953.08(D)(1) purposes if it is

within the statutory range of available sentences.’” Id. at ¶11, quoting State v. Perkins,




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11th Dist. Trumbull No. 2015-T-0115, 2017-Ohio-154, ¶7, citing State v. Freeman, 7th

Dist. Mahoning No. 14MA25, 2014-Ohio-5725, ¶26. Appellant’s sentence was within the

applicable statutory range of 3 to 11 years and, thus, was authorized by law. See R.C.

2907.02(A)(1)(c) and R.C. 2907.02(B).

      {¶16} The second and third conditions of R.C. 2953.08(D)(1) were also met; to

wit: the sentence was jointly recommended by the state and appellant, and the trial court

imposed the recommended sentence. Hence, appellant’s sentence is not subject to

appellate review.

      {¶17} Counsel’s proposition that sentencing was proper and not subject to review

is accurate, and we discern no error.

      {¶18} Next, counsel asserts a fourth potential issue:

      {¶19} “[4.] Whether Appellant’s counsel was ineffective.”

      {¶20} “In order to prevail on an ineffective assistance of counsel claim, an

appellant must demonstrate that trial counsel’s performance fell ‘below an objective

standard of reasonable representation and, in addition, prejudice arises from counsel’s

performance.’” State v. Denihan, 11th Dist. Ashtabula No. 2016-A-0003, 2016-Ohio-

7443, ¶10, quoting State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the

syllabus (adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

“[T]here is no reason for a court deciding an ineffective assistance claim to approach the

inquiry in the same order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Bradley, supra, at 143.

      {¶21} There is a general presumption that trial counsel’s conduct is within the

broad range of professional assistance. Id. at 142. Debatable trial tactics generally do




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not constitute deficient performance. State v. Phillips, 74 Ohio St.3d 72, 85 (1995). In

order to show prejudice, the appellant must demonstrate a reasonable probability that,

but for counsel’s error, the result of the proceeding would have been different. Bradley,

supra, at paragraph three of the syllabus.

       {¶22} “As a general proposition, the Supreme Court of Ohio has stated that a

guilty plea ‘represents a break in the chain of events which has preceded it in the criminal

process.’ Green, supra, at ¶18, quoting State v. Spates, 64 Ohio St.3d 269, 272 (1992).

“Thus, if a criminal defendant admits his guilt in open court, he waives the right to

challenge the propriety of any action taken by the court or counsel prior to that point in

the proceeding unless it affected the knowing and voluntary character of the plea.” Id.

       {¶23} In addition to the admission in court at the plea hearing, the trial court

engaged in the proper colloquy to ensure a knowing and voluntary plea. After the state

presented the facts of the charges, the court accepted the plea. Appellant’s counsel

successfully negotiated from a possible life sentence under the indicted offenses to a

maximum sentence of 11 years under the amended rape count, of which appellant was

sentenced to less than the maximum. There is nothing to suggest the representation by

appellant’s counsel fell below an objective standard of reasonable representation or that

any prejudice arose from trial counsel’s performance. Hence, appellant cannot establish

either prong for demonstrating ineffective assistance of counsel under Strickland.

       {¶24} Appellate counsel’s proposition that appellant’s trial counsel was not

ineffective is accurate, and we discern no error.




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      {¶25} After an independent review of the record, we perceive no errors and

conclude the instant appeal is wholly frivolous. The judgment of the Ashtabula County

Court of Common Pleas is affirmed, and counsel’s motion to withdraw is granted.


THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.




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