[Cite as State v. Adams, 2016-Ohio-891.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO                                   )
                                                )
        PLAINTIFF-APPELLEE                      )
                                                )           CASE NO. 14 MA 0077
VS.                                             )
                                                )                  OPINION
RAUDEED ADAMS                                   )
                                                )
        DEFENDANT-APPELLANT                     )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Mahoning County, Ohio
                                                Case No. 2013 CR 886

JUDGMENT:                                       Motion sustained. Judgment affirmed.

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

For Defendant-Appellant                         Attorney Andrew Zellers
                                                3810 Starrs Centre Drive
                                                Canfield, Ohio 44406



JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                Dated: March 4, 2016
[Cite as State v. Adams, 2016-Ohio-891.]
DeGENARO, J.

        {¶1}    Defendant-Appellant Raudeed Adams appeals the judgment of the
Mahoning County Court of Common Pleas convicting him of one count of felonious
assault and sentencing him accordingly. Appointed appellate counsel for Adams
filed a no-merit brief and a request to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967) and State v. Toney,
23 Ohio App.2d 203, 262 N.E.2d 419 (7th.Dist.1970). Adams filed a brief thereafter
asserting four assignments of error. For the following reasons, this court sustains
counsel's motion to withdraw and affirms the judgment of the trial court as there are
no meritorious arguments on appeal.
                                 Facts and Procedural History
        {¶2}    Adams was indicted on one count of felonious assault, R.C.
2903.11(A)(1)(D), a second-degree felony. Adams was appointed four different
attorneys during the pendency of this matter in the trial court; the first three of which
filed motions to withdraw. Adams ultimately waived his right to counsel in open court
and on the record. His fourth appointed attorney continued as stand-by counsel and
was present for and provided guidance during Adams' plea.
        {¶3}    Adams entered into a Crim.R. 11 plea agreement in which he agreed to
plead guilty to one count of felonious assault, as charged. The State agreed to adopt
a favorable recommendation if advanced in the pre-sentence investigation (PSI) or to
otherwise remain silent. The trial court accepted Adams' plea as freely and voluntarily
made with full knowledge of the consequences. The trial court imposed a three year
term of imprisonment to be served at a state correctional facility. Adams was given
credit for 247 days of time served.
        {¶4}    An attorney appointed to represent an indigent criminal defendant may
seek permission to withdraw if the attorney can show that there is no merit to the
appeal. See generally Anders, supra. To support such a request, appellate counsel is
required to undertake a conscientious examination of the case and accompany his or
her request for withdrawal with a brief referring to anything in the record that might
arguably support an appeal. Toney at 207. Counsel's motion must then be
                                                                             -2-


transmitted to the defendant in order to assert any error pro se. Id. at syllabus. The
reviewing court must then decide, after a full examination of the record, whether the
case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is
granted and the trial court's judgment affirmed. Id.
      {¶5}   Counsel filed a no-merit brief and Adams filed a brief asserting four
assignments of error which we will address. State v. Moore, 7th Dist. No. 08 MA 20,
2009–Ohio–1505, ¶ 13. In the typical Anders/Toney case involving a guilty plea, the
only issues that can be reviewed on appeal relate to the plea and the sentence. State
v. Verity, 7th Dist. No. 12 MA 139, 2013–Ohio–1158, ¶ 11.
                                         Plea
      {¶6}   A guilty plea must be made knowingly, voluntarily and intelligently.
State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 7. If it is
not, it has been obtained in violation of due process and is void. State v. Martinez,
7th Dist. No. 03 MA 196, 2004–Ohio–6806, ¶ 11, citing Boykin v. Alabama, 395 U.S.
238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness
of a plea, this court must consider all of the relevant circumstances surrounding it.
State v. Johnson, 7th Dist. No. 07 MA 8, 2008–Ohio–1065, ¶ 8, citing Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
      {¶7}   The trial court must engage in a Crim.R. 11(C) colloquy with the
defendant in order to ensure that a felony defendant's plea is knowing, voluntary and
intelligent. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶
25–26. During the colloquy, the trial court is to provide specific information to the
defendant, including constitutional and nonconstitutional rights being waived. Crim.R.
11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.
      {¶8}   The constitutional rights the defendant must be notified of are the right
against self-incrimination, to a jury trial, to confront one's accusers, to compel
witnesses to testify by compulsory process, and to have the state prove guilt beyond
a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008–
Ohio–5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these
                                                                                  -3-


requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115
(1981). Strict compliance does not require a rote recitation of the exact language of
the rule. Rather, a reviewing court should focus on whether the "record shows that
the judge explained these rights in a manner reasonably intelligible to the defendant."
Id. at paragraph two of the syllabus.
       {¶9}     The nonconstitutional rights the defendant must be informed of are the
effect of his plea, the nature of the charges, and the maximum penalty, which
includes an advisement on post-release control if applicable. Further, a defendant
must be notified, if applicable, that he is not eligible for probation or the imposition of
community control sanctions. Finally, this encompasses notifying the defendant that
the court may proceed to judgment and sentence after accepting the guilty plea.
Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d 176 at ¶ 10–13; Sarkozy, 117 Ohio
St.3d 86, at ¶ 19–26. The trial court must substantially comply with these
requirements. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
"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." Id. In addition to demonstrating the trial court did not substantially comply
with Crim.R. 11(C)(2)(a)(b), the defendant must also show a prejudicial effect,
meaning the plea would not have otherwise been made. Veney, 120 Ohio St.3d 176
at ¶ 15 citing Nero, 56 Ohio St.3d at 108.
       {¶10} The trial court's advisement of Adams' constitutional rights strictly
complied with Crim.R. 11(C)(2)(c), and he indicated he understood he was giving up
these rights.
       {¶11} The trial court substantially complied with Crim.R. 11(C) when advising
Adams of his nonconstitutional rights, except perhaps one as pointed out—but then
rejected by counsel in his Anders/Toney brief: that the trial court failed to notify
Adams of the effect of his guilty plea. Although the trial court did not state that the
plea of guilty is a complete admission of the guilt, the Ohio Supreme Court held: "A
defendant who has entered a guilty plea without asserting actual innocence is
                                                                                             -4-


presumed to understand that he has completely admitted his guilt. In such
circumstances, a court's failure to inform the defendant of the effect of his guilty plea
as required by Crim.R. 11 is presumed not to be prejudicial." State v. Griggs, 103
Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus.
          {¶12} As the trial court's colloquy complied with Crim.R. 11(C), the plea was
knowingly, voluntarily, and intelligently entered. Accordingly, there are no appealable
issues regarding Adams' plea.
                                             Sentencing
          {¶13} This Court is currently split as to the standard of review to apply in
felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014–Ohio–919,
which applied the two-part test set forth in the plurality opinion in State v. Kalish, 120
Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, and State v. Wellington, 7th Dist.
No. 14 MA 115, 2015–Ohio–1359, which applied R.C. 2953.08(G) and limiting
appellate review of felony sentences to determining whether they are clearly and
convincingly contrary to law. The issue is currently before the Ohio Supreme Court.
State v. Marcum, 141 Ohio St.3d 1453, 2015–Ohio–239, 23 N.E.3d 1453.
Regardless of which standard of review is applied here, the outcome is the same.
          {¶14} Adams was afforded his allocution rights pursuant to Crim.R. 32(A)(1).
The trial court properly notified Adams that upon his release from prison he would be
subject to a discretionary three-year period of post-release control and explained the
ramifications of violating post-release control. R.C. 2967.28(C).
          {¶15} The record demonstrates that the trial court considered the purposes of
felony sentencing and the sentencing factors of R.C. 2929.11 and R.C. 2929.12. The
court also reviewed the written presentence investigation, which is part of the present
record before us. The permissible sentencing range for a second-degree felony is a
prison term of two to eight years in prison. R.C. 2929.14(A)(2)1. "In imposing a prison
sentence, the sentencing court has discretion to state its own reasons in choosing a
sentence within a statutory range unless a mandatory prison term must be imposed."

1   This version of the statute governs Adams' appeal, effective September 28, 2012 to March 22, 2015.
                                                                               -5-


State v. Long, 138 Ohio St.3d 478, 2014–Ohio–849, 8 N.E.3d 890, ¶ 16. Adams
received a lower range sentence of three years. The trial court specifically cited that
the sentence was based on Adams prior juvenile record, the seriousness of the
charge, and the extent of the injury that Adams inflicted upon the 74 year old victim.
      {¶16} The trial court's sentence was within the appropriate statutory range
and consistent with the law and purposes of Ohio's felony sentencing, however, the
court did not expressly state that a minimum sentence would demean the
seriousness of this offense and would not adequately protect the public. Although the
trial court did not specifically reference R.C. 2929.11 and 2929.12 during the
sentencing hearing, it did so in the sentencing entry. The Second District recently
considered this scenario:

      "The trial court has full discretion to impose any sentence within the
      authorized statutory range, and the court is not required to make any
      findings or give its reasons for imposing maximum or more than
      minimum sentences." (Citation omitted.) State v. King, 2013–Ohio–
      2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). "However, the trial court must
      comply with all applicable rules and statutes, including R.C. 2929.11
      and R.C. 2929.12." (Citation omitted.) Id. Although there is a mandatory
      duty to consider the relevant statutory factors under R.C. 2929.11 and
      R .C. 2929.12, these statutes do not require the court to explicitly state
      any findings about these factors. State v. Thomas, 2d Dist. Montgomery
      No. 26123, 2014–Ohio–5262, ¶ 22; State v. Graham, 2d Dist.
      Montgomery Nos. 26205, 26206, 2015–Ohio–896, ¶ 18–19.

State v. Walden, 2d Dist. No. 2014-CA-84, 2016–Ohio–47, ¶ 8.
      {¶17} Here the trial judge stated he considered the "principles and purposes
of sentencing" which aligns with R.C. 2929.11. Further, statements made by the trial
judge regarding the victim and the injuries he sustained, the landlord-tenant
relationship between Adams and the victim and the nature of the offense,
                                                                                -6-


demonstrate the trial court contemplated the factors in R.C. 2929.12. As such, there
is no error in regarding Adams' sentence.
       {¶18} The remaining potential assignment of error suggested by appellate
counsel, but deemed not to be error, involves the prosecuting attorney failing to
remain silent during sentencing as was part of the Rule 11 agreement. The
prosecutor initially did not make any recommendation regarding a sentence and
expressly stated: "I certainly would stand silent and give no opinion whatsoever about
the sentence this court may impose." However, the prosecutor did respond to
statements made by Adams about the victim not actually being injured and to support
the calculation of jail time credit. Specifically, the prosecutor refuted Adams'
contention that he did not receive the victim's medical records and noted that the
records verified the victim's testimony regarding his injuries. The prosecutor also
rebutted Adams' claim that he had never been in trouble by reminding the trial court
that the PSI disclosed multiple juvenile adjudications. As such, appellate counsel's
ultimate conclusion is correct and this potential assignment of error is meritless.

                               Pro Se Representation
       {¶19} In his first of four assignments of error, Adams asserts:

              THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING
       THE    DEFENDANT-APPELLANT             TO    REPRESENT        HIS    SELF
       WITHOUT PROPERLY ADVISING HIM OF THE CONSEQUENCES
       OF HIS WAIVER OF COUNSEL IN OPEN COURT. (sic) VIOLATING
       HIS RIGHTS PURSUANT TO OHIO CONSTITUTION ARTICLE I,
       SECTION       10;    UNITED      STATES       CONSTITUTION          SIXTH
       AMENDMENT.

       {¶20} A defendant's right to self-representation has long been recognized.
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). When a
defendant requests to proceed pro se, the trial court must consider whether the
                                                                                -7-


request is timely and unequivocal, and that the defendant knowingly, intelligently, and
voluntarily waives his right to counsel. State v. Cassano, 96 Ohio St.3d 94, 100,
2002–Ohio–3751, 772 N.E.2d 81, ¶ 32. Crim.R. 44(C) provides that a waiver of
counsel shall be made open court, recorded and, as in this case, when a serious
offense is involved, the waiver shall be in writing.
       {¶21} Adams argues that the trial court failed to conduct an adequate colloquy
contending that the trial court was required to ask questions about his educational
background. However, a review of the transcript demonstrates that Adams waiver of
counsel was timely as well as knowingly, voluntarily and intelligently made. Adams
confirmed that he wanted to waive counsel, that he read the waiver form, and that he
understood what he was doing. Adams reviewed the waiver of counsel form with the
advisory lawyer he was appointed, and he signed the form in open court.
Accordingly, this assignment of error is meritless.
                                  Biased Statements
       {¶22} In his second of four assignments of error, Adams asserts:

              THE TRIAL COURT COMMITTED REVERSABLE ERROR
       DURING      SENTENCING        BY    MAKING       BIASED   STATEMENTS,
       PUNISHING         THE      APPELLANT            FOR   INVOKING         HIS
       CONSTITUTIONAL RIGHTS TO COUNSEL. OHIO CONSTITUTION
       ARTICLE     I,   SECTION     10;   UNITED STATES          CONSTITUTION
       AMENDMENT[S] 14.

       {¶23} Adams takes issue with the trial court acknowledging that he had "gone
through" three lawyers and "ended up with a stand-by lawyer who was excellent."
Adams believes that he received his three year sentence based on the fact that he
had multiple attorneys. The record does not support this contention. These
statements by the trial court establish that Adams had the benefit of legal counsel
throughout the proceedings. The trial court clearly based its sentence on Adams'
prior record, the seriousness of the offense, the injury to the victim while being guided
                                                                                 -8-


by the principles and purposes of felony sentencing. Accordingly, this assignment of
error is meritless.
                            Self-Defense & Access to PSI
       {¶24} In his third of four assignments of error, Adams asserts:

              THE     TRIAL    COURT        ABUSED     ITS    DISCRETION       BY
       SENTENCING APPELLANT TO PRISON BASED OFF OF FACTS
       THAT WERE NOT TRUE OR CORRECT. IN VIOLATION OF OHIO
       CONSTITUTION        ARTICLE     I,   SECTION 10;       UNITED     STATES
       CONSTITUTION AMENDMENT[S] 5 AND 14.

       {¶25} Adams contests factual determinations and appears to proffer a theory
of self-defense. Because Crim.R. 11(B)(1) provides that a guilty plea is a complete
admission of the defendant's guilt, Adams is barred from asserting these arguments
on appeal. Adams also alleges that he was not given an opportunity to review the
PSI, but the trial transcript directly contradicts this contention. The court stated: "No.
No. CCA was not recommended, and the PSI did not recommend it. You read that."
Accordingly, this assignment of error is meritless.
                      Ineffective Assistance of Standby Counsel
       {¶26} In his fourth and final assignment of error, Adams asserts:

              APPOINTED STAND-BY TRIAL COUNSEL WAS INEFFECTIVE
       FOR FAILING TO ADVISE APPELLANT THAT HE COULD BRING
       WITNESSES TO TESTIFY IN MITIGATION OF SENTENCING AND
       FOR FAILING TO APPEAR AT THE [HEARING] IN VIOLATION OF
       OHIO CONSTITUTION ARTICLE I, SECTION 10; UNITED STATES
       CONSTITUTION AMENDMENT[S] 5 AND 14.

       {¶27} First, at no point during the sentencing hearing did Adams bring to the
court's attention that he wished to have standby counsel present. Errors not brought
to the trial court's attention by objection or otherwise are waived for purposes of
                                                                                -9-


appeal. State v. Campbell, 69 Ohio St.3d 38, 40-41, 1994-Ohio-492, 630 N.E.2d 339.
Secondly, a guilty plea waives the right to allege ineffective assistance of counsel,
except to the extent the errors caused the plea to be less than knowing and
voluntary. State v. Huddleson, 2d Dist. No. 20653, 2005–Ohio–4029, ¶ 9 citing State
v. Spates, 64 Ohio St.3d 269, 1992-Ohio-130, 595 N.E.2d 351. As explained above,
Adams' plea was knowingly, voluntarily and intelligently made.
       {¶28} Lastly, in Ohio a defendant has the right to representation by counsel or
to proceed pro se with the assistance of standby counsel, but has no right to hybrid
representation. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d
227, syllabus. As such, when a defendant waives his right to counsel he waives his
right to claim ineffective assistance of counsel. State v. Turner, 8th Dist. No. 88958,
2007-Ohio-5732, ¶ 40. As Adams validly waived his right to counsel he is precluded
from asserting this claim. Further, he alleges that standby counsel should have
advised him that he could present witnesses to testify at sentencing. However,
Adams did bring his wife as a witness to testify but due to her being "emotional" he
did not have her testify. Accordingly, this assignment of error is meritless.
       {¶29} In sum, based upon our independent review of the record, we sustain
counsel's motion to withdraw as there are no meritorious arguments on appeal, and
Adams' four pro se assignments of error are meritless. Accordingly the judgment of
the trial court is affirmed.

Donofrio, P. J., concurs.

Waite, J., concurs.
