[Cite as State v. Lewis, 2013-Ohio-892.]

                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO,                                   )    CASE NO.     12 MA 107
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )    OPINION
                                                 )
JOSEPH LEWIS,                                    )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 12CR203.


JUDGMENT:                                             Affirmed in part; Reversed and
                                                      Remanded in part.


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

For Defendant-Appellant:                              Attorney Julie Walko
                                                      6600 Summit Drive
                                                      Canfield, Ohio 44406

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                      Dated: March 8, 2013
[Cite as State v. Lewis, 2013-Ohio-892.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Joseph Lewis appeals from his conviction and
sentence entered in the Mahoning County Common Pleas Court for domestic
violence. Appointed counsel filed a no merit brief and requested leave to withdraw.
Although there are no appealable issues regarding the plea and counsel’s
performance, there is one appealable issue regarding sentencing. While Lewis’ 16-
month sentence for the domestic violence conviction is not contrary to law and does
not constitute an abuse of discretion, the portion of Lewis’ sentence that indicates
that he is subject to a three year term of postrelease control is incorrect. Pursuant to
R.C. 2967.28(C), the parole board may subject Lewis to a discretionary period of
postrelease control that could be up to three years. Thus, the matter is affirmed in
part, and reversed and remanded in part. The conviction and imposition of the 16-
month prison sentence is affirmed. However, the portion of the sentence regarding
postrelease control is reversed and the matter is remanded to the trial court for
resentencing.       Upon remand, resentencing is limited to the postrelease control
sentence. State v. Fischer, 128 Ohio St.3d 92, 2010 -Ohio- 6238, 942 N.E.2d 332.
The trial court is instructed to advise Lewis that upon his release from prison he may
be subject to a discretionary period of postrelease control, as determined by the
parole board, which can be up to three years.              Counsel’s motion to withdraw is
granted.
                                           Statement of Case
        {¶2}     On March 22, 2012, Lewis was indicted for domestic violence in
violation of R.C. 2919.25(A) and (D), a fourth-degree felony.              The indictment
indicated that Lewis had a previous conviction in Girard Municipal Court for domestic
violence in 2011. Lewis initially pled not guilty to the instant offense; however, he
later withdrew that plea and entered a guilty plea. The state, as part of the plea
agreement, agreed to recommend a community control sanction with anger
management counseling, that he attend parenting classes, that he attend AA
classes, that he obtain his GED, and that he does not drink. After accepting the
                                                                                      -2-

guilty plea the trial court ordered a presentence investigation report (PSI) and set
sentencing for a later date.
       {¶3}   At sentencing, after reviewing the PSI, the trial court chose to not follow
the state's recommendation.       Rather, it imposed a 16-month sentence.          Lewis
appeals from the conviction and sentence. Appointed counsel has filed a no merit
brief asking to withdraw because there are allegedly no appealable issues.
                                         Analysis
       {¶4}   When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no merit brief or an
Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). In this district it has also been called a Toney brief. State v. Toney, 23 Ohio
App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
       {¶5}   In Toney, this court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
              3. Where 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.
              ***
                                                                                          -3-

               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.
       {¶6}    The no merit brief was filed by counsel on August 20, 2012.
Approximately one week later, this court informed Lewis of counsel's no merit brief
and granted him 30 days to file his own written brief; thus his brief was due on
September 27, 2012. 08/28/12 J.E. Lewis has not filed a pro se brief. The no merit
brief review identifies three potential issues for appeal: 1) whether the plea was
entered into knowingly, intelligently, or voluntarily; 2) whether the sentence was an
abuse of discretion and/or clearly and convincingly contrary to law; and 3) whether
trial counsel’s representation amounted to ineffective assistance of counsel.             In
reviewing these possible appellate arguments, counsel concludes that they have no
merit and the appeal is frivolous.
       {¶7}    The potential issues identified by counsel are the only issues that could
possibly be raised in this appeal. Thus, we will review each issue in turn.
                                             Plea
       {¶8}    Crim.R. 11(C) provides that a trial court must make certain advisements
prior to accepting a defendant's guilty plea to ensure that the plea is entered into
knowingly, intelligently and voluntarily. These advisements are typically divided into
constitutional rights and nonconstitutional rights. There are five constitutional rights
that the trial court must advise the defendant that he is waiving by entering the plea:
1) the right to a jury trial, 2) the right to confront witnesses against him, 3) the right to
the compulsory process for obtaining witnesses in his favor, 4) that the state must
prove the defendant's guilt beyond a reasonable doubt at trial, and 5) that the
defendant cannot be compelled to testify against himself. Crim.R. 11(C)(2)(c); 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 requirements; if it fails to strictly comply, the
defendant's plea is invalid. Veney at ¶ 31.
                                                                                       -4-

       {¶9}   Additionally,   the   defendant    must    also   be    advised    of   four
nonconstitutional rights: 1) the nature of the charges; 2) the maximum penalty
involved, which includes, if applicable, an advisement on postrelease control; 3) if
applicable, that the defendant is not eligible for probation or the imposition of
community control sanctions; and 4) that after entering a guilty plea or a no contest
plea, the court may proceed directly to judgment and sentencing.                 Crim.R.
11(C)(2)(a)(b); Veney at ¶ 10–13; State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–
509, 423 N.E.2d 1224, ¶ 19–26, (indicating that postrelease control is a
nonconstitutional advisement). For the nonconstitutional rights, the trial court must
substantially comply with Crim.R. 11's mandates. 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.” Veney at ¶ 15, quoting Nero at 108. Furthermore,
a defendant who challenges his guilty plea on the basis that the advisement for the
nonconstitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must
also show a prejudicial effect, meaning the plea would not have been otherwise
entered. Veney at ¶ 15, citing Nero at 108.
       {¶10} The trial court's advisement on the constitutional rights strictly complied
with Crim.R. 11(C)(2)(c). Lewis was informed and indicated that he understood that
by pleading guilty he was waiving his right to a jury trial, to confront witnesses against
him, to subpoena witnesses in his favor and to have the state prove at trial each and
every element of the offense of domestic violence by proof beyond a reasonable
doubt. 04/10/12 Tr. 4-5. He was also informed that if he went to trial he could not be
compelled to testify against himself and that by pleading guilty he was giving up that
right. 04/10/12 Tr. 5-6.
       {¶11} As to the Crim.R. 11(C) advisement on the nonconstitutional rights,
Lewis was advised of the charges against him, domestic violence. 04/10/12 Tr. 3. He
was also correctly advised that the maximum penalty for the offense is 18 months in
prison, 3 years of postrelease control following completion of the sentence, and a fine
of $5,000.    04/10/12 Tr. 6–7.     See also R.C. 2929.14(A)(4) (18 months is the
                                                                                       -5-

maximum term for a fourth-degree felony); R.C. 2929.18(A)(3)(d) (maximum fine for a
fourth-degree felony is $5,000); R.C. 2967.28(C) (a fourth-degree felony may be
subject to up to three years of postrelease control).        He was also advised that
although the trial court was going to set sentencing for a later date, the trial court had
the authority and could immediately proceed to sentencing after accepting Lewis’
guilty plea. 04/10.12 Tr. 6.
       {¶12} The trial court did not advise Lewis on his eligibility for probation or a
community control sanction. However, it was not required to. Crim.R. 11(C) only
requires an advisement if the offender is not eligible for probation or a community
control sanction. The offense does not require a mandatory prison term and there is
no presumption of a prison term.        R.C. 2919.25.     Thus, Lewis was eligible for
probation or a community control sanction.
       {¶13} Considering all the above, we find that the trial court's advisement as to
the nonconstitutional rights substantially complied with Crim.R. 11(C). Furthermore,
the court strictly complied with Crim.R. 11(C) when advising Lewis of the
constitutional rights he was waiving by entering a guilty plea. Thus, the plea was
intelligently, voluntarily, and knowingly entered.    There are no appealable issues
concerning the plea.
                                       Sentencing
       {¶14} We review felony sentences using both the clearly and convincingly
contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist.
No. 08MA101, 2009–Ohio–695, ¶ 8; State v. Gray, 7th Dist. No. 07MA156, 2008–
Ohio–6591, ¶ 17. We first determine whether the sentencing court complied with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. Gratz at ¶ 8, citing State v.
Kalish, 120 Ohio St .3d 23, 2008–Ohio–4912, 896 N.E.2d 124, ¶ 13–14. Then, if it is
not clearly and convincingly contrary to law, we must determine whether the
sentencing court abused its discretion in applying the factors in R.C. 2929.11, R.C.
2929.12 and any other applicable statute. Gratz at ¶ 8, citing Kalish at ¶ 17.
                                                                                     -6-

      {¶15} Lewis pled guilty to domestic violence, a fourth-degree felony; the trial
court sentenced him to a 16-month term of incarceration. 05/31/11 Tr. 7; 06/05/12
J.E. This sentence is within the sentencing range of 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, and 18 months that is permitted by R.C. 2929.14(A)(4) for a fourth-degree
felony. Furthermore, in the judgment entry, the trial court indicated that it considered
both R.C. 2929.11 and R.C. 2929.12 when rendering the sentence:
                The Court considered the record, presentence investigation
      report, oral statements and the principles and purposes of sentencing
      under Ohio Revised Code § 2929.11, and balances the seriousness
      and recidivism factors under Ohio Revised Code § 2929.12. The Court
      finds that Defendant is not eligible for a community control sanction.
06/05/11 J.E.
      {¶16} In considering the record, presentence investigation report and the
factors listed in R.C. 2929.11 and 2929.12, the trial court did not abuse its discretion
in declining to follow the prosecutor’s recommendation and in ordering a 16-month
sentence. The transcript of the sentencing hearing clearly indicates that the trial
court considered the recommendation of the prosecutor. The record before this court
confirms the trial court’s conclusion that, given Lewis’ history, a community control
sanction was not warranted. As the trial court noted, Lewis has a lengthy criminal
record. The PSI verifies that he had at least 21 prior misdemeanor convictions,
which includes one prior domestic violence conviction, two prior assault convictions
and multiple disorderly conduct convictions. He also has a prior felony conviction. In
addition to those convictions, he has had at least 13 traffic convictions and
approximately 9 traffic cases dismissed. Furthermore, the PSI shows that he has
been placed on probation or given a community control sanction approximately 15
times before and has had at least 3 probation violations. The PSI also indicates that
the victim, Lewis’ girlfriend, suffered serious physical harm and that their children
were present during the altercation. Thus, given this record, recidivism is more likely
than less likely, the crime is more serious as opposed to less serious, and Lewis is
not amenable to a community control sanction.
                                                                                     -7-

      {¶17} Consequently, considering all the above, the 16-month sentence is not
contrary to law or an abuse of discretion.
      {¶18} That said, there are two incorrect statements that occurred in
sentencing.   The first concerns the postrelease control sentence issued.           R.C.
2967.28(C), the statute on postrelease control states:
              Any sentence to a prison term for a felony of the third, fourth, or
      fifth degree that is not subject to division (B)(1) or (3) of this section
      shall include a requirement that the offender be subject to a period of
      post-release control of up to three years after the offender's release
      from imprisonment, if the parole board, in accordance with division (D)
      of this section, determines that a period of post-release control is
      necessary for that offender.
R.C. 2967.28(C).
      {¶19} Lewis was convicted of a fourth-degree felony and therefore, he is not
subject to (B)(1) or (3) since those divisions apply to first, second, and third-degree
felonies. Thus, by statute, the parole board has the discretion to subject Lewis to a
period of postrelease control that could be up to three years. In the sentencing
judgment entry, the trial court informed Lewis that “he is subject to three (3) years of
postrelease control”. 06/05/12 J.E.
      {¶20} The Ninth Appellate District in 2009 found that a sentence was void
because the trial court incorrectly stated that the postrelease control for the fourth-
degree felony domestic violence was mandatory. State v. Bedford, 184 Ohio App.3d
588, 2009–Ohio–3972, 921 N.E.2d 1085, ¶ 5–8 (9th Dist.).            Recently the Fifth
Appellate District has held that when a trial court directly imposes discretionary
postrelease control upon an offender it errs, because in imposing the discretionary
period, the court is overriding the parole board's statutory discretion under R.C.
2967.28(C). State v. Flanagan, 5th Dist. No. 11-CA-83, 2012-Ohio-1516, ¶ 23-24.
Thus, since the judgment entry in the case at hand does not include the “up to”
language and does not indicate that the imposition of the postrelease control term is
                                                                                    -8-

within the parole board’s discretion, the trial court erred in imposing the postrelease
control sentence that it did.
       {¶21} The Ohio Supreme Court has indicated that when a “judge fails to
impose statutorily mandated postrelease control as part of a defendant's sentence,
that part of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio
St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332, ¶ 26. Thus, since the sentence as to
postrelease control is incorrect that part of the sentence is void and the sentence
must be corrected upon remand. See Fischer at ¶ 29–30.
       {¶22} Consequently, considering the above there is an appealable issue
regarding the sentence.
       {¶23} The second incorrect statement is the trial court’s statement in its
sentencing judgment entry that Lewis is “not eligible for a community control
sanction.” 06/05/12 J.E. As referenced above, given the crime he committed he was
eligible to receive a community control sanction. However, when considering the
record and recommendations of the probation department in the presentence
investigation report, he was not amenable to receiving a community control sanction.
Although the trial court’s statement that Lewis is not eligible for a community control
sanction does not necessarily affect the sentence, and does not constitute reversible
error, since we are already remanding the matter for resentencing on the postrelease
control issue, the trial court should correct the misstatement.
       {¶24} In conclusion, for the reasons expressed above, the postrelease control
sentence must be reversed and the matter remanded to the trial court for
resentencing on that issue.
                                Counsel's Performance
       {¶25} The next potential issue is trial counsel’s performance. To prove an
allegation of ineffective assistance of counsel, the two-prong Strickland test must be
met. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, it must
be established that counsel's performance fell below an objective standard of
reasonable representation. Id. at 687; State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraph two of the syllabus. Second, it must be shown that
                                                                                     -9-

defendant was prejudiced by counsel's deficient performance. Strickland at 687. Or,
in other words, it must be shown that but for counsel's errors the result of the trial
would have been different. Bradley, at paragraph three of the syllabus. If this court
finds that either prong fails, there is no need to analyze the remaining prong because
in order for ineffective assistance of counsel to be shown, both prongs must be
established by the appellant. State v. Herring, 7th Dist. No. 06JE8, 2007–Ohio–
3174, ¶ 43.
         {¶26} Lewis had two different attorneys, one for the plea hearing and a
different one for the sentencing hearing. Lewis indicated that he was satisfied with
both of his counsels’ representation. 05/31/12 Tr. 4. Nothing in the record indicates
that the attorneys were deficient in their performance and/or that prejudice resulted
from a deficient performance. Admittedly, counsel did not mention Lewis’ prior record
at the change of plea hearing. However, that was not deficient performance and/or
resulted in prejudice.       There is no requirement that counsel must mention a
defendant’s record at the change of plea hearing.         Furthermore, in order to be
entitled to a community control sanction a PSI had to be performed. R.C. 2951.03.
That investigation would disclose all priors and would be before the court for
sentencing. It is during the sentencing hearing that counsel gets the opportunity to
object to any inaccurate findings in the PSI. R.C. 2951.03. Thus, waiting until the
sentencing hearing to discuss priors does not amount to prejudice.
         {¶27} Furthermore, the fact that the trial court opted to not follow the plea
agreement does not show a deficient performance on the part of counsel. Lewis was
more than adequately advised that the trial court was not bound by the plea
agreement and could sentence him to any sentence within the applicable sentencing
range.     04/10/12 Tr. 6.     Therefore, there are no appealable issues regarding
counsel’s performance.
                                       Conclusion
         {¶28} For the foregoing reasons, the judgment of the trial court is affirmed in
part, and reversed and remanded in part.            There are no appealable issues
concerning Lewis’ conviction or the imposition of the 16-month prison term.
                                                                                  -10-

Therefore, that portion of the trial court’s decision is affirmed. However, there is an
appealable issue regarding the trial court’s postrelease control sentence. Thus, that
portion of the sentence is reversed and remanded with instructions for the trial court
to properly sentence Lewis to postrelease control under R.C. 2967.28(C). Appellate
counsel’s motion to withdraw is granted.

Donofrio, J., concurs.
Waite, J., concurs.
