[Cite as State v. Gunter, 2017-Ohio-7247.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105275



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    JARED A. GUNTER
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              DISMISSED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-607771-A

        BEFORE: Boyle, J., Kilbane, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: August 17, 2017
ATTORNEY FOR APPELLANT

Sarah R. Cofta
P.O. Box 16425
Cleveland, Ohio 44116

Jared A. Gunter, pro se
Inmate No. A691-809
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Ashley B. Kilbane
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Jared Gunter, appeals from a judgment convicting him

of burglary and grand theft and sentencing him to 12 months in prison. Gunter’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), seeking leave to withdraw as counsel because there are no meritorious,

nonfrivolous issues for this court to review.

I. Anders Standard and Potential Issues for Review

       {¶2} In Anders, the United States Supreme Court held that if appointed counsel,

after a conscientious examination of the case, determines the appeal to be wholly

frivolous, he or she should advise the court of that fact and request permission to

withdraw. Anders at 744. This request, however, must be accompanied by a brief

identifying anything in the record that could arguably support the appeal. Id. Further,

counsel must also furnish the client with a copy of the brief and allow the client sufficient

time to file his or her own brief. Id. In this case, appointed counsel fully complied with

the requirements of Anders.

       {¶3} Once the appellant’s counsel satisfies these requirements, this court must

fully examine the proceedings below to determine if any arguably meritorious issues

exist. Id.; Loc.App.R. 16(C). If we determine that the appeal is wholly frivolous, we

may grant counsel’s request to withdraw and dismiss the appeal without violating

constitutional requirements, or we may proceed to a decision on the merits if state law so

requires.   Anders; Loc.App.R. 16(C).
       {¶4} On April 18, 2017, this court ordered appointed counsel’s motion be held in

abeyance pending our independent review of the case. We further notified Gunter that

he had until July 25, 2017, to file his own appellate brief, but he did not do so.

       {¶5} Gunter’s counsel has fully complied with the requirements of Anders and

Loc.App.R. 16(C).       Gunter’s counsel states in her Anders brief that she thoroughly

reviewed the record, and concluded that there are no meritorious arguments that she could

make on Gunter’s behalf. Gunter’s counsel has submitted the following two potential

assignments of error:

       1. Whether the trial court’s sentence was contrary to law or unsupported by
       clear and convincing evidence.

       2. Whether appellant’s guilty pleas were made knowingly, voluntarily, and
       intelligently.

       {¶6} After conducting an independent review of Gunter’s case, we dismiss his

appeal and grant appointed counsel’s motion to withdraw.

II. Procedural and Factual Background

       {¶7} Gunter was indicted in July 2016 on three counts: burglary, grand theft,

and petty theft. In September 2016, Gunter withdrew his former plea of not guilty and

pleaded guilty to an amended count of burglary in violation of R.C. 2911.12(B), a

fourth-degree felony, and one count of grand theft in violation of R.C. 2913.02(A)(1), a

fourth-degree felony. As part of his plea, Gunter agreed to $1,300 in restitution to the

victim. The remaining count was nolled.

       {¶8} The trial court sentenced Gunter to 12 months on each offense and ordered
that he serve them concurrently.   The trial court further notified Gunter that he would be

subject to a discretionary period of three years of postrelease control and advised him of

the consequences for violating the conditions of that postrelease control.

III. Sentence

       {¶9} In the first potential assignment of error, counsel argues that one could

argue that Gunter’s sentence was contrary to law or unsupported by clear and convincing

evidence.

       {¶10} An appellate court must conduct a meaningful review of the trial court’s

sentencing decision.   State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012- Ohio-1892, ¶ 7.

 R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he appellate court’s

standard for review is not whether the sentencing court abused its discretion.”     Rather,

the statute states that if we “clearly and convincingly” find that (1) “the record does not

support the sentencing court’s findings under [certain statutes that require findings, which

are not relevant here],” or that (2) “the sentence is otherwise contrary to law,” then we

“may increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the

sentence and remand the matter to the sentencing court for re-sentencing.”             R.C.

2953.08(G)(2).

       {¶11} The Ohio Supreme Court has further explained:

       We note that some sentences do not require the findings that R.C.
       2953.08(G) specifically addresses. Nevertheless, it is fully consistent for
       appellate courts to review those sentences that are imposed solely after
       consideration of the factors in R.C. 2929.11 and 2929.12 under a standard
       that is equally deferential to the sentencing court. That is, 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.

       {¶12} The trial court has the full discretion to impose any term of imprisonment

within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11

and the guidelines contained in R.C. 2929.12. State v. Holmes, 8th Dist. Cuyahoga No.

99783, 2014-Ohio-603, ¶ 8.

       {¶13} Under R.C. 2929.11(A), a felony sentence shall be reasonably calculated to

achieve two “overriding purposes”: (1) to protect the public from future crimes by the

offender, and (2) to punish the offender using the minimum sanctions the court

determines will achieve those purposes.     Further, under R.C. 2929.11(B), the sentence

imposed for a felony must be commensurate with the seriousness of the offender’s

conduct and consistent with sentences imposed for similar crimes committed by similar

offenders.

       {¶14} Under R.C. 2929.12(A), a court sentencing a felony offender has discretion

to determine the most effective way to comply with the purposes and principles of

sentencing outlined in the statute. In exercising its discretion, however, the sentencing

court must consider the seriousness, recidivism, and other mitigating factors set forth in

R.C. 2929.12. Id. Although the trial court must consider the purposes and principles

of sentencing as well as the mitigating factors, the court is not required to use particular

language or make specific findings on the record regarding its consideration of those

factors.   State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31;

State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13.
       {¶15} And, of course, the trial court must comply with all other relevant

sentencing statutes. State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶

10.

       {¶16} After reviewing the transcript of the sentencing hearing, we find that the

record overwhelmingly demonstrates that the trial court properly considered the purposes

and principles of felony sentencing and all of the relevant sentencing statutes. Thus, we

agree that there are no meritorious, non-frivolous issues for our review with respect to

Gunter’s sentence.

IV. Crim.R. 11

       {¶17} In the second potential assignment of error, counsel states that it could be

argued that he did not voluntarily, intelligently, and knowingly enter into the plea.

       {¶18} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.      Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

       {¶19} To ensure that a plea to a felony charge is knowingly, intelligently, and

voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This

provision provides that the court must address defendants personally and (1) determine

that they understand the nature of the charges against them and of the maximum penalty

involved, (2) inform them of and determine that they understand the effect of a plea of

guilty or no contest and that the court may proceed with judgment and sentence, and (3)
inform them of and determine that they understand the constitutional rights that they are

giving up by entering into their plea.      Crim.R. 11(C)(2)(a)-(c).     The United States

Supreme Court specified a defendant’s constitutional rights as (1) the Fifth Amendment

privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the

right to confront one’s accusers.   Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969).

       {¶20} Crim.R. 11(C)(2)(c) sets forth a defendant’s constitutional rights as follows:

       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.

       {¶21} In differentiating between constitutional rights and nonconstitutional rights

under Crim.R. 11(C), courts have held that strict compliance with the rule is required if

the appellant raises a constitutional right delineated in Crim.R. 11(C)(2)(c). State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.                 Substantial

compliance, however, is all that is required for nonconstitutional rights outlined in

Crim.R. 11(C)(2)(a) and (b).        State v. Drake, 8th Dist. Cuyahoga No. 98640,

2013-Ohio-1984, ¶ 5, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

       {¶22} After conducting an independent review of the transcript of the plea hearing,

we find that the trial court engaged in a complete Crim.R. 11 colloquy with Gunter.

Thus, we agree that there are no meritorious, nonfrivolous issues for our review with

respect to Gunter’s plea.
      {¶23} Accordingly, we conclude that this appeal is wholly frivolous and grant

counsel’s motion to withdraw.

      {¶24} Appeal dismissed.

      It is ordered that appellee recover from appellant the costs herein taxed.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and
ANITA LASTER MAYS, J., CONCUR
