[Cite as State v. Messner, 2013-Ohio-4166.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )            CASE NO. 12 MA 127
V.                                               )
                                                 )                  OPINION
MATTHEW MESSNER,                                 )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 10CR1324

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Katherine E. Rudzik
                                                 26 Market Street, Suite 904
                                                 Youngstown, Ohio 44503




JUDGES:

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


                                                 Dated: September 19, 2013
[Cite as State v. Messner, 2013-Ohio-4166.]
DONOFRIO, J.

          {¶1}   Defendant-appellant, Matthew Messner, appeals from a Mahoning
County Common Pleas Court judgment convicting him of aggravated burglary,
following his guilty plea.
          {¶2}   On December 22, 2010, a Mahoning County Grand Jury indicted
appellant on one count of aggravated burglary, a first-degree felony in violation of
R.C. 2911.01(A)(1)(C). Appellant entered a not guilty plea.
          {¶3}   On April 30, 2012, appellant changed his plea to guilty. In exchange for
his plea, plaintiff-appellee, the State of Ohio, agreed to recommend community
control if appellant provided documentation of employment and treatment.               If
appellant did not provide the state with such documentation, then the state agreed to
stand silent at sentencing. The trial court accepted appellant’s plea and found him
guilty.
          {¶4}   Appellant produced the necessary documentation of his employment
and drug addiction treatment. So at sentencing, the state recommended community
control. The trial court, however, sentenced appellant to five years in prison.
          {¶5}   Appellant filed a timely notice of appeal on July 11, 2012.
          {¶6}   Appellant's appointed counsel has filed a no merit brief and request to
withdraw pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th
Dist.1970). In Toney, this court set out the procedure to be used when appointed
counsel finds that an indigent criminal defendant's appeal is frivolous.
          {¶7}   The procedure set out in Toney, at the syllabus, is as follows:

                 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
                                                                                   -2-


       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 counsel of record should be allowed, and the judgment of
       the trial court should be affirmed.

       {¶8}   This court informed appellant that his counsel filed a Toney brief.
Appellant did not file a pro se brief. Likewise, the state did not file a brief.
       {¶9}   Because appellant entered a guilty plea, our review is limited to
examining his plea hearing and his sentence.
       {¶10} The first issue we must examine is whether appellant entered his plea
knowingly, voluntarily, and intelligently.
       {¶11} When determining the voluntariness of a plea, this court must consider
all of the relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-03-
65, 2005-Ohio-552, ¶8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463
(1970). Pursuant to Crim.R. 11(C)(2), the trial court must follow a certain procedure
for accepting guilty pleas in felony cases. Before the court can accept a guilty plea to
a felony charge, it must conduct a colloquy with the defendant to determine that he
understands the plea he is entering and the rights he is voluntarily waiving. Crim.R.
11(C)(2). If the plea is not knowing and voluntary, 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 (1969).
       {¶12} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of federal constitutional rights. Martinez, supra, ¶12. These rights include the
                                                                                -3-


right against self-incrimination, the right to a jury trial, the right to confront one's
accusers, the right to compel witnesses to testify by compulsory process, and the
right to proof of guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c).
       {¶13} The trial court strictly complied with Crim.R. 11(C)(2) in informing
appellant of the constitutional rights he was waiving by entering a guilty plea. Before
accepting appellant’s plea, the trial court informed appellant that by pleading guilty he
was waiving his right to have the state prove its case beyond a reasonable doubt, his
right to a jury trial, his right to subpoena witnesses to assist him, his right to cross-
examine witnesses against him, and his right to remain silent at trial (Plea Tr. 6-7).
Appellant indicated to the court that he understood he was waiving these
constitutional rights. (Plea Tr. 6-7).
       {¶14} A trial court need only substantially comply with Crim.R. 11(C)(2)
pertaining to non-constitutional rights such as informing the defendant of “the nature
of the charges with an understanding of the law in relation to the facts, the maximum
penalty, and that after entering a guilty plea or a no contest plea, the court may
proceed to judgment and sentence.” Martinez, supra, ¶12, citing Crim.R.
11(C)(2)(a)(b).
       {¶15} The trial court substantially complied with Crim.R. 11(C)(2) in informing
appellant of his non-constitutional rights. The court informed appellant of the nature
of the charges against him. (Plea Tr. 5). Appellant told the court that he understood
the charges.      (Plea Tr. 5).   The court informed appellant that it could proceed
immediately to sentencing. (Plea Tr. 7). However, the court stated it was not going
to do so and would instead order a presentence investigation (PSI). (Plea Tr. 7). The
court went on to inform appellant that when he came back to court for sentencing, he
faced a maximum sentence of ten years and a maximum fine of $20,000. (Plea Tr.
7-8). The court also informed appellant regarding postrelease control. (Plea Tr. 8-9).
       {¶16} Because the trial court complied with Crim.R. 11(C)(2) in addressing
appellant and accepting his guilty plea, there are no meritorious appealable issues
concerning appellant's plea.
                                                                               -4-


         {¶17} Next, we must consider appellant’s sentence.
         {¶18} Our review of felony sentences is now a limited, two-fold approach, as
outlined in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-
4912, 896 N.E.2d 124, ¶26. First, we must examine the sentence to determine if it is
“clearly and convincingly contrary to law.” Id. (O'Conner, J., plurality opinion). In
examining “all applicable rules and statutes,” the sentencing court must consider R.C.
2929.11 and R.C. 2929.12. Id. at ¶¶13-14 (O'Conner, J., plurality opinion). If the
sentence is clearly and convincingly not contrary to law, the court's discretion in
selecting a sentence within the permissible statutory range is subject to review for
abuse of discretion. Id. at ¶17 (O'Conner, J., plurality opinion). Thus, we apply an
abuse of discretion standard to determine whether the sentence satisfies R.C.
2929.11 and R.C. 2929.12. Id. at ¶17 (O'Connor, J., plurality opinion).
         {¶19} Appellant was convicted of a first-degree felony. The possible
sentences for a first-degree felony at the time appellant was sentenced were three,
four, five, six, seven, eight, nine, or ten years. Former R.C. 2929.14(A)(1). The trial
court sentenced appellant to five years. Thus, his sentence was within the applicable
range.
         {¶20} Furthermore, the court stated in its sentencing entry that it considered
“the record, presentence investigation report, oral statements and the principles and
purposes of sentencing under Ohio Revised Code § 2929.11, and has balanced the
seriousness and recidivism factors under Ohio Revised Code § 2929.12.”
         {¶21} And the trial court correctly informed appellant that he was subject to a
five-year term of postrelease control.
         {¶22} Thus, appellant’s sentence is not contrary to law.
         {¶23} Moreover, the trial court did not abuse its discretion in sentencing
appellant.
         {¶24} At sentencing, the state did recommend that the trial court sentence
appellant to community control. This was based on the facts that appellant had
employment, had sought treatment for his drug addiction, and appeared to be turning
                                                                                -5-


his life around.   Nonetheless, the trial court sentenced appellant to five years in
prison.
       {¶25} The court gave a detailed explanation of why it sentenced appellant to
prison instead of following the state’s recommendation.          It indicated that it had
reviewed the PSI.        (Sen. Tr. 11).      The PSI was contrary to the state’s
recommendation of community control. (Sen. Tr. 9). The court noted that appellant
was convicted of a first-degree felony. (Sen. Tr. 12). It noted that an armed robbery
of a store was something that it could not tolerate.         (Sen. Tr. 12).   The court
acknowledged the effort appellant had made as admirable. (Sen. Tr. 12). But it also
noted that this was appellant’s fourth felony. (Sen. Tr. 12). And it observed that all of
appellant’s past incidents had not turned his life around. (Sen. Tr. 12). It further
noted that appellant had many requests to assist him in the past, and had ignored
this help. (Sen. Tr. 13). And it pointed out that appellant had used heroin within four
or five days of the current offense. (Sen. Tr. 13). Taking all of these things into
account, the court ordered appellant to serve a five-year prison sentence.
       {¶26} When there is a plea agreement in place and the state recommends a
particular sentence in accordance with the agreement, the trial court’s imposition of a
greater sentence does not render the sentence clearly and convincingly contrary to
law or show that the court abused its discretion. State v. Pete, 7th Dist. No. 12-MA-
36, 2013-Ohio-663, ¶20.       As long as the court forewarns the defendant of the
possible penalties, including the possibility of a sentence greater than that
recommended by the state, it may impose a sentence greater than the sentence that
induced the plea. Id. citing State v. Vari, 7th Dist. No. 07-MA-142, 2010-Ohio-1300.
       {¶27} In this case, before accepting appellant’s plea, the trial court informed
appellant of the possible penalties he faced and specifically noted that sentencing
was up to the court, not to the prosecutor or his attorney. (Plea Tr. 7). Additionally,
at the sentencing hearing, the court gave a well-reasoned explanation why it was
sentencing appellant to five years in prison. Therefore, we cannot conclude that the
trial court abused its discretion in sentencing appellant to prison.
                                                                           -6-


       {¶28} Thus, after conducting an independent review of the proceedings in the
trial court, we find there are no non-frivolous issues for review.
       {¶29} For the reasons stated above, the trial court's judgment is hereby
affirmed. Counsel's motion to withdraw is granted.

Vukovich, J., concurs.

Waite, J., concurs.
