[Cite as State v. Hopkins, 2018-Ohio-1340.]



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

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )             CASE NO. 17 BE 0017
V.                                               )
                                                 )                    OPINION
SANTINO TOMAS RAPHAEL-HOPKINS,                   )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Belmont County, Ohio
                                                 Case No. 16 CR 221

JUDGMENT:                                        Motion to Withdraw Granted.
                                                 New Counsel to be appointed.

APPEARANCES:

For Plaintiff-Appellee                           Attorney J. Flanagan
                                                 Courthouse Annex 1
                                                 147-A West Main Street
                                                 St. Clairsville, Ohio 43950
                                                 No Brief Filed.

For Defendant-Appellant                          Attorney John M. Jurco
                                                 P.O. Box 783
                                                 St. Clairsville, Ohio 43950


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                 Dated: April 5, 2018
[Cite as State v. Hopkins, 2018-Ohio-1340.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Santino Tomas Raphael-Hopkins, appeals from a
Belmont County Common Pleas Court judgment convicting him of trafficking in drugs,
attempted possession of drugs, and possession of drugs following his guilty plea.
        {¶2}     On or about August 2, 2016, appellant was operating a motor vehicle in
Belmont County, Ohio. Two deputies from the Belmont County Sheriff’s Department
initiated a traffic stop of appellant for failing to use a turn signal. Upon approaching
appellant’s vehicle, the deputies smelled what they believed was burning marijuana.
The deputies requested appellant’s driver’s license, registration, and proof of
insurance. Appellant could not produce his license or proof of insurance. Appellant
claimed that the car he was operating was a rental car but he could not produce the
rental agreement.
        {¶3}     Appellant was then removed from the car and frisked for weapons.
While the frisk revealed no weapons, the deputy who frisked appellant noticed a
large object in one of appellant’s pockets which he believed to be a large amount of
cash. The deputy also felt a hard object in another one of appellant’s pockets. After
the frisk, appellant confessed that the hard object was something “bad.” When the
deputy asked what something “bad” meant, appellant admitted that the hard object
contained drugs.
        {¶4}     The deputies then searched the car and appellant. The search yielded
several bags of crack/cocaine or heroin in various amounts. The deputies also found
that appellant had $2,445.00 in cash on him. Appellant was then arrested and
indicted in the Belmont County Court of Common Pleas on several counts. Those
counts were:

        Court 1 for trafficking in drugs in violation of R.C.2925.03(A)(1)(C)(4)(a),
        a felony of the fifth degree;
        Count 2 for trafficking in drugs in violation of R.C.2925.03(A)(1)(C)(6)(a),
        a felony of the fifth degree;
        Count 3 for trafficking in drugs in violation of R.C.2925.03(A)(1)(C)(1)(a),
        a felony of the fourth degree;
                                                                                 -2-


       Count 4 for possession of drugs in violation of R.C.2925.11(A)(C)(6)(d),
       a felony of the second degree;
       Count 5 for trafficking in drugs in violation of R.C.2925.03(A)(2)(C)(6)(e),
       a felony of the second degree;
       Count 6 for possession of drugs in violation of R.C.2925.11(A)(C)(4)(c),
       a felony of the third degree; and
       Count 7 for trafficking in drugs in violation of R.C.2925.03(A)(2)(C)(4)(d),
       a felony of the third degree.

       {¶5}   Appellant also faced a forfeiture specification on each count pursuant to
R.C. 2941.1417 in the amount of $2,445.00.
       {¶6}   Appellant filed a motion to suppress all evidence on the basis that there
was insufficient reasonable suspicion to initiate the traffic stop. But on the date of the
suppression hearing, appellant withdrew his motion to suppress and accepted a plea
agreement from the plaintiff-appellee, the State of Ohio. Pursuant to the plea
agreement, the state dismissed Counts 2, 3, 5, and 7. The state also amended Count
4 to attempted possession of drugs, a felony of the third degree. Appellant entered a
guilty plea to Count 1, amended Count 4, and Count 6. The trial court accepted the
plea agreement, ordered a pre-sentence investigation, and scheduled a sentencing
hearing.
       {¶7}   At the sentencing hearing, the trial court sentenced appellant to ten
months of incarceration on Count 1, thirty months of incarceration on Count 4, and
thirty months of incarceration on Count 6. The trial court ordered that these
sentences were to be served consecutively for a total of 70 months. The trial court
also ordered appellant to be under post-release control for a period of three years
after appellant’s release from prison. Finally, the trial court ordered that appellant
would forfeit the $2,445.00.
       {¶8}   Appellant’s sentence was memorialized in a judgment entry dated
January 17, 2017. Appellant filed with this Court what was construed to be a motion
for a delayed appeal on March 17, 2017. In a judgment entry dated April 4, 2017, this
                                                                                -3-


Court granted appellant’s motion for a delayed appeal.
       {¶9}   Appellant’s counsel has filed a no-merit brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In this district, a no-
merit brief is also referred to as a Toney brief. State v. Toney, 23 Ohio App.2d 203,
262 N.E.2d 419 (7th Dist. 1970).
       {¶10} In Toney, this Court set out the procedure to be used when appointed
counsel finds that an indigent criminal defendant’s appeal is frivolous. 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
       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.
Toney 23 Ohio App.2d 203 at syllabus.
                                                                                    -4-


       {¶11} After appellant’s counsel filed a no-merit brief, this Court afforded
appellant 30 days to file a pro se brief listing any potential claims of error in a
judgment entry dated July 31, 2017. In a judgment entry dated September 8, 2017,
this Court afforded appellant an additional 30 days to file his pro se brief or to find
new counsel to prosecute this appeal. Appellant failed to take any action.
       {¶12} While appellant’s counsel did not assert any proposed or potential
assignments of error, appellant’s counsel appears to address the validity of
appellant’s sentence. (Brief of Appellant, 8-9). When an appellant pleads guilty, a
Toney review is limited to the validity of the plea and the sentence. See State v.
Talbott, 7th Dist. No. 07 MA 225, 2008-Ohio-6300, ¶ 16.
       {¶13} Analyzing appellant’s plea, pursuant to CrimR. 11(C)(2)(c), the court
has the duty of: “Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to a 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.” These are constitutional rights and
strict compliance is required. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130,
953 N.E.2d 826, ¶ 15. Nevertheless, the failure to recite the exact language of the
rule will not invalidate a plea agreement if the record demonstrates the court actually
explained each constitutional right in a reasonably intelligible manner. Id. at ¶ 15, 20.
       {¶14} The trial court advised appellant that by pleading guilty, he was waiving
his: right to a speedy and public trial, the right to confront witnesses against him, the
right to compulsory service of witnesses in his favor, the right to have the state prove
his guilt beyond a reasonable doubt, his right against self-incrimination, the right to
appeal, and the right to his assistance of counsel. (Change of Plea Tr. 5-6). But the
trial court did not inform appellant that he would be waiving his right to a jury trial.
       {¶15} While waiving the right to a jury trial was addressed in appellant’s
written guilty plea dated December 6, 2016 and the trial court referenced the written
                                                                               -5-


guilty plea during the change of plea hearing, (Change of Plea Tr. 6), this does not
appear to be strict compliance. The trial court has the duty to impart knowledge of
these rights. “[T]he court cannot simply rely on other sources to convey these rights
to the defendant.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 29. The trial court cannot rely on written pleas to convey the Crim.R.
11(C)(2)(c) rights being waived by pleading guilty. See State v. Strebler, 7th Dist. No.
08 MA 108, 2009-Ohio-1200, ¶ 36-37. The trial court’s failure to inform a defendant of
all five Crim.R. 11(C)(2)(c) rights being waived at the change of plea hearing is
reversible error. See State v. Dosch, 7th Dist. No. 08 MA 63, 2009-Ohio-6534.
      {¶16} For the reasons stated above, counsel’s motion to withdraw is granted.
New Counsel shall be appointed by this Court to file a brief in this matter. The State
will then have 30 days in which to respond.

Waite, J., concurs.

Robb, P., J., concurs.
